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Charter s.24(2) - Exclusion of Criminal Evidence


MORE CASES

Part 2 | Part 3 | Part 4


. R. v. Collins

In R. v. Collins (Ont CA, 2023) the Court of Appeal briefly sets out the Charter s.24(2) exclusion of evidence criteria:
[12] While the trial judge found that the dynamic entry breached the appellant’s s. 8 Charter rights, she did not exclude the evidence found by the police pursuant to s. 24(2) of the Charter. In making this ruling, the trial judge considered the three lines of inquiry in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, namely (1) the seriousness of the Charter infringement, (2) the impact of the breach on the appellant’s Charter-protected interests, and (3) society’s interest in adjudicating the case on its merits.

....

(2) The s. 24(2) Charter ruling

[23] A party seeking the exclusion of evidence under s. 24(2) based on a Charter breach has the onus of proving that the evidence should be excluded: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 89; R. v. Griffith, 2021 ONCA 302, 406 C.C.C. (3d) 244, at para. 51; R. v. Lenhardt, 2019 ONCA 416, 437 C.R.R. (2d) 328, at para. 11. Where the trial judge has considered the proper factors in the s. 24(2) analysis and has made no unreasonable findings, the appellate court owes significant deference to the trial judge’s decision on the issue of whether evidence should be excluded: Grant, at para. 86; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 315, at para. 44; R. v. McColman, 2021 ONCA 382, 156 O.R. (3d) 253, at para. 164.
. R. v. Desilva

In R. v. Desilva (Ont CA, 2022) the Court of Appeal considered principles applying to exclusion of evidence under Charter s.24(2):
i. Applicable Legal Principles

[90] Section 24(2) of the Charter is triggered where evidence is obtained in a manner that violates an accused’s Charter rights. The Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 35, established a three-part inquiry to determine whether the admission of evidence would bring the administration of justice into disrepute such that the evidence should be excluded. The three-part test includes a review of: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.

[91] However, the Grant test does not provide for an automatic exclusionary rule. The accused bears the onus of establishing that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute thereby justifying its exclusion: Tim, at paras. 74-75; Beaver, at para. 117.
. R. v. Beaver

In R. v. Beaver (SCC, 2022) the Supreme Court of Canada engages in a useful walk-through of the Charter s.24(2) 'disrepute test':
(4) Beaver’s Confession Should Not Be Excluded Under Section 24(2) of the Charter

[116] Whether the administration of justice would be brought into disrepute by admitting Beaver’s confession involves examining the impact its admission would have 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 its merits (see Grant, at para. 71; see also R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 139-42; Tim, at para. 74; R. v. Lafrance, 2022 SCC 32, at para. 90).

[117] Section 24(2) of the Charter is not an automatic exclusionary rule precluding the admission of all unconstitutionally obtained evidence. Such evidence will only be excluded when the accused establishes that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute (see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 280; Tim, at para. 75). Balancing the relevant considerations under s. 24(2) is a qualitative determination that is not capable of mathematical precision (Grant, at paras. 86 and 140; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36; Tim, at para. 98).

[118] On appeal, a trial judge’s findings of fact in applying s. 24(2) attract deference, but no deference is owed to the application of the law to the facts (Grant, at paras. 43 and 86; Lafrance, at para. 91). Deference is also not owed when the appellate court disagrees with the trial judge’s conclusions on the Charter breaches (Grant, at para. 129; Lafrance, at para. 91). Nor is deference owed to a trial judge’s s. 24(2) analysis conducted in the alternative, because such an analysis involves an artificial evaluation of the seriousness of a Charter breach and the impact on Charter-protected interests that the trial judge did not find (Grant, at para. 129; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 42; Le, at para. 138; Tim, at para. 72; Lafrance, at para. 91; R. v. G.T.D., 2017 ABCA 274, 57 Alta. L.R. (6th) 213, at para. 51, per Veldhuis J.A., dissenting, appeal allowed substantially for the reasons of Veldhuis J.A., 2018 SCC 7, [2018] 1 S.C.R. 220, at para. 3). Similarly, no deference is owed to a trial judge’s s. 24(2) analysis conducted in the alternative when the trial judge found that the impugned evidence was not “obtained in a manner” that breached the Charter. Such an alternative analysis likewise involves an artificial evaluation of the seriousness of a Charter breach and its impact on Charter-protected interests that the trial judge found were unconnected to the impugned evidence.

