Under s. 24(2), judges analyze whether the inclusion of evidence obtained unconstitutionally will bring the administration of justice into disrepute. Following the process set out in R. v. Grant, they examine the seriousness of the Charter-infringing state conduct, its impact on the accused’s Charter-protected interests, and society’s interest in adjudicating the case on its merits.
George said the trial judge made two reversible errors in the assessment under the first two Grant factors. In an analysis of the seriousness of the Charter infringing conduct, the trial judge highlighted that the arrest was a “high-adrenaline” and “high-risk” situation, which contributed to the officer’s failure to facilitate Whittaker’s exercise of his right to retain and instruct counsel. The officer also said it was confusing when Whittaker had said something about sureties after being asked if he wished to speak to a lawyer at the police station. But George noted that Whittaker had already said he wanted a lawyer when asked at the arrest scene. Neither of these rationales persuaded the Court of Appeal, and this reasoning mischaracterized the breach as an honest mistake or an oversight.
George found the trial judge “improperly downplayed” the seriousness of the breach and erred by speculating why the police did not facilitate contact with counsel. The judge also erred by “treating the absence of a systemic problem” as a mitigating factor and “effectively equating inadvertence with good faith.” While not deliberate or part of a broader systemic problem, the police’s failure was “serious and inexcusable,” said George.
The trial judge also found that the second Grant factor – the impact on the Charter-protected rights – favoured exclusion of the evidence because the violation did not lead to Whittaker incriminating himself. George said the judge erred in focusing on the lack of incrimination while ignoring other relevant factors. Whittaker was deprived of the benefit of counsel’s advice on the procedure to which he was subject and what he could do to obtain release.
“The appellant’s access to counsel was not merely delayed – it was, whatever the reason, completely denied. It is difficult to imagine when, if ever, the complete denial of a Charter-protected right for such a prolonged period would lead to a finding that the second Grant factor favours admission,” said George.