Thread by @Nader_Hasan_law

One of the more troubling aspects of the #SCC majority’s decision in R v Beaver is its departure from decades-old precedent on s. 24(2) of the Charter without acknowledging it. 1/

Police in Beaver had committed serious Charter violations. But the investigating officer told the accused during his interrogation, “let’s start over”, and proceeded to give him his Charter cautions. 2/

The majority said that this was a “fresh start”, which severed the connection between the original Charter breaches and the confession, and therefore this evidence was not “obtained in a manner” that breached Charter rights.

This is a departure from precedent. 3/

Section 24(2) is a Canadian compromise. We don’t have an automatic exclusionary rule where police violate Charter rights. 4/

But judges exclude evidence obtained in violation of Charter rights approximately 70% of the time under 24(2) because they found that admission of the impugned evidence would “bring the administration of justice into disrepute.” 5/

24(2) has two components. The court must conclude that (1) the evidence was “obtained in a manner” that violated Charter rights; (2) admission of that evidence would “bring the administration of justice into disrepute”. 6/

Most s 24(2) decisions turn on the 2d prong. Under that prong, courts apply the Grant test, which asks courts to consider (1) the seriousness of the Charter violation; (2) the impact of the Charter breaches on the accused; and (3) society’s interest in adjudication on the merits.

But this case turned on the threshold “obtained in a manner” test. This is meant to be a generous threshold test. 8/

Both the English and French versions of 24(2) eschew strict causal language. 24(2) speaks of evidence “obtained in a manner” that infringes Charter rights (“obtenus dans des conditions qui portent atteinte aux droits ou libertés”). 9/

For decades, the SCC has emphasized this generous language. It emphasized that the connection between Charter breach and evidence need not be strictly causal or temporary. It can be “temporal, contextual, causal or a combination of the three.” (R v Wittwer, 2008 SCC 33, para 19)

The majority in Beaver held that there was an insufficient temporal, contextual or causal connection between the Charter violation and the confession because the police embarked on a “fresh start” after the Charter violations. 11/

Previously, the notion of a “fresh start” arguably existed in theory, but because of the generous approach to the “obtained in a manner” threshold test, “fresh start” arguments rarely succeeded. 12/

That’s not to say that a tenuous temporal or casual connection can’t be considered at s 24(2) balancing stage under Grant. Indeed, a weak temporal or causal connection may in fact weigh against admission… 13/

…but that’s something that can be addressed under the Grant “bringing administration of justice into disrepute” analysis. 14/

This is the logic of s. 24(2). Because we don’t have an automatic exclusionary rule, even if evidence was obtained in a manner that breached Charter rights, it doesn’t automatically get excluded. 15/

So all of the factors that Jamal J takes into account at the “obtained in a manner” stage could have been considered in the Grant balancing when considering (1) seriousness of the breach and (2) impact on the accused’s rights. 16/

By creating this new “fresh start” analysis, I worry that this will shift the focus away from what s 24(2) is supposed to be all about — the long term repute of the administration of justice — and it will also provide the wrong incentives to police… 17/

A little arbitrary detention for a few hours? No problem. We’ll fix that at the station. This guy was denied right to counsel for 5 hours in the back of a police cruiser? No big deal – we’ll give him counsel of his choice later on. 18/

Who cares about training all police officers to be aware of our constitutional rights? We can send out the head-busting squad to go out and arrest people, and if the investigation gets serious later on, we can always bring in the elite Charter-knowledgeable guys to fix it. 19/

This thread is no substitute for reading Martin J’s powerful dissent. Her reasons are both analytically crisp and show a keen awareness of how criminal justice happens on the ground… 20/