Breaches, Bargains, and Exclusion of Evidence: Bringing The Administration of Justice Into Disrepute
The test for both exclusion of evidence under section 24(2) of the Canadian Charter of Rights and Freedoms (Charter) and whether a sentencing judge may divert from a joint sentencing recommendation is ostensibly the same: whether the admission of evidence or imposing the proposed sentence “would bring the administration of justice into disrepute.” Despite this, jurisprudence illustrates a vast divergence in what constitutes disrepute: the onerous standard applied to divert from a joint sentencing submission is all but absent when exclusion of evidence is considered under the Charter.
This article addresses this disparate treatment in two parts. First, we argue that courts have consistently misapplied section 24(2) since the Supreme Court of Canada’s decision in R. v. Grant, as determinations of evidence’s admissibility under this section have focused almost exclusively on the factors articulated to guide the analysis, rather than the ultimate question to be determined. Moreover, courts have interpreted the phrase “bring the administration of justice into disrepute” differently depending on context — a trend that ought not to continue. We posit that the disrepute standard ought to be interpreted and applied consistently, with the recognition that “bringing the administration of justice into disrepute” is an exceptionally high bar.
Second, we hope to provoke a broader reliance on the generous remedial powers conferred in section 24(1) of the Charter. This shift — which the Supreme Court has hinted at in recent decisions — would significantly change the adjudication of constitutional issues in criminal proceedings. We hope that the framework we propose for interpreting section 24 will stimulate attention to the practical benefits of eschewing a one-size-fits-all approach to Charter remedies and instead adopting a principled method that responds to each case’s individual circumstances.
Author(s) retain original copyright in the substantive content of the titled work, subject to the following rights that are granted indefinitely:
- Author(s) grant the Alberta Law Review permission to produce, publish, disseminate, and distribute the titled work in electronic format to online database services, including, but not limited to: LexisNexis, QuickLaw, HeinOnline, and EBSCO;
- Author(s) grant the Alberta Law Review permission to post the titled work on the Alberta Law Review website and/or related websites.
- Author(s) agree that the titled work may be used for educational or instructional purposes and/or in educational or instructional materials. The author(s) acknowledge that the titled work is subject to other such "fair dealing" provisions and applicable legislation.
- Author(s) grant a limited license to those accessing the titled work from an electronic database or an Alberta Law Review website to download the titled work onto their computer and to print a copy for their own personal, non-commercial use, subject to proper attribution.
To use the journal's content elsewhere, permission must be obtained from the author(s) and the Alberta Law Review.