Supreme Court Judgments

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Decision Content

R. v. Goldhart, [1996] 2 S.C.R. 463

 

Her Majesty The Queen                                                                   Appellant

 

v.

 

William Goldhart         Respondent

 

Indexed as:  R. v. Goldhart

 

File No.: 24835.

 

1996:  March 27; 1996:  July 4.

 

Present:  Lamer C.J. and La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for ontario

 

                   Constitutional law -- Charter of Rights  -- Admissibility of evidence -- Accused arrested on premises searched pursuant to invalid search warrant -- Marijuana seized but excluded from evidence -- Person arrested with accused pleading guilty in prior trial and testifying for Crown at accused’s trial -- Whether witness’  evidence obtained in a manner that breached the Charter  -- If so, whether its admission would bring the administration of justice into disrepute -- Whether a temporal connection existed between the witness’ evidence and the Charter  breach and whether any causal connection with the Charter  breach was too remote -- Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .

                   The accused was convicted of possession and cultivation of narcotics for his involvement in a marijuana-growing operation.  The police, acting on a tip, had conducted a perimeter search of the suspected premises, smelled marijuana and on that basis obtained a search warrant.  The ensuing search resulted in the seizure of a large quantity of marijuana and a key.  The key was admitted into evidence without objection but the marijuana was not because the search was found to be unreasonable contrary to s. 8  of the Canadian Charter of Rights and Freedoms .  The accused, nevertheless, was convicted on the basis of the viva voce evidence of a witness who had been arrested with the accused and who had earlier pleaded guilty.  The accused’s convictions were overturned on appeal.  The Court of Appeal excluded this evidence  under s. 24(2)  of the Charter  because its admission would bring the administration of justice into disrepute.  The Crown conceded before this Court that the search was  unreasonable  contrary to s. 8  of the Charter .  At  issue here was  whether the viva voce evidence was obtained in a manner that violated the Charter  so as to attract the provisions of s. 24(2)  and, if so,  whether its admission would bring the administration of justice into disrepute.  In particular, it had to be decided if a temporal connection existed between the viva voce evidence and the Charter  breach and whether any causal connection with the Charter  breach was too remote.

 

                   Held (La Forest J. dissenting): The appeal should be allowed.

 

                   Per Lamer C.J. and L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.:  In view of the conclusion that the viva voce evidence of the witness was not obtained in a manner that violates the Charter , it was unnecessary to consider whether the admission of the evidence would bring the administration of justice into disrepute.

 

                   Causation was rejected in earlier jurisprudence as the sole touchstone of the application of s. 24(2)  of the Charter  because of the pitfalls that are inherent in the concept.  The concepts of proximate cause and remoteness were developed to inject some degree of restraint on the potential reach of causation.  Although Therens and  Strachan warned against over‑reliance on causation and advocated an examination of the entire relationship between the Charter  breach and the impugned evidence, causation has not entirely been discarded.  Accordingly, while a temporal link will often suffice, it is not always determinative.  It will not be determinative if the connection between the securing of the evidence and the breach is remote (meaning that the connection is tenuous).  Since the concept of remoteness relates not only to the temporal connection but also to the causal connection, the mere presence of a temporal link is not necessarily sufficient.  Given that the whole of the relationship between the breach and the evidence must be examined, the court can appropriately consider the strength of the causal relationship.  If both the temporal connection and the causal connection are tenuous, the court may very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under the Charter .  On the other hand, the temporal connection may be so strong that the Charter  breach is an integral part of a single transaction.  In that case, a causal connection that is weak or even absent will be of no importance.  Once the principles of law are defined, the strength of the connection between the evidence obtained and the Charter  breach is a question of fact.  Accordingly, the applicability of s. 24(2)  will be decided on a case-by-case basis.

 

                   The viva voce evidence was alleged to have been obtained in a manner that breached the Charter .  A distinction must be made between discovery of a person who is arrested and charged with an offence and the evidence subsequently volunteered by that person.  The discovery of the person cannot simply be equated with securing evidence from that person which is favourable to the Crown.  The prosecution has no assurance that the person will provide any information let alone sworn testimony that is favourable to the Crown.  That testimony cannot be treated in the same manner as an inanimate object.

 

                   Here, to find a temporal link the pertinent event is the witness’ decision to cooperate with the Crown and testify and not his  arrest.  Indeed the existence of a temporal link between the illegal search and the witness’ arrest is of virtually no consequence.  Moreover, any temporal link between the illegal search and the testimony is greatly weakened by intervening events of the witness’ voluntary decision to cooperate with the police, to plead guilty and to testify.  The application of the causal connection factor is to the same effect.  The connection between the illegal search and the witness’ decision to give evidence is extremely tenuous.  Given the entire chain of events, the nexus between the impugned evidence and the Charter  breach is remote.

 

                   The viva voce evidence was therefore admissible.  With respect to the key, this issue was not raised at trial and was not referred to by the Court of Appeal.  The Court should not exercise its discretion to allow the issue to be raised.

 

                   Per La Forest J. (dissenting):  Two requirements must be established for the exclusion of evidence under s. 24(2) :  that the evidence was obtained in a manner that infringed or denied a right or freedom guaranteed by the Charter , and that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.

 

                   In relation to the first requirement, it was agreed that a strict causal connection has been rejected by this Court.  However, previous authority establishes that a causal connection will be sufficient to establish that the evidence was obtained in a manner that infringed a right or freedom guaranteed by the Charter .  This authority also establishes that where a causal connection exists between the Charter  violation and the impugned evidence, the issue of whether the admission of this evidence would bring the administration of justice into disrepute must be determined by weighing the contextual factors set forth in the test developed for considering this issue.  This test is bypassed in the majority reasons, given the finding there that a causal connection will not necessarily satisfy the first requirement.

