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Charter - s.24(2) - Exclusion of Criminal Evidence (8). R. v. Labelle
In R. v. Labelle (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against convictions for "three counts of possession of a Schedule I substance for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 and one count of possession of proceeds of crime over $5,000 under s. 354(1)(4) of the Criminal Code, R.S.C. 1985, c. C-46".
Here the court considered when evidence is "“obtained in a manner” that infringes a constitutional right":[49] Evidence is “obtained in a manner” that infringes a constitutional right if there is a connection between the breach and the impugned evidence. The connection may be temporal, contextual or causal: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 50-56; R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, at para. 17.
[50] However, as noted by this court in R. v. Daye, 2022 ONCA 675, 518 C.R.R. (2d) 63, at para. 8, “[t]he fact that two events happen around the same time does not make those events temporally connected for the purposes of this analysis.”
[51] Although courts have taken a generous view of the “obtained in a manner” threshold, this court has recognized that a temporal connection may be too remote. Its strength is to be assessed by the trial judge on a case-by-case basis: Pileggi, at para. 102; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1005-6.
[52] In this case, the search and the interview were two separate events.
[53] The search warrant was lawfully obtained the day before the interview. Despite the appellant’s submission that there was a “continuous flow of information in both directions—between the lead investigator conducting the interview and the officers searching the appellant’s residence”, this suggestion is not borne out in the record. There is no evidence that the lead investigator conducting the interview and the officers searching the appellant’s residence were in communication with one another during the interview. While the lead investigator went to the appellant’s residence after the interview and assisted with the ongoing search, there was no evidence that he used information obtained during the interview to direct how the search was conducted.
[54] As the trial judge correctly recognized, a causal connection between the breach and the seizure of the evidence is not strictly necessary for evidence to be “obtained in a manner” that infringes Charter rights.
[55] The absence of a causal link is nevertheless significant. Here, the evidence would have been discovered in any event as the warrant was properly obtained before the interview began, and nothing in the appellant’s statement led to evidence being found that would not otherwise have been uncovered. As such, there was no causal link between the breaches and the evidence seized. The trial judge was entitled to find as she did that “[t]he searches were separate transactions from the taking of the statement”.
[56] In any event, even if s. 24(2) was engaged, all three Grant factors weighed in favour of admission: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The search was conducted pursuant to a lawfully-issued warrant executed by the police in good faith, the issuance of which was not tainted by the breach of the appellant’s Charter rights during the interview. In the absence of any causal connection between the Charter breaches and the search, the breaches had no impact on the appellant’s constitutionally-protected privacy interest in his home: see R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 72-73. Finally, the seized evidence was reliable real evidence that was essential to the Crown’s case. . R. v. Singer
In R. v. Singer (SCC, 2026) the Supreme Court of Canada allowed a Crown appeal, this brought against a Saskatchewan CA decision which "acquitted him of failing or refusing to comply with a demand to provide a breath sample".
Here the court considers the Charter 24(2) 'evidence exclusion' doctrine:[109] In my view, the evidence obtained should not be excluded under s. 24(2) of the Charter. I reach this conclusion by considering the impact of admitting this evidence on public confidence in the administration of justice over the long term, based on a balancing of the three lines of inquiry described by this Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on the merits (para. 71; see also R. v. Fox, 2026 SCC 4, at paras. 91, 94, 111 and 118; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at para. 74; Beaver, at para. 116; McColman, at para. 54).
[110] The first line of inquiry under s. 24(2) considers whether the Charter-infringing state conduct is so serious that the court needs to dissociate itself from it. This line of inquiry requires a court to situate the seriousness of the state’s Charter-infringing conduct on a spectrum of culpability. At one end of the spectrum are infringements that are technical, inadvertent, or otherwise minor, as well as those that reflect an understandable mistake. At the other end are infringements that constitute a wilful or reckless disregard for Charter rights, a major departure from Charter standards, or a systemic pattern of Charter-infringing state conduct (Grant, at para. 74; Fox, at para. 94; Tim, at para. 82; Beaver, at para. 120).
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[115] The second line of inquiry, the impact of the breach on the accused’s Charter-protected interests, is driven by society’s interest in protecting Charter rights. It requires determining the extent to which the breach “actually undermined the interests protected by the right infringed” (Le, at para. 151, quoting Grant, at para. 76; Fox, at para. 111; Tim, at para. 90; Beaver, at para. 123). As with the first line of inquiry, a court must situate the impact of the breach on a spectrum (Fox, at para. 111; Tim, at para. 90). In some cases, the impact may be merely fleeting, technical, transient, or trivial, while in others it may be profoundly intrusive or seriously compromise the interests underlying the infringed right (R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 28; Tim, at para. 90). In these latter cases, there is a higher risk that admitting the evidence would signal to the public that Charter rights “are of little actual avail to the citizen”, and would thus bring the administration of justice into disrepute (Grant, at para. 76; see also Fox, at para. 111; Beaver, at para. 123).
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[119] The third line of inquiry under the s. 24(2) analysis asks “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” (Grant, at para. 79; Fox, at para. 118; Tim, at para. 96; Beaver, at para. 129). In conducting this inquiry, a court may consider the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence (Grant, at paras. 81-84; Fox, at para. 118; Tim, at paras. 96-97; Beaver, at para. 129).
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[121] The final step in the s. 24(2) analysis involves balancing the three lines of inquiry (Grant, at para. 85; Fox, at para. 125; Tim, at para. 98; Beaver, at para. 133). The cumulative weight of the first two lines of inquiry is balanced against the third, with a prospective and societal focus on the broad impact of admission or exclusion of the evidence on the reputation of the justice system over the long term (Fox, at para. 125; Tim, at para. 98; Beaver, at para. 134; McColman, at para. 74).
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