[119] As a result, no deference is owed to the trial judge’s alternative analysis of the threshold requirement under s. 24(2). This Court must conduct the s. 24(2) analysis afresh, while respecting the trial judge’s factual findings.

(a) The Seriousness of the Charter-Infringing State Conduct

[120] 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 inquiry requires the court to situate the Charter-infringing conduct on a scale of culpability. At one end of the scale is conduct that constitutes a wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. At the other end of the scale are less serious Charter breaches, including breaches that are inadvertent, technical, or minor or those that reflect an understandable mistake. The more severe the state’s Charter‑infringing conduct, the greater the need for courts to disassociate themselves from it (see Grant, at paras. 72-74; Le, at para. 143; Harrison, at para. 22; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 47; Tim, at para. 82; Lafrance, at para. 93).

[121] The breaches of Beaver’s ss. 9, 10(a), and 10(b) Charter rights arising from his unlawful detention were serious. Sgt. Lines directed Beaver’s detention under non‑existent legislation, the Medical Examiners Act. This involved a reckless disregard for Beaver’s Charter rights and a significant departure from Charter standards. As a member of the Calgary Police Service with 17 years’ experience, Sgt. Lines should have known that the Medical Examiners Act did not exist and that he did not have the authority to detain Beaver at that point. Sgt. Lines’ direction was not an “understandable mistake”, nor was it a mistake made in “good faith”. Instead, as the trial judge found, Sgt. Lines made the direction because “he was looking for a way to maintain control over Mr. Beaver . . ., but was not sure exactly how to do it” (ABQB voir dire reasons, at para. 230). This was a serious Charter violation involving an inappropriate and unjustified overreach of police powers.

[122] The first line of inquiry strongly favours exclusion of Beaver’s confession.

(b) The Impact of the Breach on the Accused’s Charter-Protected Interests

[123] The second line of inquiry under s. 24(2) considers the impact of the Charter breach on the accused’s Charter-protected interests. This inquiry involves identifying the interests protected by the relevant Charter right and evaluating the extent to which the Charter breach “actually undermined the interests protected by the right” (Grant, at para. 76). As with the first line of inquiry, the court must situate this impact on a spectrum. The greater the impact on the accused’s Charter-protected interests, the greater the risk that admission of the evidence would suggest that Charter rights are of little actual avail to citizens, thus breeding public cynicism and bringing the administration of justice into disrepute (see Grant, at paras. 76-77; Le, at para. 151; Tim, at para. 90; Lafrance, at para. 96).

[124] Three factors indicate that the Charter breaches arising from Beaver’s unlawful detention had only minimal impact on his Charter-protected interests.

[125] First, and most importantly, Beaver’s decision to confess was not caused by the Charter breaches arising from his unlawful detention. In appropriate cases, the lack of a causal connection between the breaches and the obtaining of the impugned evidence may mitigate the impact of the breach on the accused’s Charter-protected interests (Grant, at para. 122; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 87; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 43; R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at para. 120). As this Court explained in Grant, the strength of the causal connection between the Charter infringement and the impugned evidence plays “a useful role . . . in assessing the actual impact of the breach on the protected interests of the accused” (para. 122). Here, no such causal connection exists. The trial judge found that the Charter breaches arising from the unlawful detention “had little effect” on either appellant’s decision to confess (para. 247). As the trial judge explained, Beaver’s confession had nothing to do with the Charter breaches arising from the unlawful detention and everything to do with “the evidence that was beginning to unfold”, including, most importantly, Lambert’s videotaped confession (paras. 95 and 247). The lack of a causal connection between the Charter breaches and Beaver’s confession mitigates the actual impact of the breaches on his Charter-protected interests.

