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Charter - s.24(2) - Exclusion of Criminal Evidence (7). R. v. Fox
In R. v. Fox (SCC, 2026) the Supreme Court of Canada dismissed a criminal appeal, this brought against a dismissal of "the Crown’s appeal from Ms. Fox’s acquittal" from "attempting to obstruct or defeat justice contrary to s. 139(2) [SS: 'Obstructing justice'] of the Criminal Code".
The court considers a Charter s.24(2) evidence exclusion issue, here in the unusual case where the Crown admitted the underlying Charter breach:C. Given the Crown’s Concession That Section 8 of the Charter Was Infringed, Should the Evidence Be Excluded Under Section 24(2)?
[86] As I will explain, in my view, the evidence obtained in a manner that breached s. 8 of the Charter should be excluded under s. 24(2).
[87] The trial judge found that the monitor continued to listen to Ms. Fox’s phone call with her client, A.Y., for almost two minutes, even after she heard Ms. Fox say that she had not been “retained” yet by K.G., and that K.G. had contacted Ms. Fox as her “one call to a lawyer”. She ruled that the monitor’s conduct involved “mere inadvertence” and did not breach Ms. Fox’s rights under s. 8 of the Charter. The Court of Appeal for Saskatchewan unanimously disagreed with the trial judge on this point and found that the monitor breached s. 8 of the Charter. Before this Court, the Crown now concedes that the trial judge made an error of law. The Crown accepts that the monitor breached paragraph 6b of the wiretap authorization, because the monitor had reasonable grounds to believe that a solicitor was a party to the communication. This breach of the authorization made the search unreasonable and infringed s. 8. I agree with the Crown’s concession. Because the trial judge did not address s. 24(2), this Court must consider that issue afresh, and determine whether the majority of the Court of Appeal erred in concluding that the evidence ought to be excluded.
(1) The Legal Framework Under Section 24(2) of the Charter
[88] Section 24(2) of the Charter provides that when “a court concludes that evidence was obtained in a manner” that infringed a Charter right, “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.
[89] The purpose of s. 24(2) of the Charter is “to maintain the good repute of the administration of justice”, which “embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole” (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 67). The phrase “bring the administration of justice into disrepute” must be “understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system” (para. 68). The analysis under s. 24(2) starts from the premise that a Charter breach has already damaged the administration of justice and “seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system” (para. 69). The focus of s. 24(2) is societal, targeting systemic concerns rather than punishing the police or compensating the accused (para. 70).
[90] The analysis under s. 24(2) proceeds in two stages. First, the court considers a threshold requirement, which asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right or freedom. The threshold requirement involves a generous and purposive approach to examining the entire chain of events involving the Charter breach and the impugned evidence and asks whether they were part of the same transaction or course of conduct. The connection between the Charter breach and the impugned evidence can be temporal, contextual, or causal, or a combination of all three. Although a causal connection is not required, the connection should not be remote or tenuous. Each case must be considered on its own merits; there is no rigid rule as to what sort of connection is too remote or tenuous (see R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at para. 78; R. v. Beaver, 2022 SCC 54, [2022] 3 S.C.R. 718, at para. 96).
[91] Second, if the threshold requirement is met, the court considers an evaluative component, which asks whether admitting the evidence would bring the administration of justice into disrepute. The evaluative component involves balancing three lines of inquiry: (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 (Grant, at para. 71; Beaver, at paras. 94 and 116; Tim, at para. 74). The balancing is a qualitative exercise and does not involve mathematical precision (Grant, at paras. 86 and 140; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36; Beaver, at para. 117).
(2) The Threshold Requirement
[92] There is no dispute before this Court that the evidence in question was “obtained in a manner” that infringed Ms. Fox’s rights under s. 8 of the Charter. The Court of Appeal was unanimous that because A.Y.’s telephone calls were automatically recorded, there was no causal connection between the monitor’s breach of the authorization and the obtaining of the impugned evidence. At the same time, because the breach and the obtaining of the evidence were simultaneous and part of the same context, there were temporal and contextual connections that were neither remote nor tenuous. As the majority ruled, “[t]he process of gathering the evidence was directly tainted by [the monitor]’s actions” (para. 110). Similarly, the dissenting judge said that “[f]rom a temporal perspective, the Charter breach was . . . coincidental with the obtaining of the evidence” (para. 260). From a contextual perspective, the monitor’s actions were “part and parcel of the same wiretapping exercise”, because she was “a member of the team that was acting under the [a]uthorization” and “[h]er participation was integral to the operation” (para. 260).
