The Grant thingy: Charter sec 24 2 does this really mean evidence will be excluded or just justify that the government can infringe on individual Charter Rights?

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Deterrence

Section 24(2) of the Charter of Rights and Freedoms

Introduction:

This paper involves a brief overview of the Canadian exclusionary rule jurisprudence (legal theorization).  As a principled approach, recently transformed by the Supreme Court of Canada in R v Grant (2009) a new framework was adopted under section 24(2) (encapsulating the courts power to exclude illegally obtained evidence) of the Charter of Rights and Freedoms (here after the Charter).  The main principle outlined by the wording of section 24(2) represents the repute of the administration of justice.  Under this new framework in R v Grant (2009) three principles or factors are to be balanced by the courts, called the grant analysis, that are designed to indicate the repute of the administration of justice.  A brief history of both the Canadian and American jurisprudence will be provided.  Focusing on the potential of the Canadian jurisprudence adoption of a deterrence model under a section 24(2) analysis that is more inline with the American model.  This paper will support the assertion that the only true purpose of excluding evidence under section 24(2) is to deter state abuse of individual Charter rights-originalist view.  In support of this assertion, the reformulation of a new model is suggested that supports the deterrence of police misconduct.  In conclusion it will be shown that the exclusionary rule jurisprudence in Canada needs to be reformed towards a model more like that of the American jurisprudence.        

The Charter sets out basic procedural norms.  State actors that include the police, may potentially violate these basic norms. For example, police may illegally search an individual or deny an accused individual their right to council.[1]  When evidence is gathered by police in support of a criminal or summary offence in a manner that infringes or denies a Charter right then it may face exclusion from trial.  Section 24(2) of the Charter provides the court with the power to exclude such illegally obtained evidence at trial.  Section 24 of the Charter: 

“(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (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”.[2]

What section 24(2) of the Charter signifies is a significant remedy for an accused whose rights under the Charter have been found to have been violated or denied.  First, a breach of a Charter right must be identified against the accused, then an analysis begins by the court to determine if the evidence that was obtained because of the breach is to be excluded at trial.  Initiated by an application under section 24(2) by the accused, the court conducts its analysis to determine the repute of the administration of justice.  The principle of repute supports either the inclusion or exclusion of evidence at trial through a framework that has been set out by the court.  The way the court has approached exclusion of evidence at trial has changed over the course of the years since the Charter’s enactment[3]. Today, this approach is based on a framework considering three factors (which themselves can be described as principles).  When these factors are weighed together equally, the jurisprudence suggests a proper determination is indicated as to whether by admitting the illegally obtained evidence would place the administration of justice into disrepute.

The main principle under section 24(2) is to determine that if certain illegally obtained evidence was to be admitted at trial, what impact does it have on society’s view of the administration of justice.   This principle is outlined under section 24(2) as ‘disrepute of the administration of justice’.  The Supreme Court of Canada’s took it upon themselves in the case of R v Grant (2009), to address what they saw as a past failure in section 24(2) jurisprudence in how to best determine this principle.  According to the court in R v Grant (2009), the current “jurisprudence on the issues of detention and exclusion of evidence is difficult to apply and may lead to unsatisfactory results.  It is the duty of the court, without undermining the principles that animate the jurisprudence to date, to take a fresh look at the frameworks that have been developed for the resolution of these two issues.”[4] So, the court determines what the societal view of the administration of justice is by balancing three separate principled factors (hereafter known as factors) under the grant analysis.  This change in framework was a result in the difficulty they saw in the application by lower courts of the previous jurisprudence. This new framework stands as the benchmark for how all courts in Canada are to approach all section 24(2) applications.  

Under the grant analysis, judges are to weigh three independent factors equally.  A balanced approach is to be taken in assessing this framework that was formulated in the case of R v Grant (2009).  These three factors are utilized, according to the court in R v Grant (2009, “when faced with an application for exclusion under s. 24(2), a 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.”[5] These three factors listed above, are open to interpretation by the court as to their particular individual weighting whether they point to inclusion or exclusion of exculpatory evidence.  One factor should never be more determinative over the other and these factors must be balanced together to determine the repute of the administration of justice.[6]  So, once a breach has been recognized to have occurred then the court will examine all of these factors one by one to determine if by allowing the evidence to be admitted brings the administration of justice into disrepute.[7]  Repute of the administration of justice represents a societal view.  The theory behind this is that from this analysis of the grant factors that the courts will be able to correctly represent how society views the administration of justice or its repute.

