1

SECTION 24(2): THE PAST, PRESENT, AND
FUTURE OF EVIDENCE EXCLUSION

By
Megan Ham

Under the supervision of
Professor Doug King

An Honours Project submitted
in partial fulfillment
of the Degree requirements for the degree of
Bachelor of Arts – Criminal Justice (Honours)
Mount Royal University
Date Submitted: April 14, 2025

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Copyright 2025
Megan Ham
ALL RIGHTS RESERVED

This work is completed in its entirety by Megan Ham. All rights are reserved to the information
provided within this document.

MOUNT ROYAL UNIVERSITY
CALGARY, AB. CANADA

@ Megan Ham 2025
Calgary, Alberta, Canada

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MRU Territorial Land Acknowledgement
Mount Royal University is situated on an ancient and storied land steeped in ceremony and
history that, until recently, was occupied exclusively by people indigenous to this place. With
gratitude and reciprocity, Mount Royal acknowledges the relationships to the land and all beings,
and the songs, stories and teachings of the Siksika Nation, the Piikani Nation, the Kainai Nation,
the Îethka Stoney Nakoda Nation (consisting of the Chiniki, Bearspaw, and Goodstoney Nations),
the people of the Tsuut’ina Nation, and the Métis.

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Abstract
This study aimed to map the evolution of section 24(2) tests and their judicial criticisms. The
evolving understanding of the Canadian Charter’s s. 24(2) was developed through three
landmark cases: R. v. Collins (1987), R. v. Stillman (1997), and R. v. Grant (2009). The test
primarily remained a three-step test since the creation of the Collins test in 1987; however, the
focus of the three steps was expanded upon in R. v. Stillman (1997) to include both conscriptive
and non-conscriptive evidence and the introduction of two grounds upon which trial fairness can
be presumed non-infringed by Charter violations. This framework was almost entirely
overhauled and reformed in R. v. Grant (2009), but the three-stage formulation and the
consideration of the balance of probabilities remained. However, it most notably placed trial
fairness as the overarching systematic goal. Each case presented encompasses the case facts and
the resulting s. 24(2) test was concluded by an investigation into their respective judicial
criticisms. A discussion of the future of section 24(2) concludes the paper with a look at a newly
formulated test steaming from the subsequent jurisprudence.

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Acknowledgements
First and foremost, I would like to thank the kindest soul who has forever impacted my
life and who has instilled in me a profound love for the Charter and all it entails, Professor
Doug King. Not only have you continued to provide me with assistance in all my educational
adventures, but your classes and knowledge will also be with me forever in all my future
endeavours. Thank you for guiding me during this process, and continuing to support and
encourage me, even when I decided to switch topics last minute. Without your support and
knowledge, this thesis would not have come to fruition. Thank you for all you do, not just for me
but every student who walks into your classroom; you are truly a beacon of light who has
inspired countless students to pursue their dreams.
To my parents, Randy and Kim. Your support, encouragement, love, and guidance have
never failed to amaze me. You are the reason I am not afraid to chase my wildest ambitions, for I
know you will be my loudest cheerleader. Without you, none of this would have been possible,
and I couldn’t imagine navigating this world. There are no words to express the gratitude I hold
for all you have done for me. Every step I take, and every hurdle I overcome, I am reminded of
the strength and resilience you've instilled in me. You've poured yourselves into me, and for that,
I am eternally grateful. I see you in everything I am, and I love you both more than words can
say.
Amy, Holden, and Shelby: I cannot express how much you guys mean to me. Your
unwavering love, infectious laughs, and endless hugs have given me the strength to overcome the
hardest days. Thank you for reminding me to have fun amongst all the stress, and listening to my
never-ending rambles about school. I am immensely lucky to have the three of you in my corner,

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you guys are my inspiration and voice of sanity in the chaos. I am forever grateful for you, and I
love you guys, forever and always.

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Table of Contents
Section 24(2): The Past, Present, and Future of Evidence Exclusion........................................... 8
Outlining Section 24(2) of the Charter of Rights and Freedoms...................................... 8
Research Question.......................................................................................................................... 9
Research Design............................................................................................................................. 9
Data Collection Methods and Sources ......................................................................................... 10
R. v. Collins, 1987......................................................................................................................... 12
Case Facts......................................................................................................................... 12
The Collins Test................................................................................................................ 13
Factors that Render a Trial Unfair....................................................................... 13
The Seriousness of the Charter Breach ................................................................ 14
Placing the Administration of Justice in Repute .................................................. 14
Judicial Criticism and Debates of the Collins Test .......................................................... 15
R. v. Stillman, 1997....................................................................................................................... 17
Case Facts......................................................................................................................... 17
The Stillman Test ............................................................................................................. 19
Factors that Render a Trial Unfair - Stillman Revisions...................................... 19
Judicial Criticism and Debates of the Stillman Test......................................................... 20
R. v. Grant, 2009........................................................................................................................... 21
Case Facts ........................................................................................................................ 21
The Grant Test.................................................................................................................. 22
The Seriousness of the Charter-Infringing State Conduct.................................... 24
The Impact on the Charter-Protected Interests of the Accused............................ 24
Society’s Interests in an Adjudication on the Merits............................................ 25
Judicial Criticism and Debates of the Grant Test............................................................. 26
A New Path Forward.................................................................................................................... 29
Evaluation of Trail Fairness.............................................................................................. 29
The Seriousness of the Charter Breach............................................................................ 31
Society’s Interest in an Adjudication on the Merits.......................................................... 31
Rejecting the “Fresh Start” Notion................................................................................... 32
Conclusion and Discussion........................................................................................................... 33
References..................................................................................................................................... 35

