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Unconstitutionally Obtained Guns and Fentanyl More Likely to be Admitted

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By Joseph Neuberger

Neuberger & Partners LLP

Toronto Criminal Lawyers


In the Court of Appeal of Ontario’s recent decision R v Mengesha, the Court was called upon to decide the appeal of a man facing gun and drug charges based on a Charter violation. The Court ultimately decided not to exclude the evidence. This case represents the latest instance of a trend wherein courts will be less likely to exclude evidence based on the seriousness of the offence.

The current test for the exclusion of evidence in Canada flows from R v Grant.[1] The majority decision, written by then-Chief Justice McLachlin and Justice Charron, reworked the prior framework and directed a three-stage inquiry to determine whether the admission of unconstitutionally obtained evidence would “bring the administration of justice into disrepute” under s. 24(2) of the Charter. Courts are to look to the seriousness of the state-conduct in question, the impact on the Charter rights of the accused, and finally, society’s interest in the adjudication of the case on its merits.[2]  The first two factors are relatively intuitive—the court must ask how badly the police or other state actor behaved, and then how badly the Charter protected interest of the accused was affected. The third step, however, stands out of step with the majority of Canadian criminal law, in that it is effectively an inquiry into how useful the evidence is for the Crown’s case. In this way, it goes against the normal bend of the criminal law that affords the accused person significant legal protections in order to safeguard their rights.

In a concurring opinion, Justice Deschamps suggested that the seriousness of the offence ought to be a factor considered at the third stage of the analysis.[3] However, the majority specifically rejected this approach: the seriousness of the offence is necessarily a neutral factor. While society certainly has a high interest in seeing that serious offences are prosecuted on their merits, society also has a high interest in seeing that individual Charter rights are not thrown aside when an individual is charged with a serious offence.[4]

In 2018, in R v Omar a majority of the Court of Appeal excluded a firearm that was found on the accused pursuant to an unconstitutional detention and search. The majority emphasized that there was no “firearms exception” that would lead to guns being obtained in breach of the Charter be admitted into evidence.[5] Justice Brown, dissenting, would not have excluded the firearm, and made extensive comments regarding how illegal handguns must be treated differently from other evidence in a s. 24(2) analysis.[6] The Supreme Court allowed the Crown’s appeal, but offered scant reasons, instead stating that they substantially agreed with Justice Brown’s dissenting reasons at the Court of Appeal.[7]

R v Mengesha follows in the steps of Omar. In June 2018, several months before cannabis was to be legalized in Canada, the police confronted several young men smoking cannabis by the Rideau Canal. Upon confronting the appellant and detaining him for investigative purposes, the police demanded to see inside the contents of the appellant’s fanny pack. The appellant refused, and the police officer threatened to arrest him for possession of marijuana if he did not allow them to see inside the fanny pack. The appellant still refused and was placed under arrest. After being searched, the appellant was found in possession of a folding knife, drugs and cash. The fanny pack was tossed into the bushes, and later found to contain a loaded handgun. On appeal, the Crown conceded that the appellant’s ss. 7 and 8 Charter rights were violated by the attempt to search the fanny pack prior to the arrest. The appellant was also neither advised of the reason for his detention nor advised of his rights to counsel, contrary to s. 10 of the Charter.[8]

The Court of Appeal agreed with the defence that the breach was serious but did not view the impact on the appellant’s Charter rights as significant. Most interesting, however, were the Court’s comments on the seriousness of the offences in question, and how this ought to weigh into the analysis:

[14] We do not agree that society’s interest in adjudication weighs toward exclusion. On the contrary, the guns, fentanyl, and cocaine represent a serious and ongoing problem for society. Collectively, they amount to a significant danger to the community. The damage caused to families, innocent law-abiding citizens, and the social fabric cannot be overstated. Society looks to the courts to recognize the day-to-day danger caused by drugs and firearms.

[15] These offences are so serious that, when the three factors are balanced, the evidence must be included. Exclusion would bring the administration of justice into disrepute.

This statement from the province’s highest court is worrying: if the seriousness of the offence weighs heavily into the decision to admit evidence, especially with respect to possession based offences (such as gun charges and drug charges), then the courts are effectively stating that police disrespecting the Charter is okay, so long as the Charter violations lead to the police discovering something that helps the Crown prove their case. Further, these comments seem to be more in keeping with the concurring opinion, rather than the majority opinion in Grant.

Compare and contrast this approach with Justice Dennison’s decision in R v Green.[9] There, the accused was charged with firearm offences, but the police denigrated the advice of counsel, and insinuated that if the accused did not confess, his aunt and cousin would be charged with possession of a firearm. While the police misconduct was serious, the impact on the accused’s right to counsel was minimal, as the discovery of the firearm was not causally linked to the statement obtained in violation of the accused’s right to counsel. With respect to society’s interest in the adjudication of the case on its merits, Justice Dennison wrote:

The concern about how police treat accused persons and members of the public is a legitimate consideration. The police serve the community. The community must have faith that the police will treat both accused persons and non-accused persons fairly. I find that the need for a trial on the merits is significantly outweighed by the community’s interest in ensuring that the police act in accordance with the law and Charter values throughout the course of an investigation.

This factor weighs in favour of exclusion of the firearm.[10]

In this passage, Justice Dennison seems to be stating that in some cases, even with reliable evidence that is essential to the Crown’s case, the final Grant factor can actually weigh in favour of exclusion of the evidence.

The law on the exclusion of evidence, particularly as it relates to serious firearm and drug offences, is evidently still shifting. Hopefully, Canadian courts will be able to strike a balance between the legitimate desire to reduce the impacts of the illegal drug trade and gun violence, and the Charter rights of all those in Canada.

[1] R v Grant, 2009 SCC 32.

[2] Ibid at para 71.

[3] Ibid at para 222, see also paras 217-221.

[4] Ibid at para 84.

[5] R v Omar, 2018 ONCA 975 at para 56.

[6] Ibid at paras 133-138.

[7] R v Omar, 2019 SCC 32. Compare this decision with that of the Court in R v Le, 2019 SCC 34, wherein the accused was found with cocaine and a loaded gun pursuant to an arbitrary detention. There, the majority excluded the evidence on the basis of serious Charter breaches.

[8] R v Mengesha, 2022 ONCA 654 at paras 5-6.

[9] R v Green, 2020 ONSC 7242 at paras 1, 6. There were also issues involving the police officer who denigrated the advice of counsel ordering the accused’s cousin to cease recording the arrest, detaining her and not advising her of her right to counsel. The officer in question had a

[10] Ibid at paras 263-264.

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