 

                   A movement away from a strict requirement of a causal connection was born out of a concern that a requirement of causality may present an insurmountable obstacle to applicants seeking to have evidence excluded pursuant to s. 24(2)  of the Charter .  A causation requirement was felt to lead to a narrow view of the relationship between the Charter  violation and the discovery of evidence.  Thus, in determining whether evidence was obtained in a manner that infringed the Charter , a generous approach should be maintained, leaving the presence and strength of a causal connection to be considered as a factor in relation to whether the admission of the evidence would bring the administration of justice into disrepute.

 

                   The trial judge made a finding of a causal connection which was logically supported by the facts.  Had the officers not uncovered any information pursuant to the illegal search, they would not have continued the investigation.  The facts revealed that contact with the witness would not likely have occurred without the illegal search.  Despite the trial judge’s finding that the evidence in question arose out of an exercise of the witness’ own free will, this exercise of free will cannot be viewed separately from his arrest.  Any independent decision to testify undertaken by the witness after his arrest was necessarily affected by the arrest.  Accordingly, having regard to the chain of events surrounding the obtaining of the witness’ testimony, there is a sufficient connection to establish that the evidence was obtained in breach of the Charter .

 

                   The importation of American jurisprudence into the analysis under s. 24(2) , without an awareness of the context, should be done with caution.  Given the more flexible approach under the Charter , the American distinction between testimony and inanimate objects should not be adopted.  Failing to follow the established mechanism of s. 24(2)  for determining whether evidence would bring the administration of justice into disrepute in respect of certain types of evidence leads to a fractured system.

 

                   The reasons of the majority of the Court of Appeal were relied on with respect to the issue of whether the admission of the evidence would bring the administration of justice into disrepute.

 

Cases Cited

 

By Sopinka J.

 

                   ConsideredR. v. Strachan, [1988] 2 S.C.R. 980; R. v. Therens, [1985] 1 S.C.R. 613; not followed:  R. v. Church of Scientology of Toronto (No. 2) (1992), 74 C.C.C. (3d) 341; referred to:  R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Collins, [1987] 1 S.C.R. 265; Snell v. Farrell, [1990] 2 S.C.R. 311; R. v. S. (R.J.), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Wiley, [1993] 3 S.C.R. 263; R. v. Plant, [1993] 3 S.C.R. 281; United States v. Ceccolini, 435 U.S. 268 (1978).

 

By La Forest J. (dissenting)

 

                   R. v. Therens, [1985] 1 S.C.R. 613; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Bartle, [1994] 3 S.C.R. 173; United States v. Ceccolini, 435 U.S. 268 (1978); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425;  R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Collins, [1987] 1 S.C.R. 265.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 1 , 8 , 24(2) .

 

                   APPEAL from a judgment of the Ontario Court of Appeal (1995), 25 O.R. (3d) 72, 83 O.A.C. 300, 42 C.R. (4th) 22, 31 C.R.R. (2d) 330,  allowing an appeal from convictions by Murphy J.  Appeal allowed, La Forest J. dissenting.

 

                   Scott K. Fenton, for the appellant.

 

                   Timothy E. Breen, for the respondent.

 

                   The judgment of Lamer C.J. and L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

 

1                        Sopinka J. -- This appeal concerns the question of when evidence can be said to have been obtained in a manner that infringes a right or freedom of the Canadian Charter of Rights and Freedoms  so as to attract the provisions of s. 24(2)  of the Charter .  Specifically, the Court must determine whether the viva voce evidence of a witness who was arrested following an illegal search is subject to a s. 24(2)  analysis.  I have determined that s. 24(2)  has no application in that there is no temporal connection between the viva voce evidence and the breach of the Charter  and that any causal connection is too remote.

 

I.  Facts

 

2                        William Goldhart was convicted for the possession and cultivation of narcotics for his involvement in a marijuana-growing operation. On appeal to the Ontario Court of Appeal (1995), 25 O.R. (3d) 72, Goldhart’s convictions were overturned on the grounds that the viva voce evidence of the Crown’s only witness (Gerald Mayer) had been obtained through a breach of the Charter .  According to the majority of the Ontario Court of Appeal, the admission of Mayer’s evidence at trial would have brought the administration of justice into disrepute.  The Court of Appeal accordingly ordered the exclusion of the evidence under s. 24(2)  of the Charter .  As a result of this decision, Goldhart’s convictions were set aside and replaced with a verdict of  acquittal.  The Crown now appeals to this Court.

 

3                        In assessing the merits of  the Crown’s appeal, it is necessary to review the circumstances in which the evidence at issue (i.e., the oral evidence given by Gerald Mayer) came to be “obtained” by the Crown.  Only if this evidence was “obtained in a manner” that violated the Charter  within the meaning of s. 24(2)  can the evidence be excluded under that section.  If the evidence should not have been excluded under the Charter , the evidence must be admitted and the appeal must be allowed.

 

4                        The investigation that ultimately led to Goldhart’s arrest commenced in February 1991.  At that time, the Peterborough Police received a tip that narcotics were being cultivated by the occupants of a converted schoolhouse near Ennismore, Ontario.  According to information that had been given to the police, an individual named “Willie” was operating a hydroponic marijuana garden in the building.  The property on which the converted schoolhouse was located was registered to Mr. Robert Spence, and a vehicle belonging to William Goldhart (the respondent) had been sighted on the property in question. 

