Getting Evidence Thrown Out: Section 24(2) of the Charter

In a criminal case, the Crown’s ability to prove the charge depends on evidence. The drugs found in your car. The statement you gave at the police station. The breathalyzer reading. The firearm recovered from your home. Without that evidence, the Crown cannot meet its burden of proof — and the charge cannot stand.

Section 24(2) of the Canadian Charter of Rights and Freedoms is the mechanism by which evidence obtained through a Charter breach can be excluded from trial. It reads:

Where, in proceedings under subsection (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 the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

This provision is one of the most powerful tools in criminal defence. A successful Section 24(2) application does not merely create a legal argument — it removes the very evidence the Crown needs to prove its case. In many drug, firearms, and impaired driving prosecutions, a successful Charter application results in an acquittal or a complete withdrawal of charges because the Crown is left with no admissible evidence.

This article explains how Section 24(2) works, the framework courts use to decide whether to exclude evidence, and the practical impact of Charter applications on criminal cases.

The Threshold: Evidence “Obtained in a Manner” That Infringed the Charter

Before the court reaches the exclusion analysis, the defence must establish two things:

1. A Charter right was infringed. This could be a violation of Section 8 (unreasonable search and seizure), Section 9 (arbitrary detention), Section 10(b) (right to counsel), or any other Charter right.
2. The evidence was obtained “in a manner” connected to that infringement. This is a relatively low threshold. The evidence does not need to have been obtained because of the breach — it must simply have been obtained in circumstances where the breach and the discovery of the evidence are part of the same transaction or course of events. A temporal and contextual connection is sufficient.

For example, if the police arbitrarily detained you (a Section 9 breach) and then searched you and found drugs (potentially a Section 8 breach as well), the drugs were clearly obtained in a manner connected to the Charter violations. Even if the police would have eventually found the drugs through lawful means, the connection between the breach and the discovery of evidence is established.

The R v Grant Framework

The landmark Supreme Court of Canada decision in R v Grant (2009) established the three-part framework that courts use to determine whether evidence should be excluded under Section 24(2). The court balances three “lines of inquiry”:

Line 1: The Seriousness of the Charter-Infringing Conduct

The first question is: how serious was the police misconduct? This inquiry is not about punishing the police — it is about maintaining public confidence in the justice system. The more serious the state’s disregard for Charter rights, the more likely it is that admitting the evidence would bring the administration of justice into disrepute.

Factors that make the breach more serious include:

• Deliberate or flagrant disregard for Charter rights. An officer who knowingly searches without grounds, or who deliberately delays a person’s access to counsel, has engaged in conduct that the court treats as very serious.
• Systemic or institutional patterns of disregard. If the breach reflects a broader pattern of unconstitutional policing — for example, racial profiling or routine warrantless searches in a particular unit — the seriousness is heightened.
• Bad faith. An officer who misrepresents facts in a warrant application or fabricates grounds for a search has acted in bad faith, which weighs heavily in favour of exclusion.

Conversely, factors that reduce the seriousness include:

• Good faith. If the police acted on a reasonable (but ultimately incorrect) understanding of the law, the breach is less serious. A genuine mistake in a rapidly evolving situation may attract more sympathy than a calculated decision to cut corners.
• Technical or minor breaches. A small procedural irregularity, such as a slight delay in providing the right-to-counsel caution, may be treated as less serious — though it still matters.

This first factor generally favours exclusion when the police conduct was deliberate, negligent, or part of a pattern. It favours admission when the breach was made in good faith and was not egregious.

Line 2: The Impact on the Accused’s Charter-Protected Interests

The second question is: how significantly did the breach affect the accused? This inquiry looks at the nature and extent of the intrusion on the person’s rights.

The impact is greater when:

• The breach intrudes on a significant privacy interest. A warrantless search of a home or a comprehensive forensic extraction of a cell phone is a profound intrusion on privacy. A brief, unauthorized pat-down is less intrusive — though still constitutionally significant.
• The breach affects the accused’s bodily integrity. Strip searches, bodily samples, and forced breath tests engage deeply personal interests.
• The breach undermines the right against self-incrimination. If the police obtained a statement from the accused without providing the right to counsel, or if they continued questioning after the accused invoked the right to silence, the impact on the accused’s Charter-protected interests is severe. Statements are a form of self-incriminating evidence — the accused was effectively conscripted against themselves.
• The breach results in the discovery of evidence the police would not otherwise have found. If the only reason the evidence exists in the Crown’s possession is the Charter violation, the impact is high.

This factor generally favours exclusion when the breach deeply intruded on the accused’s privacy, bodily integrity, or right against self-incrimination. It favours admission when the impact was fleeting or minimal.

Line 3: Society’s Interest in Adjudication on the Merits

The third question is: would excluding the evidence undermine society’s interest in having criminal cases decided on their merits? This factor pulls in the opposite direction from the first two — it considers whether the evidence is reliable and important, and whether its exclusion would effectively gut the prosecution.