[126] Second, Beaver understood the basis for his interaction with the police. This diminished the impact the breach had on his s. 10(a) Charter right to be informed promptly of the reasons for his detention and his s. 10(b) Charter right to counsel. The trial judge found as fact that, during the two hours when Beaver was arbitrarily detained, he “knew why [he was] being detained” (para. 244). Because Beaver and Lambert placed the 9-1-1 call themselves, “[they both] knew, or had to have known, that they were going to be questioned concerning . . . Bowers’ death” (para. 246). And before Beaver was even questioned, he was recorded saying to himself “[t]hey’re gonna take my statement”. Because Beaver understood the “substance” of the reasons for his detention, this attenuated the impact of the ss. 10(a) and 10(b) breaches on his Charter‑protected interests (para. 246).

[127] Finally, the impact of the breach on Beaver’s “liberty from unjustified state interference” and “right to be left alone” protected under s. 9 of the Charter (Le, at paras. 152 and 155 (emphasis deleted)) was also attenuated because Beaver could not reasonably have expected to be left alone. This is not a case where there was an “absence of justification to investigate the [accused] at all” (Le, at para. 155 (emphasis in original)); Beaver and Lambert invited the police to the scene of Bowers’ death, and the police had a common law duty to respond to their call of distress (R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, at paras. 17 and 23). Without diminishing the seriousness of the Charter breaches or disregarding the duty of the police to act in accordance with the law, it must be emphasized that Beaver could not reasonably have expected to be left alone. Indeed, Beaver expected to interact with the police as part of his plan to fabricate a false account of Bowers’ death.

[128] In my view, because the Charter breaches arising from Beaver’s unlawful detention had only minimal impact on his Charter-protected interests, the second line of inquiry favours neither exclusion nor inclusion of Beaver’s confession.

(c) Society’s Interest in an Adjudication of the Case on Its Merits

[129] The third line of inquiry under s. 24(2) considers societal concerns and asks whether the truth-seeking function of the criminal trial process would be better served by the admission or the exclusion of the evidence (Grant, at para. 79). Relevant factors under this inquiry include the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue (Grant, at paras. 79-84; Harrison, at para. 33; Côté, at para. 47; Paterson, at paras. 51-52).

[130] Here, the Charter breaches arising from Beaver’s unlawful detention did not undermine the legality of Beaver’s arrest for murder or the reliability of his confession. Nor is this a case where the Charter breaches effectively compelled Beaver to talk to the state after he had been arrested for murder (Grant, at para. 81). Rather, Beaver spoke voluntarily with Det. Hossack for hours in an effort to deceive her and to obstruct justice. Beaver’s confession was also essential to the Crown’s case against him, as reflected in the agreed statement of facts at trial. And while the seriousness of the offence has the potential to “cut both ways” (Grant, at para. 84), the public has a heightened interest in seeing serious offences such as manslaughter and obstruction of justice adjudicated on the merits.

[131] Excluding reliable evidence critical to the Crown’s case, such as Beaver’s confession, can also undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective, thus bringing the administration of justice into disrepute (see Grant, at paras. 80-81; Harrison, at paras. 33-34; Tim, at para. 96). These considerations apply forcefully here.

[132] The third line of inquiry therefore strongly supports admission of Beaver’s confession.

(d) Final Balancing

[133] The final step in the s. 24(2) analysis involves weighing each line of inquiry to determine whether admitting the evidence would bring the administration of justice into disrepute. This balancing has a prospective function: it aims to ensure that evidence obtained through a Charter breach does not cause further damage to the justice system. It is also societal in scope: its goal is not to punish the police but to address systemic concerns involving the broad impact of admitting the evidence on the long‑term repute of the justice system (see Grant, at paras. 69-70 and 85-86; Le, at para. 139; Tim, at para. 98).

[134] When undertaking this weighing exercise, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry” (Lafrance, at para. 90 (emphasis in original)). “[W]hen the two first lines, taken together, make a strong case for exclusion”, the third line of inquiry “will seldom tip the scale in favour of admissibility” (Lafrance, at para. 90). The third line of inquiry “becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence” (R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, per Doherty J.A.; see also R. v. Chapman, 2020 SKCA 11, 386 C.C.C. (3d) 24, at paras. 125-26 and 130). It is possible that admitting evidence obtained by particularly serious Charter-infringing conduct will bring the administration of justice into disrepute, even if the conduct did not have a serious impact on the accused’s Charter-protected interests (Le, at para. 141). But where the cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting the evidence, the administration of justice will not be brought into disrepute by its admission.