[93] I agree with the Court of Appeal. Taking the generous and purposive approach to the “obtained in a manner” requirement, the temporal and contextual connections between the breach and the obtaining of the evidence are sufficient to meet the threshold requirement under s. 24(2). As the dissenting judge noted persuasively, to insist strictly on a causal connection “would immunize all manner of breaches of an authorization where access to a recording depends on a later judicial authorization” (para. 265). This would, in turn, “frustrate the regulatory purpose that stands behind s. 24(2) itself”: to ensure that the admission of the evidence would not bring the administration of justice into disrepute (para. 265).
(3) The Evaluative Component
(a) The Seriousness of the Charter-Infringing State Conduct
[94] The first line of inquiry under the evaluative component of s. 24(2) considers the seriousness of the Charter-infringing state conduct. It asks whether the state has engaged in conduct from which the court should dissociate itself. The concern of this inquiry is not to punish the police but rather to preserve public confidence in the rule of law and its processes. The court must situate the seriousness of the state’s Charter-infringing conduct on the spectrum of culpability. At the less serious end of the spectrum are infringements that are technical, inadvertent, or otherwise minor, or which reflect an understandable mistake. Admitting evidence obtained as a result of less serious Charter breaches only minimally impairs public confidence in the rule of law. At the more serious end of the spectrum are infringements that involve a wilful or reckless disregard of Charter rights, a major departure from Charter standards, or a systemic pattern of Charter breaches. However, even inadvertent conduct may be serious where it breaches Charter rights through significant negligence. To avoid bringing the administration of justice into disrepute, courts should dissociate themselves from state conduct that departs significantly from Charter standards or that shows that state actors knew or should have known that their conduct infringed the Charter (Grant, at paras. 72-74; Tim, at para. 82; Beaver, at para. 120).
[95] In my view, the state conduct in this case is at the more serious end of the spectrum of culpability.
[96] I accept that appellate deference is owed to the trial judge’s finding of fact that the monitor continued to listen to the call between Ms. Fox and her client through “mere inadvertence”, in that she did not intend to breach solicitor-client privilege and did so accidentally. As the trial judge reasoned, the monitor was “in the Saskatoon office” and may not have known that Nychuk & Company is a law firm in Regina (para. 28). The trial judge inferred that the monitor might have believed the firm was “another professional organization or a business” (para. 28).
[97] Even so, inadvertent or passive conduct that precipitates a Charter breach can be very serious, particularly when a wiretap authorization is specifically worded to prevent such inadvertence. Moreover, the trial judge’s finding of “mere inadvertence” was in relation to her conclusion that there was no s. 8 Charter breach.
[98] Although the majority of the Court of Appeal accepted that the monitor breached the wiretap authorization and solicitor-client privilege accidentally, it concluded that the s. 8 breach was “highly serious” and involved a “significant degree of negligence” (paras. 112-13). The dissenting judge similarly concluded that the breach was “serious”, but said that it was “an isolated occurrence, limited to the actions of one state actor” (para. 283). As I will explain, I agree with the majority that the breach in this case was very serious.
[99] The breach was undoubtedly serious because it infringed both a wiretap authorization and solicitor-client privilege. As the dissenting judge noted, “any violation of wiretap terms relating to the protection of solicitor and client privilege during a police investigation is inherently serious” (para. 270, quoting R. v. Collins, 2023 ONSC 1297, 525 C.R.R. (2d) 1, at para. 89). Because electronic surveillance poses an “insidious danger” to the right to privacy in a free society (R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at pp. 43-45), state actors must make every effort to adhere scrupulously to a wiretap authorization. As this Court has recognized, “[e]lectronic surveillance is the greatest leveler of human privacy ever known” (p. 44, quoting United States v. White, 401 U.S. 745 (1971), at p. 756, per Douglas J., dissenting; see also J. A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (13th ed. 2024), at § 11.01). Moreover, this Court has warned that “even accidental infringements of [solicitor-client] privilege erode the public’s confidence in the fairness of the criminal justice system” (Lavallee, at para. 49). This is why “all efforts must be made to protect such confidences” (para. 49). Although the solicitor-client privilege belonged to Ms. Fox’s client, Ms. Fox’s right to privacy was also infringed when the state intruded into her private phone call with her client, in which she had a reasonable expectation of the utmost confidentiality. Because the combined breach of the wiretap authorization and solicitor-client privilege involves a violation of both Charter rights and other legal constraints, this “push[es] the conduct farther along the spectrum towards seriousness” (Hill, Tanovich and Strezos, at § 19.35).