 

5                        Constable Robert Campbell of the Peterborough Police kept the converted schoolhouse under surveillance, but found little information that could further the investigation.  At one point in the course of the police investigation, Constable Campbell and a colleague had knocked on the doors of the schoolhouse in order to meet with the occupants of the building.  Unfortunately for the officers conducting the investigation, no one ever answered the schoolhouse door.

 

6                        Constable Campbell and his colleagues left the converted schoolhouse, and concocted a plan to further their largely fruitless investigation.  Constable Campbell decided to approach the schoolhouse again and knock on the door a second time, this time masquerading as the grandson of the building’s former owner.  According to Constable Campbell, the purpose of this ruse was to make contact with the occupants of the building, and to ascertain whether there were narcotics within the structure.  The police returned to the schoolhouse and Constable Campbell attempted to carry out his plan.

 

7                        Upon arriving at the schoolhouse, Constable Campbell circled the building and approached the back door, still hoping to knock on the door and confront the residents.  As Constable Campbell approached the door, however, he detected the strong odour of marijuana.

 

8                        Constable Campbell asked several of his colleagues to confirm that the odour in question was the scent of marijuana.  The other officers confirmed Constable Campbell’s observations and suspected that the odour came from a vent in the building’s gable.  The officers further noted that the windows of the schoolhouse had been “blacked out”, making it impossible to see the structure’s interior.  After taking note of their sensory observations, the officers left the building without attempting to enter.

 

9                        Using the results of their “olfactory surveillance”, the police obtained a warrant and returned to search the building.  In the basement of the schoolhouse, the police discovered and seized a hydroponic garden which included approximately 3,000 marijuana plants.  The occupants of the schoolhouse were identified as Judith Slippoy, Gerald Mayer and William Goldhart, each of whom was arrested for the possession and cultivation of narcotics.

 

10                      On June 13, 1991, one of the occupants of the schoolhouse (Gerald Mayer) attended court for the purposes of a preliminary hearing.  Mayer had been advised that the propriety of the search was being questioned, and that the evidence obtained through the search could be excluded under s. 24(2)  of the Charter .  Against the advice of his counsel, however, Mayer pleaded guilty to the offence of cultivating narcotics, notwithstanding his counsel’s suggestion that he could have been acquitted.  According to Mayer, a recent religious conversion had led him to enter the plea of guilty, as he wanted “to get something out of [his] heart”.

 

11                      The trial of the respondent Goldhart began on October 19, 1992.  At the commencement of the trial, Goldhart’s counsel challenged the admissibility of the marijuana plants that had been seized in the search of the converted schoolhouse.  Murphy J. of the Ontario Court, General Division held a voir dire in order to determine whether the relevant evidence was admissible under s. 24(2)  of the Charter .  Relying on the decision of this Court in R. v. Kokesch, [1990] 3 S.C.R. 3, Murphy J. determined that the search had been unreasonable and that “the evidence obtained as a result of the search warrant should be excluded”.  Murphy J. rejected the officers’ claim that they had attended at Goldhart’s home for the purpose of identifying the occupants of the schoolhouse.  According to the trial judge, the police were engaged in a search, and the purpose of that search was to gather evidence that could provide the police with sufficient grounds for a warrant.

 

12                      At the conclusion of the voir dire concerning the marijuana plants, the Crown was granted an adjournment to reconsider its position.  When Goldhart’s trial finally resumed, the Crown advised the court that it intended to call Gerald Mayer to give viva voce evidence against the accused.  Counsel for Goldhart applied to have Mayer’s testimony excluded under s. 24(2)  on the ground that Mayer’s evidence had been derived from the unreasonable search and seizure.

 

13                      Murphy J. held a second voir dire in order to determine whether Mayer’s evidence should be excluded under s. 24(2) .  After reviewing the relevant cases, Murphy J. determined that the evidence was admissible as its admission would not adversely affect the fairness of Goldhart’s trial.  The evidence was admitted, and  Goldhart was convicted on the strength of Mayer’s evidence.  Goldhart appealed his convictions to the Ontario Court of Appeal, where a majority of the court allowed the appeal on the grounds that the evidence given by Mayer should have been excluded under s. 24(2) .  As a result of this decision, the Court of Appeal quashed Goldhart’s convictions and entered a verdict of acquittal.  The Crown now appeals that decision to this Court.

 

14                      For the purposes of this appeal, the Crown has made several important concessions.  First, the Crown admits that the warrant used to search the converted schoolhouse was obtained on the strength of unlawfully garnered evidence.  The Crown has properly admitted that, without the information gleaned from the unlawful perimeter search of the old schoolhouse, the warrant that was relied on in this case could not have issued.  As a result, the Crown concedes that the search conducted under the warrant was unreasonable within the meaning of s. 8  of the Charter .

 

II.  Relevant Legislation

 

15                      Sections 8  and 24(2)  of the Charter  provide as follows:

 

                   8.  Everyone has the right to be secure against unreasonable search or seizure.

 

 

                   24. ...

 

                   (2)  Where, in proceedings under subsection (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 the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

III.  Judgments in Appeal

 

(a)  Ontario Court, General Division (voir dire), Murphy J.

 

16                      Murphy J. began by reviewing the judgment of the Ontario Court (General Division) in R. v. Church of Scientology of Toronto (No. 2) (1992), 74 C.C.C. (3d) 341, which dealt with issues similar to the ones raised in this case.  In Church of Scientology, the court had been asked to exclude the evidence of five former scientologists who were discovered by the Crown through a search which violated the Charter .  According to the court, at p. 344:

 

                   The first question to be decided is whether the obtaining of the secondary evidence is sufficiently connected with the breach of the Charter .  If so, the second question under s. 24(2)  of the Charter  is whether the admission of the secondary evidence would bring the administration of justice into disrepute.