[135] In my view, the third line of inquiry is central to the s. 24(2) weighing exercise in this case. The first two lines of inquiry, taken together, do not make a strong case for excluding Beaver’s confession. Only the seriousness of the Charter breaches strongly favours exclusion. The second line of inquiry pulls neither towards nor against exclusion because the breaches had minimal impact on Beaver’s Charter-protected interests. The cumulative weight of the first two lines of inquiry is overwhelmed by a compelling public interest in admitting Beaver’s confession. This evidence is crucial to the prosecution’s case against an offender who allegedly killed another person and then tried to obstruct the police investigation. On a proper balancing of the lines of inquiry under s. 24(2), I conclude that admitting Beaver’s confession would not bring the administration of justice into disrepute.
. R. v. Beaver

In R. v. Beaver (SCC, 2022) the Supreme Court of Canada considers Charter s.24(2), which is the central criminal evidence provision that excludes evidence where such admission "would bring the administration of justice into disrepute." This provision is quite counter-intuitive as it really tolerates Charter-violative evidence being admitted unless such admission would shock the conscience of the public (ie. "bring the administration of justice into disrepute").

In these quotes the court considers the 'fresh start' doctrine where earlier Charter violations are essentially 'repaired' by obtaining of the evidence 'over again':
(2) The “Obtained in a Manner” Threshold Requirement

[94] There are two components to determining whether evidence must be excluded under s. 24(2). The first component — the threshold requirement — asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right or freedom. If the threshold requirement is met, the second component — the evaluative component — asks whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute (see R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 189 O.A.C. 376, at para. 44, per Doherty J.A., who coined this terminology; see also R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at p. 1000; Tim, at para. 74; R. v. McSweeney, 2020 ONCA 2, 451 C.R.R. (2d) 357, at para. 57; R. v. Lauriente, 2010 BCCA 72, 283 B.C.A.C. 215, at para. 35; S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams’ Canadian Criminal Evidence (5th ed. (loose-leaf)), at § 19:22).

(a) “Fresh Start” and the Threshold Requirement

[95] Section 24(2) of the Charter is engaged only when the accused first establishes that evidence was “obtained in a manner” that breached the Charter. The threshold requirement “insists that there be a nexus” between the Charter breach and the evidence, absent which “s. 24(2) has no application” (R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 71, per Watt J.A.). Determining whether evidence was “obtained in a manner” that infringed the Charter involves a case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained. There is “no hard and fast rule” (Strachan, at p. 1006; Tim, at para. 78).

[96] The general principles governing the application of the threshold requirement were helpfully summarized by Moldaver J. in R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38:
Whether evidence was “obtained in a manner” that infringed an accused’s rights under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained. The courts have adopted a purposive approach to this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent statement may be temporal, contextual, causal, or a combination of the three. A “remote” or “tenuous” connection between the breach and the impugned evidence will not suffice (Wittwer, at para. 21).

See also R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72, per Laskin J.A.; Tim, at para. 78.
[97] A large body of appellate jurisprudence and academic commentary has recognized that evidence will not be “obtained in a manner” that breached the Charter when the police made a “fresh start” from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous. In some cases, the police may make a “fresh start” by later complying with the Charter, although subsequent compliance does not result in a “fresh start” in every case. The inquiry must be sensitive to the facts of each case (see R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 3 and 21-22; Plaha, at paras. 47 and 53; R. v. Lewis, 2007 ONCA 349, 86 O.R. (3d) 46, at para. 31; R. v. Simon, 2008 ONCA 578, 269 O.A.C. 259, at para. 69; R. v. Woods, 2008 ONCA 713, at paras. 10-11 (CanLII); Manchulenko, at paras. 68-70; R. v. Hamilton, 2017 ONCA 179, 347 C.C.C. (3d) 19, at para. 54; McSweeney, at para. 59; Paciocco, Paciocco and Stuesser, at p. 485; P. J. Sankoff, The Law of Witnesses and Evidence in Canada (loose-leaf), at § 20:10; S. Penney, V. Rondinelli and J. Stribopoulos, Criminal Procedure in Canada (3rd ed. 2022), at ¶¶10.122-10.124; R. J. Marin, Admissibility of Statements (9th ed. (loose-leaf)), at §§ 2:36 and 5:68; D. Watt, Watt’s Manual of Criminal Evidence (2021), at §41.01; Ewaschuk, at § 31:1565).