The courts are legislating when they define what societies view ought to be of the administration of justice in relation to their section 24(2) analysis. The court. in R v Grant (2009), took it upon themselves to clarify what it believed the wording in section 24(2) meant by disrepute.  The court describes it as how society may view the court stating that the

“phrase ‘bring the administration of justice into disrepute’ must be understood in the long‑term sense of maintaining the integrity of, and public confidence in, the justice system. … The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.”[8] 

All values of the Charter being considered in deciding disrepute seems ambiguous because the court does not define what all the values of the Charter are.[9]  The court addresses the idea of disrepute on case-by-case basis, deciding how the public at large would view the administration of justice if certain illegally obtained evidence was admitted.  Arguably, the judiciary is not the proper forum to decide what society’s view is or would be of the administration of justice; that would be the role of the legislature.  Each of the three grant factors, carries some form of societal interest itself, but what must be a consideration of the proper role of the judiciary is that the court gains this societal insight by its own design.  The legislators are the proper institution to represent the will of the people as elected bodes, not the unelected judiciary through some sense of judge made framework.    

Problematically, as a societal concern, the framework set out in R v Grant (2009), does not support the effect of deterring police misconduct.  In this case the court identified infringements of both section 9 and 10 of the Charter.[10]  Mr. Grant was questioned by police on a sidewalk for suspicious behaviour.  When asked by the police if he had anything illegal on his person, Mr. Grant responded that he had in his possession a small quantity of drugs and a firearm.  At issue on appeal to the Supreme Court was whether the firearm and marijuana that were seized by the police officers was admissible as evidence against the accused at trial[11].  According to the majority in R v Grant (2009), applying this new framework the “balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision. However, when all these concerns are weighed, the courts below did not err in concluding that the admission of the gun into evidence would not, on balance, bring the administration of justice into disrepute.”[12] But the majority along with Deschamps J, did agree that the firearm should ultimately be excluded.  Mr. Grant was charged with trafficking a firearm and they found that the crown failed to prove its case.  According to the majority “the trial judge did not find that the accused was in possession of the gun for the purpose of transferring it to another person, the s. 100(1) conviction cannot stand.”[13] The accused was found to be under a psychological detainment by the police where he felt that he was obligated to answer the officer’s questions.  Mr. Grant’s detainment and lack being informed his right to council by the police infringed the accused rights under both sections 9 and 10.[14]   Understanding that the rights under the Charter are not absolute still falls short of explaining the jurisprudence as to why anyone should be subjected to such police intimidation and harassment in violation of their Charter rights.  By the courts indicating that there is no ‘mathematical precision’ to its qualitative analysis, this would mean that it is the judge’s discretion which is the determinative factor in the grant analysis.   Then, if the framework under the grant analysis is not reflective of societies view of the administration of justice, the court is imposing its will upon society.  If this is the case, then government is acting akin to authoritarianism using this framework to justify its own ends.  One would think that commonsensically the Charter was designed to prevent illegal state conduct regardless of whether the police think someone is suspicious or guilty of something.  

