Michal Fairburn
 R.
v. Collins (1987), 33
C.C.C. (3d) 1 (S.C.C.)
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Trial fairness
Seriousness of the breach
Repute on the administration of justice
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trial fairness takes on a new meaning,
focussing on conscriptive v. nonconscriptive 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]
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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-butautomatic exclusionary rule for nondiscoverable 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
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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.)
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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
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(1) seriousness of the Charter-infringing state
conduct
(2) the impact of the breach on the Charterprotected interests of the accused
(3) societal interest in adjudication of the
case on its merits

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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
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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.)
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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
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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.)
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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
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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
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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”
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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”