[98] The concept of a “fresh start” under s. 24(2) of the Charter was adopted from the common law “derived confessions rule”, under which a court examines whether an otherwise voluntary confession is sufficiently connected to a prior involuntary confession to be tainted (Penney, Rondinelli and Stribopoulos, at ¶¶4.50-4.52 and 10.122-10.123; Paciocco, Paciocco and Stuesser, at p. 426, fn. 179, and p. 485, fn. 72). Under this rule, courts evaluate whether a voluntary confession is admissible, despite the prior involuntary confession, by making a “factual determination based on factors designed to ascertain the degree of connection between the two statements”, such as “the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances” (R. v. I. (L.R.) and T. (E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504, at p. 526; see also R. v. R. (D.), 1994 CanLII 131 (SCC), [1994] 1 S.C.R. 881, at p. 882; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at paras. 28-30; Manchulenko, at paras. 67 and 69).

[99] In some cases, evidence will remain tainted by a Charter breach despite subsequent Charter compliance. For this reason, “[c]are should be taken in using the ‘fresh start’ label to resolve ‘obtained in a manner’ inquiries” (Paciocco, Paciocco and Stuesser, at p. 485). Whether evidence was “obtained in a manner” is not determined by whether the state eventually complied with its Charter obligations, but instead is based on whether there remains a sufficient causal, temporal, or contextual connection between the Charter breach and the impugned evidence. In this way, the “fresh start” analysis fits comfortably within this Court’s holistic approach to whether evidence was “obtained in a manner” that breached the Charter.

(b) Cases Illustrating the “Fresh Start” Concept

[100] In Wittwer, Fish J. for this Court accepted that, in principle, the police can make a “fresh start” after a Charter violation, even though he found no “fresh start” on the facts. The accused had made two incriminating statements to the police that were inadmissible because they were made contrary to the accused’s right to counsel under s. 10(b) of the Charter. Five months later, while the accused was in custody on another charge, a different officer informed him of his right to counsel and questioned him again, claiming that he did not know the content of the earlier statements. The accused provided no incriminating information until he was confronted with one of his earlier incriminating statements, at which point he made a third incriminating statement. Fish J. ruled that by referring to the earlier incriminating statement, the police “intentionally and explicitly bridged” the gap between the inadmissible statement and the third statement, thus preserving the temporal, causal, and contextual connections between them (para. 22). He explained that “[w]hat began as a permissible fresh start thus ended as an impermissible interrogation inseparably linked to its tainted past” (para. 3 (emphasis in original)). The third statement was thus “obtained in a manner” that breached the Charter and was then excluded under s. 24(2).

[101] By contrast, in Simon the Ontario Court of Appeal found that the police did make a “fresh start”. In that case, the police had placed the accused under surveillance while investigating sexual assaults and arrested him for being in possession of a stolen van. They advised him of his right to counsel under s. 10(b) of the Charter in connection with the stolen van, but they did not advise him of his s. 10(b) right in connection with the sexual assaults before they questioned him about them. During questioning, the accused gave his written consent to provide the police with a saliva sample for DNA analysis for the sexual assault investigation. When giving this consent, the accused acknowledged that he did not have to provide the sample, that it could be used against him in criminal proceedings, and that he had the right to discuss with a lawyer whether to provide it. The DNA analysis of the saliva sample ultimately incriminated the accused in the sexual assaults. In ruling that the saliva sample was admissible, Doherty J.A. acknowledged that the police breached s. 10(b) of the Charter by failing to advise the accused of his right to counsel in relation to the sexual assault investigation, but ruled that the police made a “fresh start” by severing this earlier Charter breach from their later conduct. In Doherty J.A.’s view, by obtaining the accused’s written consent for the saliva sample, “the officers administered a focussed and powerful antidote to their earlier s. 10(b) breach” (para. 70), and drove “a wedge between the giving of the sample and the earlier breach of s. 10(b)” (para. 74). Doherty J.A. concluded that because the police had “effectively disconnected the decision to give the sample from any potential effect of the prior s. 10(b) breach” (para. 74), the saliva sample was not “obtained in a manner” that breached the Charter.