[100] At the same time, I agree with the dissenting judge in the Court of Appeal that “not every breach of a wiretap authorization is so serious that it merits the exclusion of evidence on that basis alone” (para. 270). There is no rule of automatic exclusion after breach of the term of a wiretap authorization relating to solicitor-client privilege.
[101] On the facts of this case, however, the monitor’s breach of the authorization, while accidental, involved unacceptable negligence and resulted in a very serious breach of the Charter. I say this for two main reasons.
[102] First, based on the monitor’s training and the specific undertakings she had given as part of her employment, and the specific words she heard Ms. Fox say, the monitor should have reasonably believed that she was listening to a call with a lawyer and should have stopped listening immediately. The authorization had standard terms and only 19 provisions in total, but only one was specifically directed to the monitor — the “Terms and Conditions in relation to solicitor-client privilege”, reproduced above. The monitor had signed a written confirmation that she had read the authorization, which was posted in the monitor room where she worked. Under the Saskatchewan Provincial Intercept Program, the monitor was “specifically trained” to stop listening and to mark the call as privileged if she reasonably believed that it involved a lawyer (A.R., vol. II, at p. 120; see also p. 146).
[103] However, the monitor continued listening for several minutes after she heard Ms. Fox say that she had not been “retained” yet and that K.G.’s recent call to her was K.G.’s “one call to a lawyer”. This failure to stop listening involved significant negligence. The monitor’s mandate and training called for heightened vigilance to protect solicitor-client privilege. As this Court noted in Descôteaux, “[o]ne does not enter a church in the same way as a lion’s den, or a warehouse in the same way as a lawyer’s office” (p. 889). Regrettably, the monitor did not heed this direction.
[104] I therefore agree with the majority of the Court of Appeal, that “[w]hen a state agent is engaged in a task as serious as monitoring private telephone conversations pursuant to a judicial authorization in a criminal investigation, with the onerous responsibility of being vigilant to not listen to communications involving lawyers, regardless of the content of those communications, ignoring those responsibilities will result in a serious infringement on a person’s s. 8 Charter rights” (para. 113). The monitor’s negligent intrusion into privileged communications compromises public confidence in the administration of justice.
[105] Importantly, evidence that the police officers themselves complied with the terms of the wiretap authorization does not mitigate the monitor’s breach. As police officers, they were simply acting lawfully in compliance with the wiretap authorization. Relatedly, it is irrelevant that the monitor was not a police officer. As a state actor engaged with the Saskatchewan Provincial Intercept Program, the monitor was granted the highest level of access to private conversations and must be held to the high standard prescribed by the wiretap authorization. There is no thus principled reason to dilute the seriousness of the violation because the state actor was not a police officer.
[106] Second, the seriousness of the breach in this case was exacerbated by how the monitoring team responded when they learned that there was a potential intrusion into solicitor-client privilege. Although the two RCMP officers listening live immediately stopped listening, locked down the call, and labelled it as potentially protected by solicitor-client privilege, thereby preventing future access, the civilian monitor was not even told that she had trespassed on a potentially privileged communication. When the monitor was examined-in-chief at the voir dire, she testified that she had never “inadvertently listened to a portion of a call involving a lawyer” (A.R. vol. II, at p. 150). On cross-examination, the monitor acknowledged that at the time nobody specifically instructed her that she could not discuss the contents of the privileged call that she had unwittingly intruded upon (p. 154). As the majority of the Court of Appeal stated:Curiously absent from any of [the monitor]’s testimony was any indication that an issue had been raised with her by any officials regarding the fact that she had monitored a phone call from a lawyer for several minutes, contrary to the terms of the [a]uthorization. This violation of the [a]uthorization was apparently such a non-event from the perspective of the monitors that [the monitor] did not recall a single thing about the telephone call in question. [para. 97] [107] The majority added that there was no evidence that “this breach of the [a]uthorization triggered a reprimand or any ameliorative efforts on the part of [the Saskatchewan Provincial Intercept Program] in order to avoid its repetition, leading to systemic concerns as well” (para. 113). The dissenting judge agreed that “[t]he apparent lack of concern demonstrated by [the monitor] and the overall monitoring team certainly suggests a degree of casualness to her approach to her tasks” (para. 274).