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Section 24(2): Section 24(2): The Past, Present, and Future of Evidence Exclusion
Throughout the Charter era, numerous tests created by the Supreme Court of Canada
(SCC) have set binding precedents for lower courts to follow in applying various sections;
section 24(2) is no exception. Laying the foundation for this inquest with a brief introduction into
section 24(2) of the Canadian Charter of Rights and Freedoms, this paper will explore the
evolution of section 24(2) tests. Beginning with R. v. Collins (1987), a brief introduction of the
case will be followed by the framework laid out by the SCC for the determination of evidence
admissibility, highlighting the three main phases of inquiry. Next, the focus will shift toward the
case of R. v. Stillman (1997), providing relevant case information and the subsequent amendment
implemented to the s. 24(2) test. Lastly, a comprehensive look into the most recent landmark
case, R. v. Grant (2009), will envelope the key case details and the new revised framework,
followed by a discussion of the arising criticisms, enabling a better understanding of the
frameworks' respective controversies and pitfalls.
Outlining Section 24(2) of the Charter of Rights and Freedoms
Section 24(2) of the Canadian Charter of Rights and Freedoms reads as follows:
24. (2) Where, in proceedings under section (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
circumstances, the admission of it in the proceedings would bring the administration of
justice into disrepute (Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11).
This provision highlights the importance of maintaining a good reputation in
administering justice and upholding individual protections against self-incrimination while

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balancing the individual’s rights and protections against law enforcement aims (Charterpedia,
2023). S. 24(2) concludes that all inculpatory evidence – evidence obtained by way of infringing
on an individual's rights or freedoms prescribed in the Charter – will be excluded from the
proceedings of a trial if it is established that the admission of such evidence would bring the
administration of justice into disrepute (Charterpedia, 2023). It is imperative, as stated in the
language of s. 24(2) that all relevant circumstances must be considered in order to assess the
admissibility of evidence (Naudé, 2021). The importance of s. 24(2) cannot be understated, for
an applicant's success in excluding inculpatory evidence is noted as “one of the most
determinative events in the outcome of a criminal trial” (Eberdt, 2011, p. 65).
Research Question
This research collects data on the evolution of tests concerning section 24(2) of the
Canadian Charter of Rights and Freedoms and analyzes judicial critiques regarding the tests’
effectiveness in application and overall judicial support and opposition to the varying tests.
Looking directly at the landmark cases R. v. Collins (1987), R. v. Stillman (1997), and R. v.
Grant (2009), this paper maps how the test evolved over time and uses supplementary cases with
references to the landmark cases to draw conclusions on overall judicial opinion. Through this
analysis, recommendations will be made to improve the current s.24(2) test, allowing for more
significant impact and reflection in the future. Recommendations will be made based on the
prevailing critiques and the test’s effectiveness in reaching the design goal; fair and equal justice.
Research Design
This research utilizes an integrative literature review research design, with the aim of
producing recommendations for change and amendments to improve the truth-seeking and
judicial functions of s.24(2) tests. An integrative literature review pulls together the current

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research and knowledge surrounding a topic and utilizes it to critically analyze, synthesize, and
build critiques for the creation of new perspectives (Snyder, 2019). This is most appropriate for
this study due to the inherent time restraints for conducting research, the ethical and logistical
considerations of involving participants, and the goals of producing recommendations. However,
this design also leads to potential conflicts and limitations within my research, for the lack of
phenomenological research looking at first-hand experiences could lead the research away from
the impacts on those who have navigated the system and towards the perspectives of those
intertwined within the system, judges. Looking at the three key cases, R. v. Collins (1987), R. v.
Stillman (1997), and R. v. Grant (2009), and secondary source literature, this study will allow for
a complete understanding of the history and current standing of s.24(2).
Data Collection Methods and Sources
This thesis collects data from the main landmark cases R. v. Collins (1987), R. v. Stillman
(1997), and R. v. Grant (2009), alongside secondary sources produced within the last fifteen
years. Narrowing the search to the last fifteen years (2010-2025) allows for an understanding of
the cases and implications surrounding section 24(2) without regard for outdated information.
The use of secondary data and Supreme Court of Canada (SCC) cases are most appropriate for
they allow for a thorough analysis within the time constraints of this paper and remove the
complex ethical obligations. Data identified as relevant through a preliminary reading (within the
scope of the last fifteen years) will be downloaded to a file and then organized regarding the
primary theme. The files will be saved locally on my computer hard drive, and the varying
search terms used will also be recorded. Raw data will be found utilizing the Mount Royal
University Library database, Google Scholar, and CanLII using a variation of the key search

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words, “s.24(2),” “Canada,” “exclusion of evidence,” “R. v. Grant,” “R. v. Stillman,” and “R. v.
Collins.”
The inclusion criteria for academic sources for preliminary reading are as follows;
1) The articles must be centred around the topic of section 24(2).
2) Articles are in English.
3) Articles are published between 2010-2025.
For inclusion in the judicial critiques section, the requirements are;
A. Cases look to the issues presented in the varying tests (Collins’ Test, Stillman’s Test, and
Grant’s Test)
B. Issues are raised by judges
C. Published after 1987 (as R. v. Collins originated in 1987).
For non-academic peer-reviewed articles, Google searches to provide relevant
background information based on grey literature will be utilized using the same search words.
However, a rigorous analysis of the author's credibility and potential conflicts of interest will be
conducted before inclusion. It is essential to include grey literature, for many lawyers and
academics provide useful insight into the cases and their representative tests. Case studies will be
sourced primarily from the Supreme Court of Canada's official website, focusing on landmark
cases that have shaped the legal perspectives of section 24(2). The cases selected will focus on
the issue of s.24(2) to enhance the understanding of how the tests are exercised through realworld examples. Moreover, these cases will further the objective of evaluating effectiveness
through analyzing judicial rulings and justifications.
Limitations to literature review research are always present, as the sources compile
various methodological designs and objectives, and the justices may have varying unknown

