When police violate Charter rights, the consequences can be severe for the prosecution. Under section 24(2) of the Canadian Charter of Rights and Freedoms, courts have the power to exclude evidence obtained through unconstitutional conduct. In many cases, excluding key evidence is how an experienced criminal defence lawyer causes the Crown’s case to unravel.
This remedy exists to protect the integrity of the justice system, not to reward wrongdoing. Where police misconduct is serious, admitting the evidence may undermine public confidence in the rule of law. The best criminal defence lawyer understands when and how to invoke section 24(2) to hold police accountable.
This article explains exclude evidence Charter principles, the Grant test, and how courts decide whether police misconduct should cost the Crown its case.
What section 24(2) of the Charter does
Section 24(2) provides that evidence obtained in a manner that infringes or denies Charter rights shall be excluded if admitting it would bring the administration of justice into disrepute.
This is a remedial provision. It applies after a Charter breach has already been established, often under sections 8, 9, or 10(b). The focus is not guilt or innocence, but whether the justice system should benefit from unconstitutional conduct.
The Grant test explained
In R. v. Grant, the Supreme Court of Canada established a three-part framework to guide courts in deciding whether evidence should be excluded. Judges must balance the following factors:
- The seriousness of the Charter-infringing conduct
- The impact of the breach on the accused’s Charter-protected interests
- Society’s interest in adjudicating the case on its merits
No single factor is determinative. Courts must weigh all three to determine whether admission of the evidence would bring the administration of justice into disrepute.
Seriousness of the police misconduct
The first Grant factor examines how blameworthy the police conduct was. Courts distinguish between good-faith mistakes and deliberate or reckless disregard for Charter rights.
Examples of serious misconduct include:
– Knowingly conducting warrantless searches
– Ignoring right-to-counsel obligations
– Misleading a justice to obtain a warrant
– Engaging in pattern or systemic Charter violations
Where police act in bad faith or with indifference to constitutional rights, courts are more likely to exclude evidence. A top criminal lawyer in Vancouver will often focus heavily on this factor.
Impact on Charter-protected interests
The second Grant factor looks at how deeply the breach affected the accused’s privacy, liberty, or dignity. More intrusive breaches weigh strongly in favour of exclusion.
High-impact breaches include:
– Home searches
– Strip searches
– Seizure of personal digital devices
– Prolonged or coercive detention
The greater the intrusion into protected interests, the stronger the case for exclusion. This is why section 24(2) arguments frequently arise alongside illegal search and seizure claims.
Society’s interest in adjudicating the case on its merits
The third Grant factor considers the truth-seeking function of the trial. Courts examine the reliability and importance of the evidence to the Crown’s case.
However, this factor does not override serious Charter breaches. Canadian courts have made clear that convictions cannot come at any cost. When police misconduct is significant, society’s long-term interest lies in maintaining constitutional standards.
An experienced Charter lawyer will ensure this factor is properly balanced rather than treated as determinative.
When evidence is excluded
Evidence most commonly excluded under section 24(2) includes:
– Drugs or weapons seized during unlawful searches
– Statements obtained in violation of section 10(b)
– Digital evidence obtained without proper authorization
In many cases, exclusion of this evidence leaves the Crown without a viable case, resulting in withdrawals or acquittals. This is why police misconduct criminal case arguments are among the most powerful defence tools available.
Why section 24(2) arguments require experience
Section 24(2) litigation is highly fact-specific and requires careful framing of both the police conduct and its broader implications. Courts expect precise, principled argument—not generalized complaints about fairness.
The best criminal defence lawyer understands how to build a coherent Charter narrative, supported by evidence and jurisprudence, that demonstrates why admitting the evidence would undermine public confidence in the justice system.
Holding the state accountable
Section 24(2) exists to ensure that constitutional rights are meaningful. When police disregard those rights, courts must respond decisively.
Excluding evidence is not about letting people “get away with it.” It is about ensuring that the justice system does not endorse unconstitutional conduct. That accountability is essential to the rule of law.
Contact Vayeghan Litigation today for a confidential consultation and take the first step toward protecting your future.
Call us at 778-653-3995 or email law@mvlitigation.com now to discuss your case.
