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Charter - s.24(2) - Exclusion of Criminal Evidence (8). R. v. Gauthier [Charter 24(2) 'discoverability']
In R. v. Gauthier (Ont CA, 2026) the Ontario Court of Appeal allowed a defendant's criminal appeal, here where the trial court "erred in principle by not considering the unconstitutional strip search as part of her analysis of the seriousness of the breach at step one of the test established in R. v. Grant" (SCC, 2009) [Grant is the leading Charter s.24(2) exclusion of evidence case].
Here this court walks through it's own s.24(2) Grant analysis, including 'discoverability':[27] A trial judge’s decision to admit or exclude evidence under s. 24(2) is entitled to appellate deference, absent an error in principle, a palpable and overriding factual error or an unreasonable determination: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64. Failing to take into account a relevant factor constitutes an error in principle: R. v. Samuels, 2024 ONCA 786, 174 O.R. (3d) 161, at para. 48.
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[31] The trial judge erred by not considering the s. 8 Charter breach in her s. 24(2) admissibility analysis. The mere fact that the s. 8 breach would not, on its own, have triggered the s. 24(2) exclusionary rule did not make this police conduct irrelevant to the Grant analysis. In R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, at para. 26, this court held that merely because Charter breaches do not trigger s. 24(2) does not mean they cannot be considered in the admissibility inquiry. That is because once s. 24(2) is engaged, “the conduct of the police throughout their investigation and even throughout the prosecution…are germane to the admissibility inquiry required under s. 24(2)”: Boutros, at para. 26. The error in the trial judge’s approach was explained by the Court of Appeal for British Columbia in R. v. Robertson, 2019 BCCA 116, 372 C.C.C. (3d) 407, at para. 56, as follows:[T]he requirement of a connection between the evidence and the Charter breach is unique to, and lies at the heart of, the threshold stage of the s. 24(2) inquiry. The judge erred in incorporating a similar requirement into the evaluative stage. [Emphasis in the original.] [32] I cannot accept the respondent’s submission that the trial judge did not have to consider the s. 8 breach because that breach was not relevant or germane to the breach that triggered the s. 24(2) inquiry and because two breaches by two different police officers did not establish a “pattern” of Charter breaches. Although cases such as R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, and Boutros involved the same officers engaging in conduct connected to the triggering breach, that does not mean such a strong connection is required before a court may consider additional breaches at the first step of the Grant inquiry. Indeed, in Harrison, the court considered conduct that occurred well after the investigation – the false testimony of officers in court – that did not even constitute a separate Charter breach. Simply because a pattern of Charter breaches will make a breach more serious does not mean that breaches must form a pattern, committed by the same officers proximate in time to one another, to be considered on the first step of the Grant inquiry.
[33] In any event, as I will explain in more detail below, there was a connection between the breaches. Two officers from the same police force, in the same investigation displayed an ignorance of long-standing Charter standards. As the Supreme Court explained in Grant, the rationale for considering improper police conduct, including a pattern of abuse, at step one is that “for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge:” at para. 75. This policy rationale should favour, rather than discourage, the consideration of additional Charter breaches during the same investigation by the same police force, even if they are committed by different officers.
[34] Having found that the trial judge erred by not considering the s. 8 breach in the admissibility analysis, I will only briefly address the appellant’s allegation that the trial judge overemphasized discoverability.
[35] The term discoverability is sometimes used imprecisely to describe the absence of a causal connection between police conduct breaching a Charter right and the evidence that was obtained. That is how the appellant has used it here. Discoverability and causal connection are different concepts with different applications in the Grant inquiry. Discoverable evidence is evidence that is unconstitutionally obtained but that could have been obtained in a constitutionally-compliant manner. Evidence that is seized pursuant to an unconstitutional warrantless search, where the police otherwise had the grounds to obtain a warrant, is described as discoverable: see for example R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para 93. On the other hand, the term causal connection applies to evidence that was obtained as a consequence of the breach. Breaches that occur after the discovery of evidence (such as the s. 8 breach in this case) cannot have a causal connection to the evidence because those breaches are entirely unrelated to its discovery. Similarly, as in this case, where the police acted with lawful authority to seize evidence with a warrant, the incidence of other breaches, such as the s. 10(b) breach, will have no causal connection to the obtaining of the evidence. Both discoverability and the lack of causal connection can attenuate the impact of a breach on an accused’s Charter-protected interests.
