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Given the prevalence of gang and gun related homicides, exclusion of illegally obtained evidence has become difficult if not impossible to achieve on a section 24(2) Charter analysis. It is submitted, however, that we should not determine rights based on moral panic respecting the issue.

Commonly, compelling Charter Applications are advanced on section 8 and/or section 9 violations, wherein officers detain young black men on city streets, in vehicles or in apartment complexes, and then subject them to an investigative detention and subsequent search of their pockets, person – and discover a firearm. Judges are often failing to exclude firearms, claiming that the public would be shocked if such evidence was excluded and those responsible would escape punishment. Judges have explicitly stated the following:

I have further considered that the exclusion of the evidence, being an unregistered firearm, would bring the administration of justice into disrepute given the known concern of the public for its safety as it relates to unregistered guns in particular.

– Regina v. Bullok, [2000] O.J. No. 796 (Ont. S.C.)

Judges have distinguished between the exclusion evidence of drugs or property from that of exclusion of evidence of a firearm. In one recent case, the Court excluded evidence of marijuana and cocaine but admitted the firearm, even though all were found during the same unreasonable search and seizure.

In weighing the three factors, I conclude that the evidence of marijuana and cocaine which resulted from the searches of Stewart, Emsley and Tomlin should be excluded and the evidence relating to the firearms and ammunition should be admitted. In reaching this conclusion, I considered the drug evidence, the firearm evidence and ammunition evidence separately in weighing the three Collins factors…. The discovery of the firearms and ammunition resulted in very serious charges. In weighing the three Collins factors, I conclude that the administration of justice would be brought into greater disrepute by excluding the firearms and ammunition evidence that it would by admitting the evidence.

– Regina v. Emsley, [2006] O.J. No. 5476 (Sup. Crt)

Often where courts find arbitrary detentions, the language chosen by the court to describe the breach may limit the remedy. Terms such as “technical” and “good faith” are used to describe the conduct, and thereby justify admitting the impugned evidence. For example:

The detention of the vehicle was brief and there was no damage. This was a lawful investigative detention involving an armed home invasion at the same address to which the vehicle was registered. The search was conducted in good faith. In my view, there were no material differences in the police recollection of events. Therefore, any breach would not have been sufficiently serious to justify the exclusion of evidence. The evidence of the firearm and the marijuana is essential to the prosecution of this case. It is reliable evidence in support of serious criminal charges involving a loaded prohibited firearm ready to be fired as well as possession of 10 ounces of marijuana for the purpose of trafficking. This weighs in favour of admission. These factors strongly suggest that the evidence should be admitted under section 24(2) of the Charter. Its exclusion would have a more serious impact on the administration of justice than its admission.

– Regina v. Van Rossum, [2005] O.J. No. 6136 (Sup. Crt.)

Justice Moldaver in Regina v. L.B. recently provided a template. Justice Moldaver rested his section 24(2) analysis on the media’s interpretation of our city streets and the level of crime which may be plaguing our youth and disregarded the true state of our streets and the over policing of certain communities. He reasoned the following:

This case involves a loaded handgun in the possession of a student on school property. Conduct of that nature is unacceptable without exception. It is something that Canadians will not tolerate. It conjures up images of horror and anguish the likes of which few could have imagined twenty-five years ago when the Charter first came to being. Sadly, in recent times, such images have become all too common – children left dead and dying; families overcome by grief and sorrow; communities left reeling in shock and disbelief. That is the backdrop of this case and in my view, it provides the context within which the conduct of the police should be measured, for the purpose of section 24(2), in deciding whether we should be excluding completely reliable evidence (here, the gun) and freeing, potentially dangerous people without a trial on the merits.

– Regina v. L.B., [2007] O.J. No. 3290 (C.A)

Yes guns are bad, but it is submitted that the danger with this analysis is that it can be used with many crimes. Now it is being extended to drinking and driving cases. Due to the public regard for the carnage caused by impaired driving accidents, the courts are finding that breath readings must be admitted and not excluded (see Regina v. Traicheff [Unreported, 2007]). Cases like L.B. have given police officers wide latitude. We should not, it is submitted, sacrifice fundamental legal rights because of the public concern about gun crime.

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