 

The court in Church of Scientology found a causal connection between the search and the viva voce evidence given by the scientologists, and accordingly concluded that the evidence triggered the application of s. 24(2)  of the Charter .  According to Goldhart’s counsel in this case, Church of Scientology was analogous to the facts of the case at bar, leading to the conclusion that Mayer’s viva voce evidence, like that of the scientologists, was subject to exclusion under the Charter .

 

17                      Murphy J. considered the presence or absence of a connection between the evidence given by Mayer and the unreasonable search and seizure in this case.  In Murphy J.'s opinion:

 

There is a possibility that the police might have approached [Mayer] without the aid of the search.  There was certainly ample time for the police to make a contact with [Mayer] as they were aware of the presence of [Mayer's] vehicle some considerable time before the search occurred.

 

However, Murphy J. went on to state that:

 

. . . the applicants have satisfied me on the balance of probabilities that there is a causal connection between the seizure of the marijuana plants in violation of the Charter  and the evidence obtained from Mr. [Mayer]. 

 

I am not able to say that Mr. [Mayer] would have come forward had he not been arrested.  The arrest was causally connected with the Charter  breach.

 

According to Murphy J., this led to the conclusion that Mayer’s evidence had been "obtained in a manner" that breached the Charter , thereby engaging the application of s. 24(2) .  As a result, if the admission of the evidence would bring the administration of justice into disrepute, the evidence could be excluded under s. 24(2) .

 

18                      In regard to s. 24(2) , Murphy J. found it useful to consider how Mayer had come forward.  Murphy J. stated:

 

Mr. [Mayer], at his preliminary inquiry, gave evidence that he did not wish to testify but he would, and because of his religion he would tell the truth.  In his evidence on the voir dire Mr. [Mayer] indicated a strong willingness to testify.  He indicated he decided to plead guilty in order to get the matter off his chest.  He entered the plea despite the advice from his counsel.  He was told that there might be a defence based on a Charter  application.  He was told that the other two accused were going to mount such an attack and that he could sit in the bushes and see if they were successful in their attack.  There is no evidence that he was offered any consideration for his plea and testimony.

 

19                      After reviewing the relevant factors, Murphy J. ruled in favour of the admission of the evidence.  He concluded as follows:

 

I have found the evidence of [Mayer] to be causally connected to the Charter  breach, but as my judgment it is still open to me to consider the willingness of Mr. [Mayer] to testify as one of the factors to consider on the issue of s. 24(2) , and particularly as it relates to the disrepute if the evidence is excluded.  I am satisfied that Mr. [Mayer] is now expressing his own free will when he told the Court that he wishes to testify.  It is not related to any favour or inducements.  Mr. [Mayer] is a born-again Christian and one is always suspicious of the timing of such a conversion when it is so closely connected to a plea of guilty on a serious charge.  I am satisfied that Mr. [Mayer's] decision is truly the product of a detached reflection and the expression of a sincere desire to co-operate.

 

Applying the principles that I have reviewed that there should be greater reluctance to exclude live evidence from witnesses, I therefore dismiss the application because to exclude the evidence of a live witness on a trial of this nature would, in my judgment, bring the administration of justice into disrepute in the eyes of a reasonable man dispassionate and fully appraised [sic] of the circumstances of this case.

 

(b)  Ontario Court of Appeal (1995), 25 O.R. (3d) 72

 

                   Labrosse J.A. for the majority (Abella J.A. concurring)

 

20                      The first question considered by the majority of the Court of Appeal was whether the evidence given by Mayer had been obtained in a manner that breached the Charter , and, therefore, attracted the application of s. 24(2)  of the Charter .

 

21                      Labrosse J.A. noted that the trial judge had found a causal connection between the evidence and the breach of s. 8  in the instant case, and that counsel had conceded that this finding could not be attacked.  In any event, Labrosse J.A. found that the finding of the trial judge on this issue had been reasonable.  According to Labrosse J.A., at p. 77:

 

The connection was clearly present.  Without the illegal search, Mayer would not have been arrested or charged.  He would have had no reason to come forward and plead guilty and he would have had no opportunity to give evidence against the appellant.

 

Labrosse J.A. accordingly concluded, at p. 77,  that "the trial judge was correct in finding that Mayer's evidence was gained in contravention of the Charter " and s. 24(2)  was engaged.

 

22                      Having found that s. 24(2)  of the Charter  was engaged, Labrosse J.A. went on to consider whether the evidence given by Mayer should be excluded under that section.  After a review of the principles relating to s. 24(2) , Labrosse J.A. determined that admission of the evidence would bring the administration of justice into disrepute.  He, therefore, set aside the convictions and ordered an acquittal.

 

                   Brooke J.A., dissenting

 

23                      Brooke J.A. saw no apparent reason to depart from Murphy J.'s decision on the application of s. 24(2) .  In Brooke J.A.'s opinion, at p. 83:

 

It is clear from his judgment that his concern was how to deal with live witness testimony as opposed to real evidence or evidence which might be conscripted from the appellant or derivative from it.

 

Brooke J.A. ultimately agreed with the manner in which Murphy J. had addressed this difficult issue.