Historically, the exclusionary rule jurisprudence in Canada considered that almost any evidence was good evidence, however it was obtained by the police.  Only, after the Charter’s introduction did the court made significant changes to its approach of what types of evidence would be admissible at trial.  Pre-Charter, the courts in Canada were less concerned with how the police obtained evidence.  Clearly, the drafters of the Charter intended the courts to protect these Charter rights from unwanted and unwarranted state intrusions.  According to Steven Perry, Section 24(2) in the Trial Courts: An Empirical Analysis of the Legal and Non-legal Determinants of Excluding Unconstitutionally Obtained Evidence in Canada, prior to “the Charter, courts in Canada had no general power to exclude illegally obtained evidence. After its passage in 1982, courts were required to adjudicate claims of police violations of fundamental, constitutionally entrenched procedural norms.”[15] In the case of R v Devison (1974)[16], the Nova Scotia Court of Appeal stated, that “even if he (the accused) had been knocked down and beaten and the blood sample extracted from him, it would still be admissible. This bright line rule was subject only to the narrow and seldom used exception that gave judges the discretion to exclude evidence that would be “gravely prejudicial” to the accused.”[17] The transition of the courts from their decision making in R v Devison (1974) too R v Grant (2009), was drastic as it gave some promise as to the courts resolve in protecting civil liberties that were now constitutionally protected under the Charter.  With this ‘general power’ in hand, the courts were able to create a framework that would aid them in deciding on a case-by-case basis when they would exclude illegally obtained evidence and become true gatekeepers to the Charter rights.  In addition to this radical change, by way of a civil action, against the police for misconduct may an individual pursue other forms of redress; outlined under section 24(1) of the Charter.  But this alternative form of redress can place a severe financial burden on those otherwise seeking redress for state infringements of their Charter rights.[18] Arguably, the drafters of the Charter did intend the courts to take a deterrence approach to the exclusion of evidence under section 24(2).[19]  Today, the Canadian current section 24(2) framework does not support a deterrence model.  The courts ought to take a harder line on police misconduct in its determination of excluding exculpatory evidence under section 24(2). This will act as a form of deterrence for Charter infringements by state actors when they occur.  

The American exclusionary rule jurisprudence is different than the Canadian model. Their jurisprudence developed from the perspective that if a person is to be considered innocent until proven guilty then all are afforded the same rights equally (excluding forward thinking by the court).  Today, any evidence in the United States that is obtained illegally despite its probative value is normally excluded at trial.[20] 

“The ‘fruit of the poisonous tree’ doctrine, first espoused in Silverthorne Lumber Co. v. U.S. (1920), prevents the prosecution from introducing illegally obtained evidence (Kaylor, 2014, p. 3). As the metaphor suggests, if the evidential ‘tree’ is tainted, so is its ‘fruit’ (Maguire, 1964, p. 308). In Silverthorne Lumber Co. v. U.S. (1920), police admitted to illegally seizing company documents and attempting to use the knowledge gained from those papers to frame a new case against the company. Oliver Wendell Homes Jr delivered the ruling in this case found that any evidence obtained even indirectly from an illegal search was inadmissible.”[21] 

As an extension of the exclusionary rule this was later known as the ‘fruits of the poisonous tree’ doctrine.  This form of exclusionary rule supports a strict form of deterrence of police misconduct.[22]  In comparison, the Canadian jurisprudence of the exclusionary rule lacks this rigidity of the American model.  In Canada, the grant analysis three factors are distinguishable among themselves as separate principles.  For example, unlike the second and the third factor of the grant analysis, the first factor begs the court to consider the conduct of the police.  The court has stated that the purpose of the first factor is not to represent a deterrence of police conduct but to distance the court from it, not punish police or in other words, act to deter unlawful conduct.[23]  

The framework for an analysis under section 24(2) of the Charter would need to be reformulated to support a more American approach to exclusion.  The evolution in Canada of the exclusionary jurisprudence has been described as a blending of two schools of thought.  According to Patrick McGinty, its development can be best described as supporting two “main exclusionary rationales-avoiding judicial condonation of police misconduct and compensating victims of overreaching.”[24]  In contrast, the American model supports a deterrence of state actors from unconstitutional actions as a justification for exclusion.  Along these similar lines Steven Penny in his article Taking Deterrence Seriously: Excluding Unconstitutionally Obtained Evidence Under Section 24(2) of the Charter, advocates for a change to Canadian exclusionary rule jurisprudence.  According to Steven Penny, “I argue that the only worthwhile reason to exclude evidence under section 24(2) is to deter constitutional violations. Taking deterrence seriously allows us to penetrate the ambiguity and confusion surrounding section 24(2) and pursue an optimal accommodation between the competing interests implicated by the provision: encouraging constitutional compliance and convicting the factually guilty.”[25]  He supports a right’s orientated theory to deter violations of constitutionally protected rights by state actors, by correctly stating that currently there is too much ambiguity surrounding the current analysis under section 24(2).  Penny’s model supports what he calls the “objective is not ‘maximum’ deterrence (awarding remedies to deter as much misconduct as possible), but rather ‘optimal’ deterrence (awarding remedies only when the benefit of increased deterrence outweighs the cost of lost convictions).”[26] This argument suggests that the courts create a new frame work under section 24(2) that supports deterrence as the only reason to exclude illegally obtained evidence at trial.  Curiously, he finds that plain language of section 24(2) may not support a deterrence model, that this was not the original intension of its drafters, but it is unclear why.  

