Standard of Review
Absent legal error, a palpable and overriding error, or an unreasonable conclusion, this court defers to the trial judge’s ruling: R v Hall, 2016 ONCA 013 at para 63; R v Ting, 2016 ONCA 57 at para 74
Where the trial judge has considered the three lines of inquiry, appellate courts should defer to the trial judge’s ultimate decision. Deference is not warranted, however, where the trial judge’s reasoning on the application of s. 24(2) of the Charter was sparse, deficient and erroneous in material ways: R v Harflett, 2016 ONCA 248 at para 55
Where the appeal court considers the trial judge’s finding of no charter breach to be in error, the appeal court owes no deference to the trial judge’s section 24(2) analysis: R v. Wong, 2015 ONCA 657
The Test
Precondition: Obtained in a manner
The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal, or a combination of the three. The connection must be more than tenuous: Coderre at paras 14-18
The “obtained in a manner” requirement allows the court, in an appropriate case, to exclude the evidence because of a Charter breach occurring after the evidence was discovered: R v Pino, 2016 ONCA 389 at para 48; R v Shang En Wu, 2017 ONSC 1003
Step 1: Seriousness of the Breach
The court must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter: R v Coderre, 2016 ONCA 276 at para 20
In Harflett, the officer's invariable practice of searching every car was said to fit the description of an impermissible “fishing expedition conducted at a random highway stop." This was characterized as falling at the serious end of the spectrum of state misconduct and therefore favoured exclusion of the evidence: R v Harflett, 2016 ONCA 248 at paras 40-45
It is an error of law for a trial judge to speculatively try to explain or justify police conduct that infringes the Charter (in the Pino case, dishonesty). This evidence must come from the evidentiary record (generally, the officers themselves) and it is the Crown's burden to advance any such explanation in this part of the analysis: R v Pino, 2016 ONCA 389 at paras 95-97
Re Dishonest police conduct: "The integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of theCharter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority:" Pino at para 102, quoting R v Harrison, 2009 SCC 34
Re firearms case: the breach does not have to be more serious when the evidence sought to be excluded is a firearms case. There is not a different test for admission where the impugned evidence is a firearm: R v Dunkely, 2015 ONCA 597 at para 53.
Step 2: Impact of the Breach on Accused's Charter Protected Interests
The impact of even a minimally intrusive search must be weighed against the absence of any reasonable basis for justification. The impact of an unjustified search is magnified where there is a total absence of justification for it: R v Harflett, 2016 ONCA 248 at paras 47, 56
Example: drivers have a reduced expectation of privacy in their vehicles. However, a reduced expectation of privacy does not mean that an unjustified search is permissible. Harflett at para 48
Step 3: Balancing the interests of the individual and society
The third inquiry is a matter of assessing the harms to individuals and groups in a society caused by the offence in question. This is an objective assessment of safeguarding society’s interests – rather than responding to public outcry or expression of public concern: R v Ting, 2016 ONCA 57 at para 84
The third Grant factor cannot be used to systematically require the admission of reliable evidence obtained in plain disregard of an accused’s Charter rights: R v Harflett, 2016 ONCA 248 at para 54