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objectives and motives to their opinions. Additionally, there is a potential for bias to form and
undermine this thesis due to the predominate reliability of peer-reviewed academic journals, but
as the University of Texas Libraries (2024) denotes, these biases can be mitigated by the
inclusion of various other sources, which is another benefit of including grey literature and case
studies in this thesis.
R. v. Collins, 1987
Case Facts
The appellant, Ms. Ruby Collins, was sitting at the Cedars Pub bar when she was
intercepted by two police officers from the Royal Canadian Mounted Police (R.C.M.P.) Drug
Squad, who had been surveilling her throughout the day and had arrested her husband, Richard
Collins, earlier in the afternoon due to possession of heroin (R. v. Collins, 1987). They
approached her on suspicion of possession, utilized the “throat-hold” to prevent her from
swallowing any evidence, pulled her off the chair onto the ground, and demanded she release the
object in her hand (R. v. Collins, 1987). Collins complied, dropping the object onto the ground
beside her, which was seized by the officers and turned out to be a green balloon filled with
heroin (R. v. Collins, 1987). Ruby Collins was charged with possession of heroin for the purpose
of trafficking, and before the case entered the court, a voir dire hearing was held on the grounds
that the evidence was obtained in violation of Ms. Collins s. 8 rights – to be free from
unreasonable search and seizure – and thus the evidence should be excluded under s. 24(2) (R. v.
Collins, 1987). The determination was made within the voir dire hearing that officers did not
have reasonable grounds to search the appellant under s. 10 of the Narcotics Control Act, but
concluded, based on the judgement of Rothman v. The Queen (1981), that Collins failed to
satisfy exclusion under s. 24(2), and thus, the evidence was admitted into trial, and she was

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found guilty (R. v. Collins, 1987). The case was then taken to the British Columbia Court of
Appeal, which unanimously dismissed the appeal, following similar logic to that of the trial
judge, which was supplemented by a review of American case law (R. v. Collins, 1987). Based
on this dismissal, Ruby Collins then appealed the case to the Supreme Court of Canada, which
granted the appeal in a five-to-one decision, concluding that the evidence was an infringement on
section eight and falls to exclusion under s. 24(2), and ordered a new trial (R. v. Collins, 1987).
The Collins Test
During the deliberations by the SCC of Collins’ appeal, two main legal questions were
raised: 1) was the search reasonable under s. 8 of the Charter, and 2) would the admission of the
evidence into trial bring the administration of justice into disrepute (R. v. Collins, 1987). In
deliberating these two questions, the justices formulated a framework for applying to inquiries
regarding section 24(2) of the Charter. The three factors that outline the framework include
factors that render a trial unfair, the seriousness of the constitutional breach by state actors, and
whether the exclusion/inclusion of evidence brings the administration of justice into repute (R. v.
Collins, 1987).
Factors that Render a Trial Unfair
The first step was introduced to determine whether the nature of the evidence rendered a
trial unfair. During this determination, justices must decide whether the evidence was real and
separate from the Charter infringement, or rather, it emerged from an accused (Jochelson &
Kramar, 2014). The majority highlighted that real evidence is not granted self-incrimination
protections and is not to be considered under s.24(2) for it pre-existed – and is irrespective of –
the Charter violation (Naudé, 2021; R. v. Collins, 1987). The justice furthered this notion by
stating, “[if] the real evidence existed irrespective of the violation of the Charter, [..] its use does

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not render the trial unfair,” however if the violation of the Charter occurs prior to the accused
conscripting against himself through testimonial evidence, “such evidence would render the trial
unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a
fair trial, the right against self‑incrimination” (R. v. Collins, 1987, at para. 37). If the courts
determined the nature of the evidence did not render the trial unfair, the evidence would progress
to step two for consideration of the seriousness of the violation.
The Seriousness of the Charter Breach
This stage of the test concerns the overall seriousness of the Charter breach by the state
on the accused Charter rights and freedoms. Simply put, the relative seriousness of the
constitutional violation must be viewed through the lens it was committed: was it “in good faith,
or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or
flagrant.” (R. v. Collins, 1987, at para. 38). Another relevant factor denoted by the courts is
whether any extenuating circumstances were present; was the violation a result of the states
perceived urgency and necessity to prevent evidence destruction from occurring (Naudé, 2021, p.
612). The court also highlighted that in cases where the evidence could have been obtained
legally through less infringing means, the blatant disregard for the Charter must be considered as
a factor supporting the exclusion of evidence (Naudé, 2021; R. v. Collins, 1987). Nonetheless,
the court argued that in cases where the police act in “good faith,” the exclusion of evidence is
not required based on subsequent misconduct, as the effect of s. 24(2) is not to discipline police
officers but to maintain the repute of the justice system, as seen in the following step (R. v.
Collins, 1987).
Placing the Administration of Justice in Repute

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The last factor the justices in Collins (1987) laid out in the framework is whether the
inclusion or exclusion of evidence gathered through unconstitutional means would put the
integrity and administration of the justice system in repute. This factor, as highlighted by Justice
Lamer, requires justices to view disputes through the lens of the social policy concerns that
underlie s. 24(2), considering the community's views (R. v. Collins, 1987). Furthermore, the
standard given to assess disrepute is the “reasonable person” standard, in which questions would
an ordinary and reasonable person, knowing the full circumstances and facts of the case,
determine the exclusion (or inclusion) of evidence acceptable and upholding of the
administration of justice (R. v. Collins, 1987). Lastly, the court must consider whether the
inclusion of evidence collected through unconstitutional means condones the illegal actions of
the state and whether or not to distance themselves from such behaviour to uphold the
administration and repute of the justice system (R. v. Collins, 1987).
Judicial Criticism and Debate of the Collins Test
Since integrating the Collins test for section 24(2) of the Charter, many justices have had
varying degrees of critiques regarding its effectiveness and applicability. Beginning with
critiques provided by Justice McIntyre in the dissent of R. v. Collins (1987), he presents that the
test could have negative implications for self-incriminating evidence and confessions, stating that
the relevancy of trial fairness could “generally lead to the exclusion of evidence” (at para. 53).
These remarks have been echoed by numerous other Justices fearful of the inaccurate application
of the weight of each branch in the consideration of exclusion. The Honourable Mr. Justice
Sherstobitoff, in writing the decision for R. v. Shepherd (2007), highlighted these concerns,
stating that the Collins test was not clear regarding the scope of self-incriminating evidence and
to which extent the weight of the three branches should be considered. He questions “whether a