The courts are in the best position to deter police misconduct by precluding improperly obtained evidence at trial under section 24(2).  It has been argued that it is only proper to consider bad faith conduct by the police at the extreme level.  According to Patrick McGuinty, in his article, Section 24(2) of the Charter; Exploring the Role of Police Conduct in the Grant Analysis, “when considering whether to exclude evidence under s. 24(2), judges consistently, pre-grant, have applied the “shock the community” test. Put simply, courts would consider whether the admission of the impugned evidence would shock the ordinary man.  Naturally, this assessment required courts to consider the conduct of the police officers.  The police conduct inquiry has thus always played a vital role in the application of s. 24(2).”[27] Patrick McGinty argues that this ‘shock the community test be re-applied today in support of the exclusion of that evidence.  He puts forth the argument that the courts, in practice ought to be applying this test to first part of the grant analysis where the first factor is the most determinative factor in the overall analysis.[28]  But even if this idea of differential weighting is accepted, it assumes that the courts are good indicators of what would ‘shock the community’.   He is correct in so far that how society views the administration of justice depends on many social factors.  Allowing illegally obtained evidence at trial may not only affect how the public views the administration of justice but how secure the public feels that they are free from state intrusion into their constitutionally protected rights.  Like the American jurisprudence, if the courts were more attentive to deterring police misconduct it would force the police to become more familiar with the law in their policing having a more positive societal impact.

A deterrence model representative of section 24(2) would support ‘good faith acting’ on part of the police.  The deterrence model suggested would not be so strict as to not give allowances for honest police mistakes and considerations for effective policing policies.  For example, their must exist a reasonable inference given certain circumstances before police can detain and search someone.  In the case of  R v Zacharias (2023), a police officer stopped Mr. Zacharias for a traffic violation and later “thinking that drugs were likely being transported, placed Mr. Zacharias under investigative detainment beginning a warrantless search of his person and after a sniffer dog was called his vehicle was searched.”[29] Ultimately a large amount of drugs was found and Mr. Zacharias was criminally charged and convicted.  As expressed by the majority of the court in R v Zacharias (2023), affirming R v Fearon (1998), the police must think fast and secure evidence.[30] In this case it may have been an honest mistake made by the police officer thinking fast that he was lawfully allowed to search the accused and his vehicle without breaching their Charter rights.[31] The lower courts all agreed, as did most of the Supreme Court, that ‘this was a wrong decision made by the police officer and that obtaining warrant prior to the dog sniffer would have been the correct course of action.'[32] Ultimately the court concluded that the evidence should have been admitted and affirming the guilty verdict of the accused[33].  The lower courts all affirmed that the evidence ought to have been admitted all but for one judge, Khullar JA, at the Alberta court of appeal in (2022).[34]  Considerations of good faith can still be a determination made by the court within a deterrence framework under a new section 24(2) model incorporating a bright line rule.  Interestingly, the trial of first instance hearing the factual evidence and the Supreme Court both found that the police officer did not have the requisite reasonable suspicion to detain Mr. Zacharias and search his vehicle and still found that the evidence ought to have been admitted.[35]  Basic Charter norms and common law rules of procedure lack value or meaning if they are to be weighted in this manner loosing there originalist meaning.  The courts should view, as the American model, any determination of admitting evidence under good faith policing with the strictest of scrutiny.  The courts ‘ought’ to place a high degree of scrutiny on claims of honest mistakes by state actors in breach of individual Charter rights.  

