Michal Fairburn

R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.)

Trial fairness Seriousness of the breach Repute on the administration of justice

trial fairness takes on a new meaning, focussing on conscriptive v. non-conscriptive evidence◦ “... in situations where the evidence would not have been

discovered in the absence of the conscription of the accused in violation of the Charter, its admission would render the trial unfair. In those circumstances it is not necessary to consider the seriousness of the violation or the repute of the administration of justice since a finding that the admission of the evidence would render the trial unfair indicates that the administration of justice would necessarily be brought into disrepute if the evidence were not excluded under s.24(2)”. [para. 110]

Yes – McLachlin J. (as she then was in dissent)

No – LeBel and Fish JJ. in R. v. Orbanski, [2005] 2 S.C.R. 3

Acknowledgement that Stillman was “generally read as creating an all-but-automatic exclusionary rule for non-discoverable conscriptive evidence” and that whether intended by Stillman or not, “seems to go against the requirement of s. 24(2) that the court determining admissibility must consider ‘all of the circumstances’”

In Grant, SCC “took a judicial wire brush to the 20 years of jurisprudential gloss that had built up around s. 24(2) and scrubbed down to the bare words of the section”

R. v. Blake, 2010 ONCA 1

It is an objective inquiry asking whether a reasonable person in all of the circumstances and values underlying the Charter would conclude that admission of evidence would bring the “administration of justice into disrepute”

R. v. Grant (2009), 245 C.C.C. (3d) 1 (S.C.C.) R. v. Harrison (2009), 245 C.C.C. (3d) 86

(S.C.C.)

Long-term repute of the justice system

Not aimed at punishing the police, but on systemic impact, although deterring breaches may be a “happy consequence” of exclusion

(1) seriousness of the Charter-infringing state conduct

(2) the impact of the breach on the Charter-protected interests of the accused

(3) societal interest in adjudication of the case on its merits

Need to place the conduct on a seriousness continuum

The more serious the conduct, the greater the concern for the long-term repute of the administration of justice

Dissociation from grave misconduct

Factors for consideration:◦ Minor violation vs. wilful or reckless disregard

for the Charter◦ Good faith◦ negligence◦ Wilful blindness ◦ Deliberate◦ Extenuating circumstances like need to

preserve evidence ◦ Patterns of abuse◦ Sloppiness - R. v. Dhillon, 2010 ONCA 582 v.

missing “the mark by very little”  R. v. Hines, 2009 ONCA 703

Have to measure impact of breach on the individual May range from “fleeting and technical to

profoundly intrusive” Homes and computers R. v. Morelli, [2010] 1 S.C.R. 253: “it is difficult to

imagine a more intrusive invasion of privacy than the search of one’s home and personal computer”◦ Home: R. v. Stevens, [2011] O.J. No. 3164 (C.A.) at para.

61◦ Home: R. v. Dhillon, supra◦ Computer: R. v. Jones, [2011] O.J. No. 4388 (C.A.); R. v.

Cole, [2012] 3 S.C.R. 34◦ Contrast with car on street: R. v. McKenzie, [2011] O.J.

No. 156 (C.A.)

Statements to authorities and searches that may impact on protected interests of privacy and “more broadly, human dignity”

If high expectation of privacy or demeaning dignity, will be considered more serious

Still retains a useful role when assessing the actual impact of the breach

If would have been obtained anyway, less serious impact of Charter-infringing conduct, unless police deliberately flouted the Charter (turned their minds to getting a warrant and decided not to)

R. v. Cote, [2011] SCJ No. 46

Conscriptive evidence is more easily admissible: R. v. Du, [2010] O.J. No. 4494 (C.A.) (breath); R. v. Ramage, [2010] O.J. No. 2970 (C.A.)

Presumptively inadmissible, but still proceed to three lines of inquiry

Minor breaches will favour admission (ie technical defect in compliance with s. 10(b) at informational or implementational stage)

R. v. Butorac, [2010] B.C.J. No. 1670 (Sup. Ct.) at paras. 107-8; R. v. Mohamud, [2010] ONSC 5305 (Sup. Ct.); R. v. N.Y., 2012 ONCA 745

Strong societal interest in adjudicating cases on their merits …

Ask whether the “truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”

“truth-seeking” remains relevant

Reliability is key concept

“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”

While a valid consideration, seriousness of the offence can cut both ways

Justice system must be “above reproach, particularly where the penal stakes for the accused are high”