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finding that trial fairness would be affected by [the] admission of the evidence was or should be
conclusive of the question of admissibility or whether, conversely, a court should go on to
consider and balance the other two factors” (R. v. Shepherd, 2007, at para. 75). Here, Justice
Sherstobitoff is pointing to the contradictory nature of the tests’ formulation within Collins
(1987) in which Justice Lamer first states that evidence that affects trial fairness will lean
towards bringing administration into disrepute and “subject to the consideration of the other
factors” (R. v. Collins, 1987, at para. 36), the evidence should generally be excluded. Then, two
paragraphs later, Justice Lamer writes that since self-incriminatory evidence will generally affect
the trial fairness, it should generally be excluded (here there remains no mention of the other two
factors for consideration) (R. v. Collins, 1987, at para. 37). Furthermore, highlighting the
confusion in the weight of the branches, in R. v. Grant (2009) Chief Justice McLachlin (as she
was known then) and Justice Charron noted that after finding reasons for exclusion under the
first branch, questions arose regarding what extent the following two branches were to be
examined and applied. These remarks followed Justice McLachlin's strong dissent in R. v.
Stillman (1997), in which she stated that failing to consider all branches “is the antithesis of the
balancing envisioned by the framers of s. 24(2). If one factor or set of factors determines
admissibility, there can be no balancing. Nor can there be consideration of ‘all the
circumstances’ as s. 24(2) requires” (R. v. Stillman, 1997, p. 732). However, in the descent of R.
v. Stillman (1997), Justice McIntyre wrote that the test set out in Collins mandated consideration
of all factors and circumstances specific to the case and did not permit the inquiry to stop after
examining the first branch. Evidently, there is a need for a more comprehensive test that ensures
the application of the test. 24(2) remained consistently applied and understood; if there is such
confusion among the highest court, such confusion would certainly permeate lower courts.

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Further criticisms arose over the formulation of the Collins test; Justice McIntyre
cautions that the test is overly formulated, while C.J. McLachlin highlights that the three
branches were a “matter of personal preference” (citing Justice Lamer in R. v. Collins, 1987, at
para. 36). However, these preferences were formalized as the official s. 24(2) test. Moreover,
Justice McIntyre cautions that adopting the theoretical concept of community views is
inadequate to address the exclusion of evidence (R. v. Collins, 1987). Instead, he suggests that
the adaptation of the reasonable man standard, which has been proven to serve well within the
administration of justice, would be a better fit as it develops general rules of social attitudes and
principles on a case-by-case basis and “will produce an acceptable standard for the application of
s. 24(2) of the Charter” (R. v. Collins, 1987, at para. 49).
R. v. Stillman, 1997
Case Facts
William Stillman, age seventeen, and Pamela Bischoff, age fourteen, were out with
friends in the evening hours of April 12, 1991, where they participated in drinking and taking
lysergic acid diethylamide (LSD) before they separated from the group (R. v. Stillman,1997). Mr.
Stillman arrived home approximately three hours after they separated from the group. He had a
cut above his eye, was cold, wet, covered in mud and grass, and was visibly shaken, reporting to
his parents that he was in a fight with a group of five Indigenous peoples (R. v. Stillman, 1997).
However, six days later, the body of Ms. Bischoff was found in the Oromocto River,
approximately three to five hundred meters from where the group was hanging out. Two
individuals witnessed Mr. Stillman this evening by the bridge, one witnessing him with Ms.
Bischoff on top of the bridge and the other encountering him alone on the road leading to the
bridge with wet and muddy pants from the knees down (R. v. Stillman, 1997). An autopsy

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revealed Ms. Bishoff’s manner of death resulted from multiple wounds to the head and found
semen and bite marks on the victim (R. v. Stillman, 1997).
On April 19, 1991, Mr. Stillman was arrested for her murder. When arriving at the police
station, he was met by his counsel, who advised him not to give any statements. He further
informed the officers that Mr. Stillman did not consent to provide any bodily samples (R. v.
Stillman, 1997). Without regard to this information, the Royal Canadian Mounted Police
(RCMP) took numerous bodily samples under the threat of force and twice attempted to obtain a
confession through an interview without the presence of his lawyers or parents (R. v. Stillman,
1997). Additionally, the police seized a tissue used by the accused for DNA sampling. However,
there was not enough evidence to secure a charge, so Mr. Stillman was released until several
months later when the DNA and odontology results came back. The RCMP subsequently
arrested Stillman again, taking new dental impressions, hair strands, saliva samples, and buccal
swabs, all without consent (R. v. Stillman, 1997).
At trial, a voir dire hearing was held to determine if the evidence collected should be
admissible. The trial judge determined that despite the dental impression, hair strands, saliva
samples, and buccal swabs being collected in violation of the accused Charter rights, the
evidence should be admitted based on the framework of R. v. Collins (R. v. Stillman, 1997).
Furthermore, the judge stated that the collected tissue did not violate Stillman's rights (R. v.
Stillman, 1997). Stillman was convicted of first-degree murder by a jury trial, which was a
decision upheld by the Court of Appeal of New Brunswick (R. v. Stillman, 1997). Stillman raised
the appeal to the Supreme Court of Canada, which upheld the appeal, ordering a new trial with
the exclusion of the hair samples, dental impressions, and buccal swabs and the inclusion of the
tissue evidence (R. v. Stillman, 1997).

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The Stillman Test
With issues arising from the Collins test, the SCC took this case as an opportunity to
improve upon the existing framework and implement greater clarity and breadth of the
application of the steps outlined in R. v. Collins (1987). The basic foundation remained the same:
three steps to evaluate the exclusion of evidence under s. 24(2) of the Charter, involving
consideration of the factors affecting the right to a fair trial, the seriousness of the violation, and
the repute of the administration of justice (R. v. Stillman, 1997). However, greater depth and
application were given to the factors that render a trial unfair in restating the Collins test.
Factors that Render a Trial Unfair – Stillman Revision
Similarly to the Collins test, the justices acknowledge that consideration of trial fairness
is of utmost importance (R. v. Stillman, 1997). The Stillman decision set precedent as the first
decision to conclude that the privilege against self-incrimination extends beyond testimonial
evidence and includes real evidence, such as saliva or blood samples (Naudé, 2021). The justices
asserted that the DNA evidence obtained by the officers is inherently unjust and erodes Mr.
Stillman’s presumption of innocence and his rights against self-incrimination. (R. v. Stillman,
1997; Naudé, 2021). The primary focus for the SCC majority in this step is determining nonconscriptive evidence (which is unlikely to hinder trial fairness) and conscriptive evidence (R. v.
Stillman, 1997). Conscriptive evidence is “self-incrimination evidence in the form of statements
or bodily substances conscripted from the accused in violation of the Charter and evidence
derived from unlawful conscripted statements” (Naudé, 2021, p. 610). The justices note that any
admission of conscriptive evidence will render an unfair trial. However, they provided two
grounds: if proven on a balance of probabilities, the evidence will not render the trial unfair due
to the discovery of evidence absent of Charter violations (R. v. Stillman, 1997).