[102] These principles apply to any form of evidence that the police obtain following a Charter violation; they are not limited either to successive statements or to s. 10(b) Charter violations. Although many “fresh start” cases have involved successive statements to persons in authority (see, for example, Plaha; Lewis; Woods; Hamilton; McSweeney), I agree with the observation of Watt J.A. in Manchulenko, at para. 70, that “[n]o principled reason exists to confine the ‘fresh start’ jurisprudence” to such cases and that “[t]he rationale that underpins the ‘fresh start’ principle is the same irrespective of the specific form the evidence proposed for admission takes”.

(c) Potential Indicators of a “Fresh Start”

[103] When undertaking the case-specific factual inquiry into whether the police effected a “fresh start”, some potentially illustrative indicators include:
. Whether the police informed the accused of the Charter breach and dispelled its effect with appropriate language (R. (D.), at p. 882). What constitutes appropriate language will vary with the circumstances of the case. In some cases, it may be sufficient to say, “we’re going to start over”; in other cases, more detailed or specific language may be needed to remove the taint from the earlier Charter breach;

. Whether the police cautioned the accused after the Charter breach but before the impugned evidence was obtained (Plaha, at para. 53; Hamilton, at paras. 58-59; Woods, at para. 9). Ideally, this would involve both a primary caution (“You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence” (Singh, at para. 31; Manninen, at p. 1237)), and a secondary caution (“Your decision to speak to the police should not be influenced by anything you have already said to the police or the police have already said to you” (Manninen, at p. 1238));

. Whether the accused had the chance to consult counsel after the Charter breach but before the impugned evidence was obtained (Manchulenko, at para. 69; Woods, at paras. 5 and 9; R. v. Dawkins, 2018 ONSC 6394, at para. 62 (CanLII));

. Whether the accused gave informed consent to the taking of the impugned evidence after the Charter breach (Simon, at para. 74);

. Whether and how different police officers interacted with the accused after the Charter breach but before the impugned evidence was obtained (see Lewis, at para. 32; Woods, at para. 9; McSweeney, at para. 62; I. (L.R.) and T. (E.), at p. 526; Dawkins, at para. 62); and

. Whether the accused was released from detention after the Charter breach but before the impugned evidence was obtained.
(3) Application

(a) The Trial Judge’s “Fresh Start” Analysis Contained Errors of Law

[104] Although the trial judge reviewed the case law on “fresh start” principles, I have concluded that he erred in law by failing to apply the correct legal test and by applying an incorrect legal principle (R. v. Chung, 2020 SCC 8, at paras. 13 and 18).

[105] First, the trial judge failed to apply the correct legal test by focussing solely on the conduct of the police that was Charter-compliant, without expressly analyzing whether or how that conduct severed the temporal, causal, or contextual connection between the earlier Charter breaches and the appellants’ confessions or rendered those connections remote or tenuous. The trial judge appeared to proceed on the basis that the appellants’ arrest for murder was sufficient to constitute a “fresh start”. He framed the issue as “whether [the appellants’] arrests following Det. Vermette’s direction [to arrest the appellants for murder] resulted in a ‘fresh start’ such that the Charter breaches are ‘cured’” (para. 206). He concluded that the arrests resulted in a “fresh start” and compliance with the Charter, without considering the connection between the earlier Charter violations and the confessions (para. 209).

[106] Second, and relatedly, the trial judge applied the wrong legal principle by repeatedly referring to the police as having “cured” the earlier Charter breaches (paras. 191, 206, 215, 239 and 253). It is unhelpful and inaccurate to describe the police as having “cured” the earlier Charter breaches. It is unhelpful because it obscures the real issue: whether there is a sufficient connection between the Charter breaches and the impugned evidence, and not simply whether there was subsequent Charter compliance. It is inaccurate because subsequent Charter-compliant conduct by the police does not “cure” earlier Charter breaches; the Charter breaches still occurred and merit proper consideration under the threshold requirement. Instead, Charter‑compliant conduct may dissociate the Charter breaches from the impugned evidence by severing any connection between them or by rendering any connection remote or tenuous. Only then is the evidence not “obtained in a manner” that breached the Charter.


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Last modified: 13-12-23
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