A Comprehensive Analysis of Section 24(2) of the Canadian Charter of Rights and Freedoms and the Evolving Evidentiary Rule

The Supreme Court of Canada’s (SCC) evolving understanding of section 24(2) of the Canadian Charter of Rights and Freedoms has been informed largely by three landmark cases. In R. v. Collins (1987), R. v. Stillman (1997), and R. v. Grant (2009), the Court was required to consider the scope, applicability, and impact of the Charter. The Court’s most recent decision, R. v. Grant (2009), represented a major change to Canada’s constitutional exclusionary rule. A critical analysis of the Grant test will evaluate whether s. 24(2) provides a test that is rigorous enough to preserve the integrity of the administration of justice. This thesis will address criticism relating to the notion that the police conduct inquiry has become a determinative factor governing the admissibility of evidence. Under the first line of inquiry, the Court provides greater leeway for police conduct at the expense of individual rights and freedoms. This creates an imbalance between competing societal and state interests. A newly articulated s. 24(2) test that expands the scope of Charter-protected rights and constrains police powers will attempt to resolve this tension. This will be achieved by incorporating privacy interests into the s. 24(2) consideration and placing limitations on the concept of good faith. In doing so, this test will allow the Constitution to progressively adapt to changing societal needs, increasing knowledge, and technological advancements. These modifications will achieve a better balance between the rights-protection and truth-seeking functions of s. 24(2).