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1) If the evidence would have been obtained by another independent source. Was it
possible, on the balance of probabilities, that law enforcement would have been able to
attain the evidence without the conscriptive means?
2) Was there an inevitability that the evidence would have been discovered?
If either of these two grounds is determined to be true, on the balance of probabilities, the
evidence is not assumed to hinder a fair trial under this first step and must progress to the
following two steps (Naudé, 2021; R. v. Stillman, 1997).
Judicial Criticism and Debates of the Stillman Test
Following the Stillman decision, numerous judicial criticisms arose regarding the
classification of evidence, the determination of disrepute, and the quasi-automatic exclusionary
rule emitting from conscriptive evidence under the Stillman test. Beginning with the
classification of evidence, Justice L'Heureux-Dubé denotes that the classification of conscriptive
evidence and non-conscriptive real evidence presented by the Stillman framework is an
“unfortunate development” (R. v. Stillman, 1997, at para 184), that, according to Chief Justice
McLachlin and Justice Charron, has led to the nature of evidence being key to the determination
of exclusion under s. 24(2), which is not consistent with the language or principles therein.
Furthermore, Justice L'Heureux-Dubé states that the approach under Collins is a more
appropriate test and the efforts put forth in Stillman have failed to clarify and alleviate the
confusion surrounding s. 24(2)’s application (R. v. Stillman, 1997, at para. 184). These remarks
are echoed by Justice McLachlin (as she then was) in her dissent in R. v. Stillman (1997), in
which she highlights the demanding task of justices to determine whether the evidence
admission/exclusion would bring the administration of justice into disrepute. This task has
become increasingly complex and has been addressed in the Supreme Court numerous times.

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Justice Lebel further comments that “it may be impossible to divorce the different stages of the
analysis” (R. v. Orbanski; R. v. Elias, 2005, at para. 99), leading to the balance of each branch
being inherently hindered upon the others, and the evaluation of trial fairness contaminated by
the seriousness of the infringement and its impact.
Lastly, criticisms grew around the quasi-automatic exclusionary rule emanating from
Stillman. As noted previously, section 24(2) of the Canadian Charter of Rights and Freedoms is
intended to protect individuals from unconstitutionally obtained evidence from entering trial
proceedings and upholds individual rights and freedoms (Chaprterpedia, 2024). However, under
Stillman, conscriptive evidence was determined to (almost always) negatively impact trial
fairness and, thus, “as a general rule, be found to render the trial unfair” (R. v. Stillman, 1997, at
para. 98). Justice Ducharme highlighted how this rule permeated lower courts in R. v.
Padavattan (2007), in which trial judges have excluded breath samples due to their classification
as conscripted evidence and on the basis of the quasi-automatic exclusionary rule; without
consideration of the two other branches laid out in Collins. Moreover, Justice Lebel cautioned
that despite the view that an automatic exclusionary rule would provide clarity and effective
management of section 24(2) applications, adopting such an approach would be detrimental to
justice and would not provide true to the fundamental purposes of s. 24(2) (R. v. Orbanski; R. v.
Elias, 2005).
R. v. Grant, 2009
Case Facts
This case commenced during a routine lunchtime patrol of an area situated around four
schools with a history of assaults, robberies, and drug offences occurring at the lunch hour,
involving two officers in plainclothes (Constables Worrell and Forde) and one officer in uniform

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(Constable Gomes) (R. v. Grant, 2009). During the patrol, officers Worrell and Forde drove past
Mr. Grant, a young black male, who held an “unusually intense” eye contact with the officers
while simultaneously fidgeting in his pockets (R. v. Grant, 2009, at para. 5). This seemed
suspicious based on the reason for their patrol, so the officers decided to get Constable Gnomes
to investigate Mr. Grant’s purpose on the block and his intentions; later in the conversation,
Constables Worrell and Forde (who remained in their unmarked car initially) joined for backup
(R. v. Grant, 2009). Mr. Grant was reportedly acting nervously, constantly readjusting his
pockets and avoiding eye contact by looking “all over the place,” which prompted further
questioning, in which Mr. Grant revealed he had a small bag of marijuana and a firearm on his
person (R. v. Grant, 2009, at para. 7).
At trial, Mr. Grant stated his Charter ss. 8, 9, and 10(b) rights were violated. However,
the judge ruled that no such infringements occurred and, as a result, included the firearm into
evidence, subsequently leading to his conviction on five firearm offences (R. v. Grant, 2009).
Mr. Grant appealed to the Ontario Court of Appeal, which dismissed the appeal despite finding a
violation of s. 9., on the basis that the admission of the gun into evidence did not render the trial
unfair under s. 24(2) according to his application of the Stillman-Collins frameworks (R. v.
Grant, 2009). Mr. Grant appealed this decision to the Supreme Court of Canada, which required
the SCC to revisit the test for evidence exclusion under s. 24(2), in which they ultimately
reformulated and enhanced the previous test into a new three-step test (R. v. Grant, 2009).
The Grant Test
The SCC ruled that a new test must be developed for the Stillman-Collins test, which
proved too complex in application and caused significant disparity and unsatisfactory results.
The new framework under the Grant test sets trial fairness as an “overarching systematic goal