 

24                      In considering whether Mayer's evidence had been "obtained in a manner" that violated the Charter , Brooke J.A. relied on the decision of this Court in R. v. Strachan, [1988] 2 S.C.R. 980.  In that case, this Court had counselled against the strict application of a “causal connection” analysis and instead adopted, at p. 1005,  an approach that “focuses on the entire chain of events during which the Charter  violation occurred and the evidence was obtained”.  In Brooke J.A.'s opinion, the Court's decision in Strachan made it clear that "remoteness" should be measured by taking into account each link in the chain of the circumstances leading to the discovery of the evidence in each particular case.

 

25                      In the present appeal, at p. 85, Brooke J.A. found it "conceptually difficult" to say that the evidence given by Mayer was "discovered or obtained by the police through the violation of the appellant's rights".  In Brooke J.A.'s opinion, at p. 85:

 

Testimony is the product of a person's mind and known only if and when that person discloses it.  It cannot be obtained or discovered in any other way.  Testimony which is heard for the first time some months after a search cannot be equated with or analogized to evidence of an inanimate thing found or seized when an illegal search is carried out.

 

According to Brooke J.A., there was no causal connection between the evidence given by Mayer and the breach of s. 8 .  In Brooke J.A.'s opinion, at pp. 85-86:

 

Clearly, the testimony of Mayer cannot be said to be derivative of the breach as was the case of the testimony of Hall in R. v. Burlingham ... [1995] 2 S.C.R. 206....  There may be some link to the evidence of the finding of the marijuana, but this is surely not a basis on which to say the testimony was discovered or obtained by the breach of the appellant's rights.  There must be a point at which a chain connecting the breach and the testimony is sufficiently weakened as to render the testimony untainted or too remote from the original breach.  If this is not so, the ramifications may be far-reaching with respect to the exclusion of testimony of a co-accused where the Crown seeks to take advantage of it.  In my opinion, the link between the breach and Mayer's testimony does not survive an analysis of remoteness or attenuation.

 

As a result, Brooke J.A. concluded that Mayer's testimony was insufficiently connected to the Charter  breach to have been "obtained in a manner" that breached the Charter .

 

26                      Finally, Brooke J.A. noted that even if the evidence had been obtained in a manner that breached the Charter , he would nonetheless have held that it was admissible under s. 24(2) .  In Brooke J.A.’s opinion, the trial judge had not erred in assessing the factors set out in R. v. Collins, [1987] 1 S.C.R. 265.  As far as the fairness of Goldhart’s trial was concerned, Brooke J.A. was of the view that in view of the tenuous connection between Mayer’s evidence and the Charter  breach, admitting the evidence was not unfair.

 

27                      While Brooke J.A. agreed that the breach of the Charter  in this case was very serious, he went on to hold that the admission of the evidence given by Mayer would not diminish the esteem in which the public holds the administration of justice.  As a result, Brooke J.A. determined that the evidence was admissible under s. 24(2)  of the Charter .

 

IV.  Issues

 

28                      1.  Was the viva voce evidence of Mayer obtained “in a manner” that violated the Charter  so as to attract the provisions of s. 24(2)  thereof?

 

29                      2.  If the answer to question 1 is “yes”, would admission of the evidence bring the administration of justice into disrepute?

 

30                      The respondent seeks to raise an additional issue relating to the admissibility of evidence that a key was seized from the respondent at the time of arrest.  This evidence was admitted without objection at trial and is not the subject of any comment in the judgments in the Court of Appeal.  It appears that the Court of Appeal refused to entertain the matter.  While we have a discretion to allow a new issue to be raised in this Court, it should not be exercised in favour of the respondent in this case.

 

V.  Analysis

 

31                      I conclude in these reasons that the answer to the question raised in the first issue should be in the negative.  It is therefore unnecessary to deal with the second issue.

 

32                      Section 24(2)  of the Charter  makes it clear that only evidence that was “obtained in a manner” that breached the Charter  can be subject to exclusion under that section.  In the Crown’s submission, the evidence given by Mayer  is not sufficiently connected to the breach of s. 8  to warrant the invocation of s. 24(2) .  In other words, the Crown contends that the evidence given by Mayer was not “obtained in a manner” that breached the Charter .

 

33                      When can evidence be said to have been “obtained in a manner” that breached the Charter ?  The proper method of determining whether s. 24(2)  of the Charter  is engaged was developed by this Court in R. v. Therens, [1985] 1 S.C.R. 613, and Strachan, supra.  In both cases, the Court rejected the strict application of the form of “causal analysis” relied on by the courts below in the instant case.

 

34                      In Therens, a majority of this Court made it clear that the “causal connection approach” is often unhelpful in determining whether a piece of evidence can attract the application of s. 24(2)  of the Charter .  Le Dain J., speaking for the majority on this point, stated, at p. 649:

 

It is not necessary to establish that the evidence would not have been obtained but for the violation of the Charter .  Such a view gives adequate recognition to the intrinsic harm that is caused by a violation of a Charter  right or freedom, apart from its bearing on the obtaining of evidence.  I recognize, however, that in the case of derivative evidence, which is not what is in issue here, some consideration may have to be given in particular cases to the question of relative remoteness.