[36] As I will explain, the trial judge did not use the lack of causal connection improperly in her s. 24(2) analysis. However, I reach a different conclusion than the trial judge in how consequential the lack of causal connection is in the final analysis.
[37] The trial judge’s error requires this court to conduct the s. 24(2) analysis afresh. On conducting a full Grant analysis, when factoring in the s. 8 breach, I would exclude the evidence.
[38] The first step of the Grant inquiry strongly favours exclusion. The s. 10(b) breach involved depriving the appellant of his right to counsel for the entire six-hour period of the search. The seriousness of that breach was aggravated by the questioning of the appellant to gather incriminating information. Indeed, in finding that the applicant was detained, the trial judge rejected Officer Moore’s evidence that his questioning of the appellant was not investigative but aimed at speeding up the warrant’s execution. The fact that Officer Moore offered an incomplete recital of the right to counsel did not, as the trial judge said, mitigate the seriousness of the breach. The appellant was clearly detained. The officer’s conduct demonstrated a blatant ignorance of his obligation under s. 10(b) of the Charter.
[39] The s. 8 breach was also very serious and displayed an ignorance of Charter standards. As the trial judge found, the appellant was searched as a matter of “police routine.” Both officers involved in the strip search acknowledged having no notes about the reasons for the search. Moreover, this ignorance of Charter standards went beyond the appellant’s search because both officers acknowledged that every person who was held for a bail hearing was searched the same way.
[40] Given the seriousness of both Charter breaches in this case, the first step of the Grant inquiry pulls strongly in favour of exclusion.
[41] The second step of the Grant inquiry is concerned with the impact of the breaches on the appellant’s Charter-protected interests. The impact here was significant. The appellant was deprived of his right to counsel for six hours. During that time, the police elicited incriminating evidence from him. As this court recognized in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. [42] Despite the serious impact of the breaches, under this step of the Grant analysis, a court must also consider the causal connection between the breach and the discovery of the evidence. The lack of a causal connection between the breach and the evidence obtained can mitigate the impact on an accused’s Charter-protected interests. Indeed, the lack of a causal connection is relevant even where a breach is sufficiently temporally or contextually connected to the obtaining of evidence to trigger s. 24(2): R. v. O’Brien, 2023 ONCA 197, 166 O.R. (3d) 114, at para. 61. At the same time, even in the absence of a causal connection, breaches may still be considered impactful enough as to favour exclusion: Rover, at paras. 47 and 49.
[43] In this case, neither the s. 10(b) breach nor the s. 8 breach have any causal connection to the seizure of the computer evidence. As the trial judge correctly observed, that evidence was seized pursuant to a lawful warrant, and therefore its seizure was constitutionally compliant. The very serious impact of the breaches on the appellant’s Charter-protected interests is therefore mitigated somewhat by their lack of causal connection to the seizure of the computer evidence. Overall, I find that this step of the Grant inquiry moderately favours exclusion.
[44] The third step of the Grant inquiry is concerned with society’s interests in a trial on the merits. As is usually the case with real evidence, the third step of the inquiry favours admission of the evidence. The computer evidence is reliable, and, without it, the prosecution will come to an end.
[45] Finally, when balancing the three lines of inquiry a court must assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. The absence of a causal connection is relevant in the final balancing and may reduce the need to exclude the evidence: O’Brien at para. 61; R. v. Lira, 2023 ONCA 437, at para. 14.
[46] On a final balancing, in my view, the “the long-term repute of the administration of justice requires the sacrifice of the short-term benefit of an adjudication on the merits of this case”: Rover, at para. 49. Both of the first two steps of the Grant inquiry pull in favour of exclusion, and the first step pulls in that direction strongly. Both Charter breaches were the result of, at best, ignorance of long-established Charter standards. The s. 10(b) breach was particularly egregious because the appellant and his partner were both detained for several hours and not properly informed of their right to counsel, and the police obtained incriminating evidence from the appellant during his lengthy detention. The s. 8 breach was the result of an apparently routine police practice that likely impacted the Charter protected-interests of many beyond the appellant. Here, the absence of a causal connection between the breaches and the evidence does not remove the impact of this systemic disregard for the Charter rights of accused people. This is not a case where the third step of the Grant analysis tips the scales back in favour of admission.
[47] Accordingly, I would exclude the computer evidence seized from the appellant’s home. . 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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