R. v. Mengesha, 2022 ONCA 654

This brief reasons for decision provides several important reminders and pronouncements concerning analysis under s. 24(2) of the Charter:

WHAT YOU NEED TO KNOW

·         Section 24(2) does not require a causal relationship between a Charter breach and the discovery of the evidence the party seeks to exclude (see also R. v. Whittwer, 2008 SCC 3, at para. 21).

·         Where a trial judge erroneously fails to a conduct a s. 24(2) analysis, the Court of Appeal must conduct the admissibility analysis for the first time on appeal (see also R. v. Keshavarz, 2022 ONCA 312, at para. 58 and R. v. Boutros, 2018 ONCA 375, at para. 31).

·         Despite sever ss. 7 and 8 Charter breaches, Court of Appeal concludes evidence should be admitted under s. 24(2): “The damage caused to families, innocent law-abiding citizens, and the social fabric cannot be overstated. Society looks to the courts to recognize the day-to-day danger caused by drugs and firearms.”

Read the full decision here.

Section 24(2) – Generally

Section 24(2) of the Charter reads as follows:

24. (2) Where, in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

It is remedial provision which allows for the exclusion of evidence where evidence has been obtained in a manner that breaches an accused’s Charter rights.

There are three preconditions to this remedy of exclusion:

(1)    The accused’s Charter rights must have been unjustifiably limited or denied;

(2)    The evidence must have been obtained in a manner that unjustifiably limited or denied a Charter right; and

(3)    Having regard to all of the circumstances, the admission of the evidence in the proceedings must be capable of bringing the administration of justice into disrepute.

The accused, i.e. the applicant seeking resort to this remedy, bears the burden to prove, on a balance of probabilities, that a Charter right has been unjustifiably limited before being entitled to a remedy under s. 24(1).

The Crown, on the other hand, i.e. the party opposing the admission of the evidence, bears the burden of proving whether the admission of evidence would bring the administration of justice into disrepute.

The “test” for the exclusion of evidence under s. 24(2) was established in R. v. Grant, 2009 SCC 32. Known commonly as the “Grant test”, in assessing whether the admission of evidence would bring the administration of justice into disrepute, the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(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.

For a more detailed discussion of s. 24(2), check out Emond’s “Charter Remedies in Criminal Cases” – Volume 8 in the Criminal Law Series. A second edition is coming soon!