 

35                      The question of “relative remoteness” or proximity, which is central to the issues in this case, was addressed by the Court in Strachan.  In that case, Dickson C.J., speaking for the Court, warned against the “pitfalls of causation”, and instead embarked upon a form of “proximity analysis” that measures the entire relationship between a breach of the Charter  and subsequently discovered evidence.  Dickson C.J. stated, at pp. 1005-6:

 

                   In my view, all of the pitfalls of causation may be avoided by adopting an approach that focuses on the entire chain of events during which the Charter  violation occurred and the evidence was obtained.  Accordingly, the first inquiry under s. 24(2)  would be to determine whether a Charter  violation occurred in the course of obtaining the evidence.  A temporal link between the infringement of the Charter  and the discovery of the evidence figures prominently in this assessment, particularly where the Charter  violation and the discovery of the evidence occur in the course of a single transaction.  The presence of a temporal connection is not, however, determinative.  Situations will arise where evidence, though obtained following the breach of a Charter  right, will be too remote from the violation to be "obtained in a manner" that infringed the Charter .  In my view, these situations should be dealt with on a case by case basis.  There can be no hard and fast rule for determining when evidence obtained following the infringement of a Charter  right becomes too remote.

 

36                      In these judgments of our Court, causation was rejected as the sole touchstone of the application of s. 24(2)  of the Charter  by reason of the pitfalls that are inherent in the concept.  Its use in other areas of the law has been characterized by attempts to place limits on its reach.  The happening of an event can be traced to a whole range of causes along a spectrum of diminishing connections to the event.  The common law of torts has grappled with the problem of causation.  In order to inject some degree of restraint on the potential reach of causation, the concepts of proximate cause and remoteness were developed.  These concepts place limits on the extent of liability in order to implement the sound policy of the law that there exist a substantial connection between the tortious conduct and the injury for which compensation is claimed.  On the other hand, causation need not be proved with scientific precision.  See Snell v. Farrell, [1990] 2 S.C.R. 311.

 

37                      Causation has also played an important role in other Charter  jurisprudence.  It is the basis for exclusion of evidence that would not have been discovered “but for” the existence of compelled testimony.  See R. v. S. (R.J.),  [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3.  It is also a factor in the application of s. 24(2)  as the underpinning of the principle of discoverability.  See Collins, supra, and R. v. Burlingham, [1995] 2 S.C.R. 206.

 

38                      Cases decided by this Court subsequent to Therens and Strachan confirm the wisdom of the case-by-case approach.  In a series of cases, we considered the applicability of s. 24(2)  to the admissibility of evidence obtained in circumstances in which a warrantless perimeter search preceded the seizure of the evidence pursuant to a search warrant.  In Kokesch, supra, the fruits of the warrantless search were the basis for securing the search warrant.  Dickson C.J., speaking for a unanimous Court on this point, stated at p. 19:

 

                   In my view, the nexus between the warrantless and unconstitutional search of the perimeter of the dwelling-house, and the subsequent discovery of the evidence, is sufficiently close that it can be concluded that the evidence was “obtained in a manner that infringed or denied” s. 8  of the Charter . . . . In the case at bar, observations made by police officers during an unconstitutional search formed the foundation for a search warrant obtained the following day to search the observed premises.  The temporal link was not broken by any intervening events and it follows that the evidence was obtained in a manner that violated the constitutional rights of the appellant.  Consequently, it is necessary to engage in an inquiry, pursuant to s. 24(2)  of the Charter , to determine the admissibility of evidence obtained during the subsequent constitutional search. [Emphasis added.]

 

 

The warrantless search was an integral part of the investigation.  The unbroken temporal link between the warrantless search and the seizure permitted these two events to be treated as part of a single transaction.  In view of these circumstances,  consideration of a causal connection, which was undoubtedly present, was of little importance. 

 

39                      In R. v. Grant, [1993] 3 S.C.R. 223, R. v. Wiley, [1993] 3 S.C.R. 263, and  R. v. Plant, [1993] 3 S.C.R. 281, the information obtained as a result of unconstitutional warrantless perimeter searches was included in the material upon which the police relied to obtain search warrants.  While it was material before the issuing justice, this Court concluded that if the illegally obtained information were expunged from the affidavits presented to the justice, the residue was a sufficient basis for the issue of the warrants.  The warrants were, therefore, valid.  The searches were, however, tainted by illegal warrantless searches which formed an integral part of a single investigatory transaction.  The temporal and tactical connections were sufficiently strong to permit the Court to conclude that it was not realistic to view the perimeter searches as severable from the total investigatory process.  In these cases, given the strength of the factors that I have mentioned, it was not necessary to consider specifically the strength of the causal connection. 

 

40                      Although Therens and Strachan warned against over-reliance on causation and advocated an examination of the entire relationship between the Charter  breach and the impugned evidence, causation was not entirely discarded.  Accordingly, while a temporal link will often suffice, it is not always determinative.  It will not be determinative if the connection between the securing of the evidence and the breach is  remote.  I take remote to mean that the connection is tenuous.  The concept of remoteness relates not only to the temporal connection but to the causal connection as well.  It follows that the mere presence of a temporal link is not necessarily sufficient.  In obedience to the instruction that the whole of the relationship between the breach and the evidence be examined, it is appropriate for the court to consider the strength of the causal relationship.  If both the temporal connection and the causal connection are tenuous,  the court may very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under the Charter .  On the other hand, the temporal connection may be so strong that the Charter  breach is an integral part of a single transaction.  In that case, a causal connection that is weak or even absent will be of no importance.  Once the principles of law are defined, the strength of the connection between the evidence obtained and the Charter  breach is a question of fact.  Accordingly, the applicability of s. 24(2)   will be decided on a case-by-case basis as suggested by Dickson C.J. in Strachan.

 

41                      In concluding that s. 24(2)  applied in this case, the trial judge relied exclusively on his finding that there was a causal connection between the Charter  breach and the viva voce evidence of Mayer.  For convenience, I repeat that finding:

 

. . . the applicants have satisfied me on the balance of probabilities that there is a causal connection between the seizure of the marijuana plants in violation of the Charter  and the evidence obtained from Mr. [Mayer].