23

[rather] than [..] a distinct stage of the s.24(2) analysis” (R. v. Grant, 2009, at para 65), as it was
determined that the trial fairness criteria underlined in the Collins test was often applied either
too liberally or conservatively resulting in greater misinterpretation by judicial bodies. The SCC
had two primary questions to consider in the case: Was the evidence (the seized gun) obtained
through a violation of Mr. Grant’s rights, and if so, should the evidence be admissible to court
under s.24(2) of the Charter (Naudé, 2021: R. v. Grant, 2009). They determined that the
evidence was obtained unconstitutionally; however, in their determination of admissibility, they
set out the new framework to apply. 24(2), which evoked a purposive analysis of the language of
provision (R. v. Grant, 2009). Additionally, the justices ventured to define detention,
specifically, psychological detention, to advance the judicial understanding of when an
individual becomes legally detained, for section 9 protects individual physical and mental liberty
from unjust state intrusion (R. v. Grant, 2009). In the introduction, they highlight that detention:
Refers to a suspension of the individual’s liberty interest by a significant physical or
psychological restraint. Psychological detention is established either where the individual
has a legal obligation to comply with the restrictive request or demand, or a reasonable
person would conclude by reason of the state conduct that he or she had no choice but to
comply. (R. v. Grant, 2009)
Within the purposive analysis, the justices focused on the phrase “to maintain the repute
of the administration of justice” as directing justices to look to the long-term and prospective
repute of the justice system when determining admissibility through an objective standard
(Naudé, 2021). The court created a new test to ensure the application of s. 24(2) was consistent
with the language within. The three main considerations for inquiry under the Grant test include
“the seriousness of the Charter-infringing state conduct [...], the impact of the breach on the

24

Charter-protected interests of the accused [...], and society’s interests in an adjudication on the
merits” (R. v. Grant, 2009, at para 71).
The Seriousness of the Charter-Infringing State Conduct
The first inquiry relevant to the application of s. 24(2) is whether the admission of
evidence gained through unconstitutional means would imply to the public that the courts
condone unlawful actions by failing to separate themselves from the illegal recourse (R. v. Grant,
2009; Naudé, 2021). In doing so, there is a requirement for the courts to look at the severity and
deliberateness of the conduct, and whether the law enforcement acted in good faith, the nature of
the violation (was it inadvertent and minor or wilful and reckless), and whether a pattern of
Charter right abuses have occurred by the enforcement officer or if it was an isolated incident
(Jochelson & Kramar, 2014; R. v. Grant, 2009). However, the court highlights that this inquiry
aims not to punish police for unconstitutional actions and “ignorance of the Charter must not be
rewarded or encouraged” (R. v. Grant, 2009, at para 75).
The requirements of the second branch in the Stillman-Collins test are observed here by
the courts, as there is an inherent requirement to evaluate the seriousness of the conduct that led
to the violation (Naudé, 2021). However, in the cases of extenuating circumstances, such as the
unconstitutional collection of evidence with the aim of destruction prevention, the seriousness of
the violation is to be adjusted and judged accordingly (Naudé, 2021; Jochelson & Kramar, 2014;
R. v. Grant, 2009).
The Impact on the Charter-Protected Interests of the Accused
This step requires the courts to look at the extent to which the interests protected by the
accused’s rights were violated, scaling from mere fleeting and technical impact to profoundly
intrusive impact (R. v. Grant, 2009; Naudé, 2021; Jochelson et al., 2015). The greater the impact,

25

the greater the risk to the administration of justice, for the public may assume the Charter rights
avail fewer protections against state interests (R. v. Grant, 2009). The SCC majority highlights
that it is imperative to look at the interests engaged by the right in order to determine the impact
the infringement had (R. v. Grant, 2009; Naudé, 2021).
Society’s Interests in an Adjudication on the Merits
The final stage of inquiry requires the courts to assess whether the inclusion or exclusion
of the evidence enhances the “truth-seeking” function of the criminal trial proceedings and to
address the evidence’s reliability (R. v. Grant, 2009; Naudé, 2021). The justices stated that if the
Charter infringement undermines the evidence’s reliability, the evidence should be excluded,
rendering the other relevant factors under the Grant test (R. v. Grant, 2009). Moreover, the
Supreme Court of Canada expressed that the wording of s.24(2) denotes that all circumstances
must be considered, not simply the reliability of evidence, for reliable evidence obtained through
illegal action is inconsistent with the accused’s Charter rights (Naudé, 2021).
The balance of truth-seeking and justice integrity is critical to considering evidence
exclusion, for the unconstitutionally obtained evidence may aid in the discovery of truth and the
adjudication of the case on its merits (R. v. Grant, 2009). Another essential consideration
denoted by the majority in R. v. Grant (2009) is the weight of the probative value and its
significance to the prosecution’s case, for “evidence of questionable reliability is more likely to
bring the administration of justice into disrepute where it forms the entirety of the case against
the accused” (R. v. Grant, 2009, at para 83).
Finally, it is essential to recognize that rulings based on s. 24(2) are not straightforward
and do not necessitate a unanimous “yes” or “no" from the justices. Rather, it prompts a strategic
balance, comparing the different aspects of exclusion and inclusion under the three inquiries to

26

assess which side carries more weight (R. v. Grant, 2009). Even if two of the three inquiries
weigh moderately to exclusion, the evidence may be admitted if the third weighs heavily to
inclusion (and inclusion does not bring the administration of justice into disrepute).
Judicial Criticism and Debates of the Grant Test
After the overhaul of the section 24(2) test presented in Grant, numerous judicial
discussions and criticisms have concerned whether the new tests provide an accurate account of
the intentions of the Charter and the language within. Beginning with the criticisms of Paciocco
et al. (2020) in their text, The Evidence of Law, they question the contradictory nature of the
Grant test and highlight how this increases the difficulty of administering the test. Section 24(2)
is found within the enforcement provisions of the Charter of Rights and Freedoms. Its
underlying purpose is to deter the police from unconstitutional actions by the increased emphasis
on the blameworthiness of the officer’s conduct (Paciocco et al., 2020). This section also enables
the courts to provide remedies for Charter violations, emphasizing causation while deemphasizing trial procedural impact (Paciocco et al., 2020). However, section 24(2)’s central
tenant is trial fairness and whether the admission or exclusion of evidence would render the trial
unfair, essential placing the focus not on the deterrence of police conduct but rather on the “way
evidence operates at trial” (Paciocco et al., 2020, p. 468). Lastly, the authors denote that by
triggering s. 24(2) the overarching goal of the Grant test is to determine whether the evidence
exclusion or inclusion would bring the administration of justice into disrepute, which empowers
judges to separate the court from unconstitutional state conduct and uphold the public confidence
within the justice system (Grant, 2009; Paciocco et al., 2020). Looking to the repute of justice
shifts the focus to the seriousness and significance of the Charter violation rather than the
blameworthiness of the police conduct (Paciocco et al., 2020). These remarks from Paciocco et