Factors that weigh against exclusion include:

• The evidence is highly reliable. Physical evidence — drugs, firearms, DNA — is inherently reliable. Its exclusion means the court is deprived of trustworthy evidence.
• The evidence is essential to the Crown’s case. If the excluded evidence is the only evidence linking the accused to the offence, its exclusion will likely result in an acquittal. This weighs against exclusion under the third factor — but it does not override the first two factors.
• The offence is serious. Society has a strong interest in seeing serious offences prosecuted. A murder case or a major drug trafficking case engages this interest more than a minor regulatory offence.

Factors that weigh in favour of exclusion include:

• The evidence is unreliable. A coerced or improperly obtained confession may be unreliable, and admitting it could lead to a wrongful conviction — which itself brings the administration of justice into disrepute.
• Excluding the evidence would not significantly impair the prosecution. If the Crown has other evidence to prove the charge, the exclusion of one piece of unconstitutionally obtained evidence may not gut the case.

Balancing the Three Factors

The three lines of inquiry are not a mathematical formula. The court must balance them in light of all the circumstances. The analysis is qualitative, not a tally. Courts have said that where the first two lines of inquiry together make a strong case for exclusion, the third will seldom tip the balance in favour of admitting the evidence. Where they make only a weak case, the reliability and importance of the evidence will usually carry the day.

In practice, the pattern tends to be:

• Serious police misconduct + significant impact on the accused = exclusion, even when the evidence is reliable and the offence is serious.
• Good-faith police error + minor impact on the accused + reliable evidence in a serious case = admission.
• Cases in the middle require careful balancing, and the outcome often depends on the specific facts.

Types of Evidence Commonly Excluded

Physical Evidence from Unlawful Searches

Drugs found during an unreasonable search — whether of a vehicle, a person, or a home — are frequently excluded under Section 24(2). The same applies to firearms discovered during warrantless searches or searches conducted under defective warrants. In firearms and drug cases, exclusion of the physical evidence typically results in an acquittal because the physical evidence is the case.

Statements Obtained Without Right to Counsel

If the police questioned you without first providing your right to counsel, or if they continued questioning after you asked to speak with a lawyer, any statement you made may be excluded. Statements are treated as particularly sensitive under the Grant framework because they are self-incriminating — the accused was conscripted into providing evidence against themselves. Courts are generally more willing to exclude statements than physical evidence.

Breathalyzer and Drug Recognition Results

In impaired driving cases, the breathalyzer reading or the results of a Drug Recognition Evaluation may be the Crown’s most important piece of evidence. If the breath demand was made following an arbitrary detention, or if the accused was denied the right to counsel before providing the sample, the results may be excluded. We discuss the specific rights that apply in impaired driving investigations in our article on your rights during a DUI stop in Barrie.

Derivative Evidence

Evidence that is discovered as a consequence of a Charter breach, often called “derivative evidence”, may also be excluded. (Canadian courts do not apply the American “fruit of the poisonous tree” rule; derivative evidence is assessed under the same framework as everything else.) For example, if the police obtain an unlawful confession in which the accused reveals the location of a weapon, both the confession and the weapon may be subject to exclusion. The connection between the breach and the derivative evidence is assessed under the same Grant framework.

Section 24(1) vs. Section 24(2): Different Remedies

It is important to distinguish between the two subsections of Section 24:

• Section 24(1) provides a broad remedial power. Anyone whose Charter rights have been infringed may apply for “such remedy as the court considers appropriate and just in the circumstances.” The most significant Section 24(1) remedy in criminal law is a stay of proceedings — an order that effectively ends the prosecution. Stays are reserved for the most serious cases of state misconduct, such as entrapment, abuse of process, or unreasonable delay under R v Jordan.
• Section 24(2) is specifically about the exclusion of evidence. It applies when evidence was obtained in a manner that infringed Charter rights, and the question is whether admitting that evidence would bring the administration of justice into disrepute.

In practice, defence lawyers often bring both Section 24(1) and Section 24(2) applications. A stay under Section 24(1) is a more drastic remedy and is harder to obtain. Exclusion of evidence under Section 24(2) is the more commonly sought and granted remedy.

The Practical Impact

A successful Section 24(2) application can transform a case. Typical examples include:

• Drug trafficking charges withdrawn after the drugs were excluded because the vehicle search was conducted without grounds
• Firearms charges dismissed after the gun was excluded because the search warrant was based on a fatally flawed ITO
• Impaired driving charges reduced or withdrawn after the breathalyzer results were excluded due to a denial of the right to counsel
• Assault charges stayed where the accused’s statement — the only evidence — was obtained in violation of the right to silence

In each of these cases, the evidence existed. The police found what they were looking for. But the way they found it violated the Charter, and the court concluded that admitting the evidence in those circumstances would bring the administration of justice into disrepute.

If you are facing criminal charges and believe the police may have violated your Charter rights during the investigation, it is critical to raise these issues early and to have a lawyer who understands how to bring effective Charter applications.

Contact a Criminal Defence Lawyer

Charter applications require a thorough understanding of the law and a detailed factual record. At Mor Fisher LLP, we review every case for potential Charter issues — from the initial detention through to the collection of evidence.

Call 705-721-6642 for a free consultation, or contact us online. We serve clients in Barrie, Toronto, Orillia, Collingwood, Newmarket, Brampton, and throughout Central Ontario.