[108] How a party responds when they accidentally intrude on communications protected by solicitor-client privilege can be a critical factor for how a court views and responds to that intrusion. In Celanese, this Court disqualified a law firm from representing a client after the law firm inadvertently came into possession of privileged material of its adversary through the execution of an Anton Piller order, a judicially authorized private search warrant whose purpose is to preserve evidence. The Court stated that focusing on the “inadvertence” of the conduct that resulted in coming into possession of privileged communications can be “overly simplistic” because it conflates two distinct questions (para. 33). First, how did the privileged communications come into the possession of the party? Second, what did that party do when they recognized that the documents were privileged? This Court accepted that “[m]istakes will be made” in the execution of Anton Piller orders but disqualified the law firm from continuing to represent its client in the litigation partly because it did not do the “right thing” when it recognized that the seized material was privileged (paras. 56-57). On the facts of Celanese, the Court said that the “right thing” would have been to promptly advise the adversary of the extent to which the privileged material had been reviewed (para. 62).
[109] By analogy, in this case, the apparent failure of the police to even advise the monitor and the monitoring team that the monitor had potentially breached solicitor-client privilege, as well as their failure to take other internal remedial action, only elevate the seriousness of the s. 8 breach. These factors suggest that the police did not take the monitor’s breach seriously enough and, as the Court of Appeal majority said, raise “systemic concerns” (para. 113). This is so even though there was no evidence that the breach was widespread or recurring. I note that, like an absence of bad faith, an adequate response in this case would not necessarily have mitigated the seriousness of the breach. It would simply have helped rebut the argument that there was an ongoing systemic issue.
[110] As a result, I would find that the breach of s. 8 of the Charter in this case was very serious and involved negligent conduct from which the courts should dissociate themselves (Grant, at para. 72; Harrison, at para. 22; Tim, at para. 82; Beaver, at para. 120). This line of inquiry weighs strongly in favour of exclusion.
(b) The Impact of the Breach on Ms. Fox’s Charter-Protected Interests
[111] The second line of inquiry under s. 24(2) considers the impact of the breach on the accused’s Charter-protected interests. Under this line of inquiry, the court identifies the interests protected by the relevant Charter right and evaluates 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 the impact on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or seriously compromise the interests underlying the rights infringed. 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, breeding public cynicism and bringing the administration of justice into disrepute (see Grant, at paras. 76-77; Tim, at para. 90; Beaver, at para. 123).
[112] The majority of the Court of Appeal found that the impact on Ms. Fox’s Charter-protected interests was “high” (para. 114), while the dissenting judge concluded that it was “not trivial, but . . . also not high” (para. 289). As I will explain, I conclude that the impact is best described as moderately intrusive.
[113] The relevant interests underlying s. 8 of the Charter are individual privacy and human dignity (Grant, at para. 78; Tim, at para. 91). The second line of inquiry in this case thus begins by considering the magnitude or intensity of Ms. Fox’s reasonable expectation of privacy and whether the search demeaned her dignity (R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 91). Here, the monitor intruded upon Ms. Fox’s private phone call, a medium of communication in which a person has a high expectation of privacy (R. v. Ahmad, 2020 SCC 11, [2020] 1 S.C.R. 577, at para. 36; Duarte, at pp. 44-46). In addition, Ms. Fox was speaking with a client in her capacity as a lawyer and would reasonably have expected that her communications would remain private. As this Court has emphasized, “the reasonable expectation of privacy in relation to communications subject to solicitor-client privilege is invariably high, regardless of the context” (Federation of Law Societies, at para. 38). The breach thus substantially impacted Ms. Fox’s Charter-protected interests.
[114] The impact on the Charter-protected interests at stake must also be seen through a wider lens when solicitor-client privilege is involved. An intrusion on solicitor-client privilege has broader repercussions on the repute of the administration of justice. As already noted, solicitor-client privilege “stretches beyond the parties and is integral to the workings of the legal system itself” (McClure, at para. 31). If clients cannot be assured of near-absolute confidentiality when communicating with their lawyers, the seeking and giving of legal advice will be compromised and access to justice will be undermined, threatening the integrity of the administration of justice (Celanese, at para. 34; McClure, at para. 33). As this Court has stressed, “[t]he obligation of confidentiality that springs from the right to solicitor-client privilege is necessary for the preservation of a lawyer-client relationship that is based on trust” (Thompson, at para. 17). That trust is eroded when the state trespasses onto the near-absolute confidentiality of a solicitor-client relationship, heightening the impact on the Charter-protected interests at stake.