 

I am not able to say that Mr. [Mayer] would have come forward had he not been arrested.  The arrest was causally connected with the Charter  breach. [Emphasis added.]

 

42                      Applying the principles in Church of Scientology, supra, the trial judge concluded that s. 24(2)  applied.  With respect, the learned trial judge erred in concluding that the existence of a causal connection was sufficient to attract the provisions of s. 24(2) .  By focusing on the causal connection the trial judge failed to examine the entire relationship between the evidence and the illegal search and seizure.  In particular, he failed to consider whether there existed a temporal link.  He also failed to evaluate the strength of the connection between the impugned evidence and the breach.  To the extent that the Church of Scientology decision supports this approach, it should not be followed.  I note, however, that in that case the trial judge expressly found that the illegally seized documents incriminated the witnesses and were a key factor in the decisions of the witnesses to come forward and testify.  Here, the trial judge, although he found a causal connection, went on to make the further finding that the viva voce evidence of Mayer was an expression of his own free will, a product of detached reflection and a sincere desire to cooperate, largely brought about by his recent conversion as a born-again Christian.  A proper evaluation of these findings in relation to the causal connection might well have led the trial judge to the conclusion that the causal connection was tenuous. 

 

43                      In order to assess properly the relationship between the breach and the impugned evidence, it is important to bear in mind that it is the viva voce evidence of Mayer that is said to have been obtained in a manner that breaches the Charter .  A distinction must be made between discovery of a person who is arrested and charged with an offence and the evidence subsequently volunteered by that person.  The discovery of the person cannot simply be equated with securing evidence from that person which is favourable to the Crown.  The person charged has the right to remain silent and in practice will usually exercise it on the advice of counsel.  The prosecution has no assurance, therefore, that the person will provide any information let alone sworn testimony that is favourable to the Crown.  In this regard it has been rightly observed that testimony cannot be treated in the same manner as an inanimate object.  As Brooke J.A. observed in his dissenting opinion, at p. 85:

 

Testimony is the product of a person’s mind and known only if and when that person discloses it.  It cannot be obtained or discovered in any other way.  Testimony which is heard for the first time some months after a search cannot be equated with or analogized to evidence of an inanimate thing found or seized when an illegal search is carried out.

 

44                      Similarly, Rehnquist J., as he then was, in United States v. Ceccolini, 435 U.S. 268 (1978), explained the difference as follows, at pp. 276-77:

 

Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet.  Witnesses can, and often do, come forward and offer evidence entirely of their own volition.  And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence.

 

45                      When the evidence is appropriately characterized as indicated above, the application of the relevant factors yields a different result from that reached by the trial judge and the majority of the Court of Appeal.  In order to find a temporal link the pertinent event is the decision of Mayer to cooperate with the Crown and testify, and not his arrest.  Indeed the existence of a temporal link between the illegal search and the arrest of Mayer is of virtually no consequence.  Moreover, any temporal link between the illegal search and the testimony is greatly weakened by intervening events of Mayer’s voluntary decision to cooperate with the police, to plead guilty and to testify.  The application of the causal connection factor is to the same effect.  The connection between the illegal search and the decision by Mayer to give evidence is extremely tenuous.  Having regard, therefore, to the entire chain of events, I am of the opinion that the nexus between the impugned evidence and the Charter  breach is remote.  In this regard I agree with Brooke J.A. when he states, at pp. 85-86:

 

Clearly, the testimony of Mayer cannot be said to be derivative of the breach as was the case of the testimony of Hall in R. v. Burlingham....  There may be some link to the evidence of the finding of the marijuana, but this is surely not a basis on which to say the testimony was discovered or obtained by the breach of the appellant's rights.  There must be a point at which a chain connecting the breach and the testimony is sufficiently weakened as to render the testimony untainted or too remote from the original breach.  If this is not so, the ramifications may be far-reaching with respect to the exclusion of testimony of a co-accused where the Crown seeks to take advantage of it.  In my opinion, the link between the breach and Mayer's testimony does not survive an analysis of remoteness or attenuation.

 

46                      For the foregoing reasons, the relationship between the infringement of s. 8  of the Charter  and the viva voce evidence of Mayer does not lead me to conclude that the latter was obtained in a manner that infringes or denies a Charter  right or freedom.   Section 24(2)  of the Charter  is, therefore, not engaged and is not available to exclude the evidence.  The evidence is relevant and was properly admitted at trial.  The majority of the Court of Appeal was in error in setting aside the conviction. 

 

47                      In the result the appeal is allowed, the judgment of the Court of Appeal is set aside and the convictions are restored.

 

                   The following are the reasons delivered by

 

48                      La Forest J. (dissenting) -- I have read the reasons of my colleague Justice Sopinka, but, with respect, I cannot agree with his reasons or his conclusion.  Rather, I am of the view that the appeal should be dismissed for the reasons given by Labrosse J.A. for the majority in the Ontario Court of Appeal (1995), 25 O.R. (3d) 72.  However, I feel constrained to make some additional remarks in light of the manner in which my colleague has approached the issues, which appears to constitute a significant departure from that consistently adopted by this Court.

 

49                      The starting point for determination of whether or not evidence (here the testimonial evidence of the witness Mayer) should be admitted or rejected is the two part test developed by this Court in R. v. Therens, [1985] 1 S.C.R. 613.  The two requirements for the exclusion of evidence under s. 24(2)  of the Canadian Charter of Rights and Freedoms  are: that the evidence was obtained in a manner that infringed or denied a right or freedom guaranteed by the Charter ; and that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute; see Therens, supra, at p. 648; R. v. Strachan, [1988] 2 S.C.R. 980, at p. 1000; R. v. Bartle, [1994] 3 S.C.R. 173, at p. 208.  Of concern here is the manner in which my colleague dealt with the first step, which he found sufficient to dispose of the case.