Another problem with the current section 24(2) jurisprudence is that it supports police misconduct.  In R v Zacharias (2023), the Charter challenge was based on the actions consequential of the initial detainment and the subsequent warrantless searches made by police.[36]  At the trial of first instance, ‘the Judge included the evidence under section 24(2) of the Charter although believing that the police officer did not have the requisite reasonable and probable grounds to start a sniffer search.”[37] That initial suspicion of the police officer was found to be primarily based on information regarding Zacharias’s possible involvement in drug trafficking obtained by the police officer after completing a data base name search.[38]  The trial Judge found that this was mere unfounded suspicion, the data base search revealed that the source of 'Zacharias involvement was unsubstantiated.[39]  Based on these finding of fact, the admittance of the evidence at trial can be thought of as incorrect for two reasons.  First, the police can easily find ways to circumvent justice by coming up with colourful ways, such as a false traffic stop, to facilitate improper searches of vehicles.[40]  Secondly, if the police officer found nothing illegal in the search, then potentially what has happened is that an innocent person was subject to unwanted state intrusion.  Utilizing R v Zacharias (2023), by going through the grant analysis from last to first, it is easy to show how arbitrary these factors are and as such does not promote the protection of individual Charter rights adequately.  It is only through a deterrence model that would replace the grant test, could the courts better enforce Charter rights as the drafters seemingly intended.  The third part of the grant analysis would easily be interpreted to support inclusion of the evidence in R v Zacharias (2023).  Society always has an interest in prosecuting crimes, so it potentially becomes forward thinking, on part of the court that evidence supporting guilt ought to be admitted.  The second part of the grant analysis could easily support inclusion as well.  It can be easily said that the initial detainment of Zacharias was not that intrusive after the fact and that the police were acting in good faith.  Both factors do nothing to ensure society’s confidence that their individual rights are being protected.  As it was stated in R v Le (2019), the Charter had a purpose to protect people from unwanted intrusions.  Further, according to the court in R v Le (2019), this was expressly stated that the “prohibition of arbitrary detention in s. 9  of the Charter is meant to protect individual liberty against unjustified state interference.”[41]  From a rights perspective, the courts should deter state actors from Charter infringement of individual rights.  The first part of the grant analysis allows the court to scrutinize state conduct but to the extent that the court has decided to only distance themselves from recognized bad conduct on part of the police.[42]  The originalist reading of section 24(2) would support a deterrence model. but by the courts own construct of distancing prevents this.  Specifically constructed in this manner to avoid a deterrence model the current analysis needs to be reformed in its entirety if a deterrence model is to be adopted.

Lastly, this current construct of what constitutes ‘disrepute of the administration of justice’ is ambiguous.  Opposing the majority ruling, the dissent in R v Zacharias (2023), found that to allow the admittance of the evidence would bring the administration of justice into disrepute.[43]  According to the two dissenting justices,  

“the conclusion that Mr. Zacharias’s Charter rights were breached cannot in itself compel exclusion but neither can the existence of real, reliable and crucial evidence compel inclusion. Rather, as section 24(2) of the Charter itself makes plain, “all the circumstances” are relevant and must be considered at each stage of the grant analysis. Taking into account the seriousness of all of the state conduct that violated s. 8 and s. 9 of the Charter, the impact of that conduct on the accused and society’s interest in proceeding to trial on the merits, we conclude that the administration of justice would be brought into disrepute by admitting the evidence.  For that reason, it must be excluded.”[44] 

These articulations, by the dissent of what represents societies view of the administration of justice would indicate an entirely different meaning to the dissent.  This ambiguity would further indicate that the framework under the grant analysis itself is not a clear indicator of a societal view of the administration of justice.  The problems with the current jurisprudence surrounding section 24(2) all stem from the courts attempt to artificially construct an indicator of what constitutes repute of the administration of justice.  Ultimately, the courts are not the correct forum to decide what society’s view of the administration of justice is or should be, this is a political question.  

Conclusion:

The current Canadian exclusionary rule jurisprudence needs to be reshaped to support a more deterrence modeled approach.  The judiciary is not the proper branch of government to dictate or judge society’s views of the administration of justice.  Problematically, under the current jurisprudence under section 24(2) of the Charter, it supports both the furtherance of police misconduct and the abuse of individual Charter rights.  The proper role of the judiciary is to strictly scrutinize claims of good faith policing while deterring bad faith policing.  This supports the plain wording of the Charter under section 24(2).  New systematic framework is needed because the current section 24(2) analysis cannot be reshaped or reformed from its existing principles to achieve a deterrence model.  A more similar model akin to the American jurisprudence is needed that is unambiguous and free from the incumbrancers of grand theorizations.   

[1] The terms State actors and police will be used interchangeably in the is paper. 

[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c11 s 24

[3] Before R v Grant in 2009 was the test under R v Collins and in R. v. Stillman, [1997] 1 S.C.R. 60

[4] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353

[5] Ibid., para 5

[6] R c Côté, 2011 SCC 46 at para 48, [2011] 3 SCR 215.

