Constitutional law – Canadian Charter of Rights and
Freedoms – s. 24(2) – Exclusion of
This majority decision considers the revised approach to the
exclusion of evidence, as set out in R v Grant 2009 SCC
32, and marks an important development in the case law dealing with
the protection of rights under s. 24(2) of the Canadian Charter
of Rights and Freedoms.
While investigating an attack against the appellant's
husband, the police committed several serious and deliberate
violations of her Charter rights. For example, police
exceeded their right to enter and search the property; detained the
appellant without telling her that she was a suspect; and
systematically violated her right to silence. The trial judge found
the breaches had been "flagrant and systematic" and
excluded both the physical evidence and the appellant's
statements to police because the admission of the evidence would
bring the administration of justice into disrepute. The appellant
The Quebec Court of Appeal overturned the trial judge's
decision to exclude the physical evidence on the basis that it had
been obtained without the appellant's participation, the crime
was very serious and the police had not deliberately acted in an
The Supreme Court reviewed the Grant analysis. The
court must consider three factors: the seriousness of the
Charter-infringing state conduct; the impact of the breach on the
Charter-protected interests of the accused; and
society's interest in adjudication of the case on the merits.
The court must then determine whether "having regard to all
the circumstances, admission of the evidence would bring the
administration of justice into disrepute." If a trial judge
has considered the proper factors and has not made an unreasonable
finding, a reviewing court should show considerable deference.
The Supreme Court found the Court of Appeal had exceeded its
role by re-characterizing the evidence to find that police did not
deliberately act in an abusive manner, and by re-considering the
impact of the seriousness of the offence. There was no reason to
interfere with the trial judge's findings.
The Court of Appeal also erred in placing undue weight on the
discoverability principle, to support the finding that the evidence
could have been obtained legally, without the appellant's
participation. Discoverability may be relevant to the first and
second stages of the Grant analysis but is not determinative. In
this case, a warrant could have been obtained early in the
investigation and the evidence could have been obtained legally.
However, "this fact would not have changed the conclusion that
the second branch of the Grant analysis militated in favour of
exclusion, in light of the numerous other factors highlighting the
serious impact on the appellant's privacy and dignity
The Supreme Court allowed the appeal and restored the acquittal
entered at trial.
Deschamps J. dissented. She agreed with the conclusion that the
police had shown a serious disregard for the appellant's rights
but found the trial judge did not evaluate the impact of the
breach. If a warrant had been issued early in the investigations,
the police could have obtained the same physical evidence obtained
in the unauthorized search. Deschamps J. held that the intrusion on
the appellant's privacy rights would have been the same with or
without a warrant, and that she did not have "the highest
expectation of privacy." The trial judge also erred in failing
to consider the reliability of the physical evidence. The physical
evidence was crucial because the appellant's statements to
police – the only other evidence – had been
excluded. In balancing the factors weighing in favour and against
excluding the evidence, Deschamps J. concluded that it was possible
for the Court to recognize the constitutional violations without
excluding the physical evidence.
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The issue as framed by the Federal Court of Appeal was whether the potential impacts on Aboriginal rights asserted by the First Nation were of sufficient probability that they were more than merely speculative.