Exclusion of Evidence
Exclusion of evidence is the Charter remedy under section 24(2): where evidence is obtained in a manner that breached a Charter right, the court must exclude it if, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. Exclusion is one of the most consequential remedies in Canadian criminal procedure — successful 24(2) applications often end Crown cases in acquittals or stays.
Mass Tsang's criminal lawyers handle Charter applications across the full range of offences. For more on Charter analysis, see our entry on the Charter of Rights and Freedoms.
When section 24(2) applies
Section 24(2) applies only where: (1) the evidence was obtained in a manner that infringed or denied a Charter right; and (2) the court is satisfied admission would bring the administration of justice into disrepute. The first element requires a temporal and contextual nexus between the breach and the evidence — the breach need not be the strict cause, but must be more than minimally connected.
The Grant framework
R v Grant, 2009, set out the modern three-part framework for assessing exclusion: (1) the seriousness of the Charter-infringing state conduct (how serious was the breach, was it inadvertent or wilful, was it systemic); (2) the impact of the breach on the Charter-protected interests of the accused (a serious breach affecting core privacy or dignity weighs more heavily); and (3) society's interest in adjudication on the merits (the seriousness of the offence and the importance of the evidence). The factors are weighed against each other.
Charter rights commonly engaged
Section 24(2) applications most often arise from breaches of: section 8 (unreasonable search and seizure — most common in drug, firearm, and impaired driving cases); section 9 (arbitrary detention); section 10(a) (right to be informed of the reason for arrest); section 10(b) (right to counsel — particularly important in impaired driving and statement cases); and section 7 (the right to silence and the right against self-incrimination).
Strategic role
Charter applications are a central engine of criminal defence work. Where the case turns on physical evidence (drugs, weapons) or a statement, exclusion can be case-ending. The application is brought as a pre-trial Charter motion or, less commonly, at trial. The defence files a notice of application, prepares an affidavit setting out the factual basis, and conducts a Charter voir dire — often involving cross-examination of the officers who conducted the search.
Related glossary terms