[115] Having said this, I recognize that the impact on Ms. Fox’s Charter-protected interests in this case is attenuated somewhat because there was no causal connection between the Charter infringement and the discovery of the impugned evidence, which was discoverable in any event since the call was automatically recorded under the authorization (Grant, at para. 122; Beaver, at para. 125; Cole, at para. 93; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 70-74). As a result, the effect of the unauthorized monitoring on Ms. Fox’s privacy interests was mitigated to some extent.
[116] Ms. Fox briefly contended before this Court that the evidence may not, in fact, have been otherwise discoverable. She asserted that paragraph 6b of the authorization should be interpreted as requiring the authorities to not only discontinue the live monitoring but also to terminate the automatic recording if the monitor reasonably believes that a lawyer is a party to the communication. She submitted that this made the majority’s conclusion even stronger. However, Ms. Fox conceded that this argument was not raised in the courts below. As has been noted often, appellate courts are generally reluctant to consider new arguments when they do not have the benefit of the findings or analysis of the lower courts on the issue (R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, at para. 40; R. v. Campbell, 2024 SCC 42, at para. 143). In my view, addressing this issue could have consequences for other wiretap authorizations that use similar standard terms to those used in this case. Because I conclude that the evidence should be excluded without relying on this argument, I would decline to address it further.
[117] I conclude that the impact of the breach on Ms. Fox’s s. 8 rights was high but that it was attenuated somewhat by the lack of causation between the breach and the discovery of the evidence. On balance, I would describe the impact of the breach on Ms. Fox’s Charter-protected interests as weighing moderately in favour of exclusion.
(c) Society’s Interest in the Adjudication of a Case on Its Merits
[118] The third line of inquiry under s. 24(2) considers society’s interest in the adjudication of a case on its merits. It asks whether the truth-seeking function of the criminal trial process would be better served by admitting or excluding the impugned evidence. Relevant factors include the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence (Grant, at paras. 79-84; Côté, at para. 47; Beaver, at para. 129). Reliable evidence that is critical to the Crown’s case will generally pull towards inclusion (Grant, at paras. 80-81; Tim, at para. 96). At the same time, this Court has rejected an approach that weighs one factor above the others as reflecting a “limited view of public confidence” (R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 55). As noted in Grant, the seriousness of the impugned conduct may “cut both ways”: the public has a strong interest in ensuring that serious charges are adjudicated on the merits of the case, but it also has a vital interest in maintaining a justice system that is “above reproach, particularly where the penal stakes for the accused are high” (para. 84).
[119] The majority of the Court of Appeal accepted that the evidence in question is highly reliable and essential to the Crown’s case for the serious offence of a lawyer allegedly attempting to obstruct justice. At the same time, the majority viewed the evidence as being “not particularly strong with regard to the proof of the offence for which Ms. Fox has been charged” (para. 115). The dissenting judge agreed with the majority regarding the reliability of the evidence, its importance to the prosecution’s case, and the seriousness of the offence, but did not address the strength of the evidence as a factor under s. 24(2).
[120] In my view, this line of inquiry pulls strongly towards admission of the impugned evidence. The evidence is reliable, consisting of a recording and verbatim transcript of a phone call. It is critical evidence for the prosecution and forms the bulk of the Crown’s case. The offence alleged — attempted obstruction of justice by a lawyer — is undeniably serious. Society has a strong interest in the adjudication of this case on its merits.
[121] At the same time, I respectfully disagree with the majority of the Court of Appeal that the strength of the evidence is a relevant consideration under s. 24(2) of the Charter. The purpose of s. 24(2) is to determine the long-term, societal impact of admitting evidence obtained as a result of a Charter violation on the repute of the justice system. As the Crown correctly notes, s. 24(2) “does not invite a standalone assessment of the ultimate strength of the evidence for proving the charge. Such opinion should not have a part to play in s. 24(2) because it has little to do with the effects of a Charter violation” (A.F., at para. 136). Instead, it is for the trier of fact to determine the strength of the evidence in the context of the trial.
