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Charter Infringements: The Impact on Evidence Exclusion - Harrison Gray

The continued dichotomy of an individual’s Charter rights versus the interest of protecting society is an area of much debate and continuous scrutiny. There are a multitude of cases where the decision of whether admitting evidence that was obtained in such a way that may be inconsistent with the accused’s Charter right should be done, even if there is an apparent conflict with society’s interests.

Analysis by the Courts when Charter rights are Infringed

In R. v. Grant the Supreme Court of Canada applied a three-step analysis on how to determine if the evidence obtained after the infringement of a Charter right should be excluded from evidence.[1]

1. The seriousness of the Charter-infringing conduct;

2. The impact on the Charter-protected interest of the accused;

3. Society’s interest in an adjudication of the case on the merits.[2]

The first two steps are an analysis that typically seeks to provide reasons for exclusion of evidence based on the individual’s Charter rights being infringed and the severity of the infringement. The third step of the analysis is important, because as a society we can expect that our judicial system will evaluate cases on their merits, and this step evaluates how the exclusion of evidence would impact society’s interests. This has been described by the Court as its “truth-seeking function.”[3] Often, these steps will come into direct conflict with each other. The first two steps can both point to evidence being excluded, but the third step can sometimes save the evidence from exclusion; however, the court is not to let the third step overwhelm the first two steps. Thus, we have a subjective balancing of the three steps for the court to decide what to do with the obtained evidence. Cases have been decided both for and against the exclusion of evidence, and analysis of the court’s thinking must be done to differentiate the thinking behind how the three-step analysis should be weighted in the future.

Inclusion of Evidence Despite Charter Infringements

A good illustration of this weighted style of analysis is found in R. v. Cole.[4] This case involved a high school teacher who was found to have nude photographs of an underage student on his computer. What is important about this case is that the Supreme Court applied the three-step analysis we saw in R. v. Grant. What the court found was that the evidence obtained by the police was in fact done in such a manner that the courts ruled that the first and second steps of the analysis used in Grant would support the exclusion of the evidence from the trial proceedings.[5] What is interesting, however, is that when the court analyzed the case using the third step, they found that the evidence should not be excluded because it would be impairing the “truth-seeking function of the criminal trial process.”[6] What the Supreme Court did in this case is important, as they weighted the steps of the analysis by saying that in the first two steps, there was reason for the evidence to be excluded but it was only slightly past the threshold. In the third step of the analysis, however, they stated that the exclusion of evidence would severely impair the truth-seeking process. Justice Abella had a dissenting view in this case that helps to illustrate how the weighting of each step of the analysis leads to a conclusion. Relying on the same three factors listed above, Justice Abella dissented on the basis that the investigating officer’s decision not to get a warrant was serious police misconduct.[7] Justice Abella agreed with the rest of the Court that there was police misconduct in the manner that the evidence was obtained, but stated that it was, in her view, serious police misconduct.[8] Because Justice Abella viewed the misconduct more seriously than the other judges in the first step of her analysis, it led her to judgement that the evidence should be excluded. This poses questions as to how the analysis will be used in the future, as the case of R. v. Cole has shown how there is inherent subjectiveness to the analysis. I am discussing this case not to debate the facts and how it relates to the specific analytic framework used, but instead to illustrate how the analysis can be done but still leave questions of how it will apply to other cases using the same approach. Evidence obtained through Charter infringement is an issue that needs to be looked at thoroughly because the common law does not have a truly objective standard for what is and what is not acceptable. Just because there is a common law analysis that has become the standard does not mean the application of such a standard will be consistent across different cases, with various parts of the Charter being violated and with differing severity of the infringements.

Exclusion of Evidence Due to Charter Infringement

The recent case of R. v. Neubuhr[9] in 2021 is a case that concerns itself with the balancing of these two often diametrically opposed principles of individual Charter rights against the interests of society. In this case, the Brandon Police Service conducted a traffic stop of Mr. Neubuhr. The officers found that Mr. Neubuhr did not have an active driver’s license and the vehicle was unregistered, but he was able to provide picture identification. Computer searches by the police officers showed that Mr. Neubuhr had no criminal record or outstanding warrants for his arrest. At this point, the officer stated that nothing so far was out of the ordinary for a routine traffic stop;[10] there was no evidence of intoxication, reckless driving, or that the vehicle had been stolen. The officer at this point called for backup as he planned to arrest for Mr. Neubuhr for driving without a license; he felt backup was necessary due to the dog in the vehicle needing to be placed in a separate car before the arrest and ensuing paperwork could be completed.[11] The judge noted how there was nothing about the facts that would make it reasonable for the officer to behave in the way he did. A simple notice to appear would have sufficed, and arresting Mr. Neubuhr was unlawful and violated his section 9 rights under the Charter.[12] The arresting officer's concern was then to complete the paperwork for the tow truck company, so he searched the car for more details about the ownership of the vehicle. While completing the search, he found a single empty beer can on the floor in the back seat which led him to complete a “bumper-to-bumper” search of the vehicle.[13] During the search, a satchel containing methamphetamine and fentanyl was discovered. The judge ruled, in this case, that this search was a section 8 breach and this search and seizure of the car was unreasonable.[14] The three-step analysis from R. v. Grant was used, and the first two steps supported the exclusion of the evidence. The third step of analysis clearly lended support to the evidence being included. The judge in R. v. Neubuhr decided that, despite the harm society experiences from fentanyl, the police misconduct was severe enough to lead to evidentiary exclusion.

Reconciling Cole & Neubuhr and Implications for the Future

R. v. Cole and R. v. Neubuhr can be compared, and some questions arise for the common law to address. This is not to say that they are cases of special importance, but the cases instead serve as a microcosm for the analytical approach used for Charter infringement and evidence exclusion in Canadian common law. There is no doubt possession of child pornography, as was the case in R. v. Cole, is extremely serious and causes society great harm. There is also no doubt that fentanyl has created a crisis and caused the deaths of many people; in fact, it would be my suspicion a substantial proportion of those reading this may know someone who has died from a fentanyl overdose. It would not be unreasonable to state both crimes are horrid. But if we accept this, then what is the difference between the cases against Cole and Neubuhr? The judgements in these cases differ in that in Cole, the court says the infringement was minor, and in Neubuhr, the infringement was more serious (Justice Abella’s dissent in Cole aside). Does this then imply that Charter infringements by police in obtaining evidence for serious crimes are okay if they are minor infringements? Does that not bring into question the purpose of the Charter at a fundamental level? What these questions raise is the idea that despite a formulaic approach, the common law has developed to address whether evidence obtained during a Charter infringement should be excluded, and there is inherent subjectivity to the process. This point is not to argue that the judgements were wrong or that one crime is worse than another; instead, it is simply to illustrate what the common law is currently and to call to attention some issues that may arise in the future. As Neubuhr is a very recent case, it will be noteworthy to see how the use of the analysis seen in Grant is interpreted in the coming years.

[1] R v Grant, [2009] 2 SCR 353. [2] Ibid at paras 75-78. [3] Ibid at paras 79-81. [4] R v Cole, [2012] 3 SCR 34. [5] Ibid at paras 59-79. [6] Ibid at para 97. [7] Ibid at para 110. [8] Ibid at para 135. [9] R v Neubuhr, [2021] MBQB 225. [10] Ibid at para 17. [11] Ibid at para 19. [12] Ibid at paras 25-26. [13] Ibid at para 29. [14] Ibid.


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