27

al. (2020) are further advanced by Justice Deschamps’ concurrence under Grant (2009), in which
he states, “the majority’s emphasis on state conduct [is] puzzling in view of the purpose of s.
24(2). Although the majority acknowledges that the purpose of the s. 24(2) rule is neither to
punish the police officers nor to compensate the accused; the importance they attach to this
factor places the judge on a slippery slope” (at para 210).
Despite the majority’s efforts to clarify and simplify the s. 24(2) test under Grant (2009),
criticism arose surrounding the various interpretations of the application for the Grant test,
including Justice Deschamps writing in concurrence in R. v. Harrison (2009). Justice Deschamps
stated his disagreement with the newly formulated s. 24(2) test under Grant due to the inherent
difficulty in balancing the competing values and upholding the reputation of justice, criticizing
that this is no easy task for any judge (R. v. Harrison, 2009). Misinterpretations of the balancing
required by Grant have been seen by the trial court’s inaccurate application of the test, evident in
the case of R. v. Reilly (2021), where the trial judge improperly conducted the overall balancing
by only considering the first two branches of the Grant test. The trial judge also failed to
consider all the relevant Charter breaches under the first branch of inquiry, leading to a faulted
conclusion as “trial judges cannot choose which relevant Charter‑infringing state conduct to
consider” (R. v. Reilly, 2021, at para 3). Moreover, in R. v. McGuffie (2016), the trial judge was
criticized for numerous failures in the application of the Grant test for s. 24(2), including “his
assessment of the seriousness of the charges, and nothing else, that led the trial judge to admit
the evidence, despite his finding of significant police misconduct” (at para 72). Chief Justice
McLachlin who wrote for the majority in Grant (2009), clarified in R. v. Harrison (2009) that by
allowing the seriousness of the offence to overwhelm the s. 24(2) analysis, individuals accused
of serious crimes would be stripped of their individual freedoms afforded to all Canadians, and

28

this would inadvertently create a system of justice in which the “ends justify the means” (R. v.
Harrison, 2009, at para 40). Moreover, in the dissent of R. v. Harrison (2009), Justice
Deschamps expressed his disagreement with the new test proposed by the majority for the case
of R. v. Harrison (2009), which provides an example of the inherent difficulties of balancing the
three branches and their contradictory nature. These remarks are also echoed by Woollcombe
(2010), who noted that although the Grant test is void of the “rigid rules that often operated to
produce incongruent results,” the flexibility within the Grant test “is not without fairly fulsome
guidelines relating to each of the three lines of inquiry. These guidelines will significantly
narrow the scope of judicial discretion and should assist judges in identifying each of the
relevant factors to consider in any par-ticular case” (p. 501). These examples show clear
evidence that the current test has not clarified the issue of accurately navigating a section 24(2)
application and the weight attached to each branch.
Lastly, Justice Doherty, writing for the majority in R. v. McGuffie (2016), highlighted
how the first two branches of the Grant test seemingly work in tandem, oftentimes tipping the
balance towards exclusion, especially in cases where there is serious state misconduct leading to
a more significant impact on Charter protected rights. Therefore, “if the first and second
inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance
in favour of admissibility” (R. v. McGuffie, 2016, at para 63; Mitchell, 2025, p. 46). These claims
are backed by the research conducted by McGuinty (2018) in which he studied one-hundred
s.24(2) cases and found that the Charter infringing state conduct “has arguably become the
determinative factor in the overall decision of whether to exclude evidence” (p. 295). However,
Chief Justice McLachlin and Justice Charron stated explicitly within Grant (2009) that the Grant
test is designed to create a “decision tree” that provides greater flexibility of discretion compared

29

to the Stillman test and that it is the job of the justices to weigh the various branches for there are
no overarching rules set to regulate how the balance is reached (at para 86).
A New Path Forward
It is clear that no one test will operate perfectly in all circumstances, for all justices, in all
jurisdictions. Due to the inherent complexities of s. 24(2) applications, the justices should be
equipped with a test that allows flexibility to grant discretionary powers but also allows for a
clear understanding of how to navigate s. 24(2) claims. This thesis proposes that the
Stillman/Collins test presented greater leniency for exclusion, which protected individual
Charter rights and freedoms to the highest degree while maintaining the reputation of justice.
Although major criticisms of Stillman/Collins arose from academics and justices surrounding the
quasi-automatic exclusionary rule (R. v. Panavattan, 2007), it is proposed that a combination of
the Stillman test and the Grant test would provide sufficient strides toward justice for future
cases. The revised test would have three branches:
1) Evaluation of trial fairness;
2) seriousness of the Charter-infringing conduct;
3) society’s interest in an adjudication on the merits.
The proposed test would maintain the repute of justice as an overarching theme, as seen in Grant
(2009), and maintain that each branch is weighed individually along a continuum from highly
favouring admissibility to highly favouring exclusion. No one factor can be determinative
without balancing the others, as the Charter prescribes.
Evaluation of Trial Fairness
Enhanced from the Stillman test, an evaluation of trial fairness would be the first step to
consider. However, this branch would stray from Stillman's focus on evidence classification and