[122] The reliability of the evidence differs from its strength; only the former is relevant under s. 24(2). Reliability is concerned with accuracy (R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 82, citing R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41). Evidence may be reliable, yet may not be strong evidence in proving the case against the accused. As noted by Professor Steven Penney and Justices Vincenzo Rondinelli and James Stribopoulos, “[i]n assessing reliability, courts do not weigh the overall strength of the evidence” (Criminal Procedure in Canada (3rd ed. 2022), at ¶10.166). Reliability is properly considered under s. 24(2), because evidence obtained in a manner that reduces its reliability or accuracy undermines the truth-seeking function of the criminal trial process and the long-term repute of the justice system. In Grant, the Court noted that a Charter breach may undermine the reliability of the evidence obtained and thus weighs in favour of exclusion of the evidence under s. 24(2):[The] public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of the exclusion of the evidence. The admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. [Emphasis added; para. 81.] [123] The importance of the evidence to the Crown’s case is tied to its reliability. If the evidence is of questionable reliability, its admission is more likely to bring the administration of justice into disrepute if it forms the entirety of the Crown’s case against the accused. On the other hand, when the evidence is highly reliable and its exclusion would “effectively gu[t] the prosecution” because it is central to the Crown’s case, exclusion may more negatively impact the repute of the administration of justice (Grant, at para. 83).
[124] I therefore conclude that the majority of the Court of Appeal erred in considering the strength of the evidence in the third line of inquiry under s. 24(2).
(d) The Final Balancing
[125] The final step in the s. 24(2) analysis involves balancing the three lines of inquiry to determine whether admitting the impugned evidence would bring the administration of justice into disrepute (Grant, at para. 85; Tim, at para. 98; Beaver, at para. 133). The balancing is qualitative and does not admit of mathematical precision (Grant, at paras. 86 and 140; Tim, at para. 98; Harrison, at para. 36). The focus of the balancing is the long-term integrity of, and public confidence in, the administration of justice. The balancing is prospective: it seeks to ensure that evidence obtained through a Charter breach does not cause further damage to the justice system. The balancing is also societal: the goal is not to punish the police but rather to address systemic concerns regarding the broad impact of admitting the evidence on the long-term repute of the justice system (Grant, at paras. 69-70; Tim, at para. 98; Beaver, at para. 133).
[126] No single line of inquiry can overwhelm the weighing exercise under s. 24(2) (Cole, at para. 95; Côté, at para. 48; Harrison, at para. 40). Nor does the final balancing involve asking whether the majority of the relevant lines of inquiry favour exclusion in a particular case (Harrison, at para. 36). Instead, “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” (R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393, at para. 90 (emphasis in original); Beaver, at para. 134). “[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).
[127] In my respectful view, balancing the three lines of inquiry, the first two lines of inquiry cumulatively make a strong case for exclusion that outweighs society’s interest in the adjudication of a case on its merits.
[128] The monitor committed a serious breach of the Charter by negligently ignoring the clear terms of the wiretap authorization and trespassing on the fundamental right to solicitor-client privilege — a right that has constitutional dimensions and is foundational to the justice system in Canada. The monitor eavesdropped on a lawyer’s phone call with her client for several minutes, even though it should have been obvious to her that she should have stopped listening. The seriousness of this breach was then exacerbated by the failure of the police or the civilian monitoring team to take appropriate remedial action. The breach was treated with a casualness that did not match the occasion and the near-absolute protection of solicitor-client privilege that this Court has repeatedly insisted upon. These factors strongly pull towards exclusion of the evidence.
[129] The impact on Ms. Fox’s Charter-protected interests was moderately intrusive. Although the Charter breach was not causally connected to the obtaining of the evidence, Ms. Fox had a high expectation of privacy in her private phone call with her client. Any intrusion into the lawyer-client relationship, as occurred here, also has a potential chilling effect on the provision of legal advice and access to justice.
[130] In my view, taken together, the seriousness of the breach and the impact on Ms. Fox’s Charter-protected interests outweigh the otherwise strong interest that society has in the adjudication of this case on its merits.
(4) Conclusion
[131] I conclude that the admission of the non-privileged part of the phone call between Ms. Fox and her client would bring the administration of justice into disrepute. Accordingly, I would exclude this evidence under s. 24(2) of the Charter.
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