[7] See R v Grant 2009 para 60 “the question is what considerations enter into making these determinations”.

[8] R v Grant 2009 SCC

[9] Gosselin v. Quebec 2002 SCC: “‘Charter’ values are an important concept that may help to inform a Charter right, but they cannot be invoked to modify the wording of the Charter itself.” [2002] S.C.J. No. 85, [2002] 4 S.C.R. 429, at para. 203 (S.C.C.), per Bastarache J. More to the point these values have never been fully identified by the Supreme Court which makes this very ambiguous.

[10] Section 9 of the Charter refers to the right to not be arbitrarily detained and section 10 guarantees rights upon detention or arrest such as to be instructed by council without delay

[11] Contrary to sections 9 unlawful detainment and section 10 his right to council pursuant to the Charter.

[12] R v Grant 2009 SCC

[13] ibid

[14] Ibid

[15] Steven Penney Faculty of Law, University of Alberta Moin Yahya Faculty of Law, University of Alberta, Section 24(2) in the Trial Courts: An Empirical Analysis of the Legal and Non-legal Determinants of Excluding Unconstitutionally Obtained Evidence in Canada Osgoode Hall law journal 12-2-2021 P 523

[16] R v Devison (1974), 21 CCC (2d) 225, 10 NSR (2d) 482

[17] Patrick McGuinty Section 24(2) of the Charter; Exploring the Role of Police Conduct in the Grant Analysis P 276

[18] This has been proven difficult in Canada as many lawyers will not even take up such a case. A study should be performed on this subject. The only true redress ought to come from the courts in criminal or quasi criminal trials for police misconduct.

[19] As opposed to just choosing to distance the court from police misconduct See r v Collins 1987.

[20] There may be changes to the American absolute exclusionary rule as per US v Herring, 129 S Ct 695 (2009)

[21] Karima Taha, A COMPREHENSIVE ANALYSIS OF SECTION 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS AND THE EVOLVING EVIDENTIARY RULE April 17, 2022, Mount Royal University P 11 

[22] This is not to say that the American model does not support arguments against exclusion based on good faith policing or otherwise.  Called the ‘good faith policing rule’ it is an exception to the exclusionary rule first established in United States v Leon 1984

[23] R v Grant 2009 para 72 the courts are only disassociating themselves from unlawful conduct of state actors. And para 73 the court is not to “punish the police”

[24] Patrick McGuinty Section 24(2) of the Charter; Exploring the Role of Police Conduct in the Grant Analysis P 109. The Canadian courts have stated that their objective under a section 24(2) analysis is not to deter police misconduct but to distance the court from it see R v Collins 1987 SCC.

[25] Steven Penny Taking Deterrence Seriously: Excluding Unconstitutionally Obtained Evidence Under Section 24(2) of the Charter McGill Law Journal Vol 49 2002 P 4

[26] Ibid., P 105

[27] Patrick McGuinty Section 24(2) of the Charter; Exploring the Role of Police Conduct in the Grant Analysis P 280

[28] Ibid., P 281

[29] R v Zacharias 2023 SCC

[30] R v Fearon 1998 SCC

[31] In R v Grant 2009, the court clear stated as it did in R v Collins 1987, that the court is not concerned in deterring police misconduct, only distancing the court from egregious misconduct. 

[32] R v Zacharias 2023 SCC

[33] Ibid.,

[34] R v Zacharias 2022 ABCA 112

[35] R v Zacharias 2019 trial of first instance by Justice G.D. Marriott

[36] The police were found to have breached Mr. Zacharias’s ss.8 and 9 Charter rights resulting from an unreasonable search and arbitrary detention.

[37] Ibid

[38] R v Zacharias 2022 ABCA

[39] Ibid

[40] Another law that facilitates this is the new HTA section 178 stunt driving laws. Now the police can potentially falsely accuse an individual of driving in a manner that is a stunt, impound the car and subsequently search it because the search of the vehicle once it is in the impound, for safety reasons. No need for a warrant.

[41] R v Le 2019 SCC

[42] R v Grant 2009 SCC the courts are clearly not deterring police conduct only to distance itself from it, which is a much easier way to provide for evidence to be admitted than deterrence.

[43] It was a 3-2 decision.

[44] R v Zacharias 2023 SCC