30

reassign focus to a vulnerability assessment with a consideration of the principle against selfincrimination. Within this stage, judges would consider the accused’s vulnerability, including
age, mental health, ethnic/cultural background, intelligence (general IQ), personal history, and
others. These factors would help guide the courts to consider “all [the] circumstances” as
required under section 24(2) of the Charter, as well as provide context to the vulnerability of
individuals navigating the justice system (Charterpedia, 2023). Within R. v. Bartle (1994), Chief
Justice Lamer (as he was then) stated that the opportunity to be informed of one’s rights and
acquire legal advice is essential because “when an individual is detained [...], he or she is put in a
position of disadvantage relative to the state. Not only has this person suffered a deprivation of
liberty, but also this person may be at risk of incriminating him‑ or herself” (p. 191). This
vulnerability identified by Lemar, C.J., is essential to the consideration of trial fairness.
Furthermore, building in a vulnerability assessment would look at how the accused has been
impacted by the Charter-infringing conduct and to what extent the courts uphold the rights of the
accused, similarly to the second consideration under Grant (2009). When assessing evidence,
Stillman (1997) placed undue emphasis on evidence classification – conscriptive, nonconscriptive, discoverable, and non-discoverable – which effectively limited the determination of
admissibility to only the conscriptive character and incorrectly diminished the distinction
between testimonial and real evidence (Jochelson & Kramar, 2014; Naudé, 2021; Avey & Moen,
2022). This development in Stillman also created a seeming quasi-automatic exclusionary rule
for non-discoverable conscriptive evidence, which fatally dismantled the balancing required by
the test (R. v. Orbanski; R. v. Elias, 2005). To mend this issue, a consideration of evidence
should be present but only to the extent that it affects the severity of this branch, not overbearing
the overall analysis of s. 24(2).

31

The Seriousness of the Charter Breach
The seriousness of the Charter breach has been an important consideration in s. 24(2)
tests since its introduction in Collins (1987); however, its current emphasis on “good faith”
policing needs to be recalibrated, for it has never been clearly defined and is often
mischaracterized, leading to erroneous conclusions (McGuinty, 2018). Since s. 24(2)
determinations are heavily influenced by police conduct during the violation, there is a need to
shift the focus away from solely police conduct. As McGuinty (2018) highlighted:
The police conduct inquiry seems to have put the entire Grant analysis into a
straightjacket. Relying too heavily on the first factor may lead some courts to fail to
recognize that even minor or good faith policing breaches can still amount to a serious
breach on the rights of an accused. (p. 291)
Shifting the focus away from police conduct and toward how the evidence was obtained allows
for greater emphasis on the nature of the infringement, whether legal avenues were readily
available to obtain the evidence, and to what extent the Charter breaches were avoidable. In
cases of extreme police misconduct and arising patterns of systematic problems, this cannot be
ignored. However, it must not trump the entirety of the analysis.
Society’s Interests in an Adjudication on the Merits
The last branch is adopted directly from Grant and its predecessors, Collins and Stillman.
This factor examines whether the evidence's exclusion or admission would enhance the justice
system's truth-seeking function regarding the evidence’s reliability, probative value weight, and
significance to the prosecution's case (R. v. Grant, 2009). Exploring how evidence operates at
trial and the societal perceptions of “justice” through the reasonable person standard provides

32

justices with the opportunity to address whether admission or exclusion would better support
public confidence in the system.
Again, it is paramount that these branches are each weighted individually along a
continuum from highly in favour of admissibility to highly in favour of exclusion. At the
conclusion – considering each branch and all the circumstances of the case – if the balance is
tipped towards admission, only then is it justifiable to admit unconstitutionally obtained evidence
into trial and deny the accused the remedy of exclusion.
Rejecting the “Fresh Start” Notion
In consideration of the future of s. 24(2), this proposed new test would reject the concept
of a “fresh start” arising under R. v. Beaver (2022). This notion of providing officers with a
means to deconstruct the nexus between evidence gathered and the Charter-infringing conduct
cannot be maintained as it would critically undermine the s. 24(2) test, though minimizing the
seriousness of the state conduct and creating an “unwelcome result which would automatically
immunize prior Charter breaches” (Beaver, 2021, p. 16; Cameron, 2023). Although the notion of
a “fresh start” was not considered during the decision in R. v. Grant (2009), this newly arising
notion was upheld by the SCC in the case of R. v. Beaver (2021), which the majority decision,
written by Justice Jemal, upheld that a fresh start causes the s. 24(2) claim to go unsubstantiated
due to the severed connection between the Charter-infringing conduct and the evidence. The
SCC sets a precedent for all of Canada’s courts, allowing the notion of a “fresh start” to advance
in the face of s. 24(2) is dangerous and inherently hinders the purpose of s. 24(2) to provide a
remedy in cases where an individual's Charter rights are violated by the state (Rudnicki, 2024).
The case of R. v. Beaver (2021) also highlights the need for police powers to be enforced only
within the means of the laws; the officers detained the two accused individuals under legislation

33

that does not exist and then justified it under a law that does not provide means for arrest. The
officers who detained the suspects failed to ensure they understood the gravity of the
circumstances they faced, which is unacceptable; most people do not know the laws being
applied to them and cannot inherently question the police authority or the constitutionality of the
conduct (R. v. Beaver, 2021, at para 220). We must hold our enforcement officers to the highest
standards.
Conclusion and Discussion
Maintaining individual rights as prescribed within the Charter of Rights and Freedoms is
paramount to upholding justice and maintaining public confidence within the justice system. The
evolving s. 24(2) tests underline the role of the Supreme Court of Canada to ensure all cases are
equitably considered and to promote the functions of the Charter as the founders intended.
Within the evolution of the test, it is clear that no one test will provide flawless guidance for all
cases, but through addressing judicial concerns and modifying the test society strides greatly
towards the pursuit of justice.
Since the decision of Grant in 2009, hundreds of cases have evoked s. 24(2) allows for
further discussion, analysis, and data collection, which can be implemented to better understand
the way s. 24(2) functions in trials. This research provides a launching point for further analysis
and discussion over how s. 24(2) should be adapted and amended to meet the current demands of
justice. Further research will need to be conducted primarily in the light of artificial intelligence
integration and technological advancements that have the potential to complicate and
contaminate individuals’ rights at the hands of the state. The SCC will likely draft a new section
24(2) test in upcoming years due to the elapsed time since its last enhancements and emerging

34

research surrounding the Grant test’s application. It is critical that tests continue to evolve to
meet the needs of the courts and ensure justice is upheld.

35

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