 

50                      In determining what must be satisfied to meet the first requirement, Sopinka J. rightly points out that a strict causal connection has been rejected by this Court, and he gives as a reason, at para. 36, that “causation was rejected as the sole touchstone of the application of s. 24(2)  of the Charter  by reason of the pitfalls that are inherent in the concept”.  He continues by noting the preference for an approach that advocates an examination of the entire relationship between the Charter  breach and the impugned evidence.  Where I think he departs from previous authority, however, is in his view that such an approach mandates that a causal connection may not necessarily be sufficient to satisfy the first requirement under the two-step test.  Thus, he finds that the concept of remoteness should be applied not only to temporal connection but to causal connection as well, it being appropriate in his view for the Court to consider the strength of the causal relationship at the first step of the admissibility analysis.  He concludes, at para. 40:  “If both the temporal connection and the causal connection are tenuous, the court may very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under the Charter .”

 

51                      On the basis of this interpretation of the jurisprudence, Sopinka J. finds that despite the finding of a causal connection, the trial judge failed to evaluate the entire relationship between the evidence and the illegal search and seizure and, in particular, failed to consider whether a temporal link existed and the strength of the causal connection.  Holding that the connection was too remote in this case, my colleague finds that the first requirement for exclusion of the evidence was not met, obviating the need to consider whether its admission would bring the administration of justice into disrepute.

 

52                      On my reading of the jurisprudence referred to by my colleague, I do not understand it as saying that the strength of a causal connection is relevant in determining whether the evidence was obtained in a manner that infringed the Charter .  Nor do I take it to say that a causal connection will, in some cases, be insufficient on the basis of remoteness or the absence of a temporal link to support the first requirement.  On the contrary, a movement away from a strict requirement of causal connection was born out of a concern that a requirement of causality may present an insurmountable obstacle to applicants seeking to have evidence excluded.  This is not to say, however, that the strength of a causal connection should not be considered in the second branch of the test.  I shall attempt to elucidate these matters by reference to the authorities.

 

53                      In Therens, supra, Le Dain J. expounded in the following manner, at p. 649:

 

                   In my opinion the words “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter ”, particularly when they are read with the French version, obtenus dans des conditions qui portent atteinte aux droits et libertés garantis par la présente charte, do not connote or require a relationship of causationIt is sufficient if the infringement or denial of the right or freedom has preceded, or occurred in the course of, the obtaining of the evidence. It is not necessary to establish that the evidence would not have been obtained but for the violation of the Charter .  Such a view gives adequate recognition to the intrinsic harm that is caused by a violation of a Charter  right or freedom, apart from its bearing on the obtaining of evidence.  I recognize, however, that in the case of derivative evidence, which is not what is in issue here, some consideration may have to be given in particular cases to the question of relative remoteness. [Emphasis added.]

 

It is clear that Le Dain J. set a “causal connection” at the highest level of the types of relationships that could be established between the Charter  infringement and the impugned evidence, such that it would be the most onerous standard required to be met.  In fact, in his view, such a standard was too high.  Accordingly, he ruled that “[i]t is not necessary” to establish a relationship of causation and “[i]t is sufficient” to show that an “infringement or denial of the right or freedom has preceded, or occurred in the course of, the obtaining of the evidence”.  This was the way in which Dickson C.J. subsequently interpreted Le Dain’s words in Strachan, supra.

 

54                      In Strachan, Dickson C.J., citing the above-quoted passage, noted, at p. 1000, that Le Dain J. had “rejected a more stringent interpretation calling for a causal connection between the Charter  violation and the discovery of the evidence”.  He referred to the fact that Esson J.A. in the court appealed from had rejected the Crown’s submission that s. 24(2)  required a causal link, relying on Therens, supra.  Esson J.A. had noted that if such a causal link were present, it would be one factor to take into account in the later s. 24(2)  determination as to whether the admission would bring the administration of justice into disrepute.  Dickson C.J. agreed with this finding of Esson J.A., rejecting the requirement of “a strict causal nexus” for a host of practical reasons.  He further observed that a causation requirement leads to a narrow view of the relationship between the Charter  violation and the discovery of evidence.  In this regard, he found that distinctions based on the circumstances surrounding the violation or the type of evidence obtained should not be relevant and that a preferred approach (at p. 1005) “would be to consider all evidence gathered following a violation of a Charter  right, including the right to counsel, as within the scope of s. 24(2) ”.

 

55                      Consequently, Dickson C.J. favoured the adoption of an approach that focuses on “the entire chain of events during which the Charter  violation occurred and the evidence was obtained”.  He stated, at pp. 1005-6:

 

Accordingly, the first inquiry under s. 24(2)  would be to determine whether a Charter  violation occurred in the course of obtaining the evidence.  A temporal link between the infringement of the Charter  and the discovery of the evidence figures prominently in this assessment, particularly where the Charter  violation and the discovery of the evidence occur in the course of a single transaction.  The presence of a temporal connection is not, however, determinative.  Situations will arise where evidence, though obtained following the breach of a Charter  right, will be too remote from the violation to be “obtained in a manner” that infringed the Charter .  In my view, these situations should be dealt with on a case by case basis.  There can be no hard and fast rule for determining when evidence obtained following the infringement of a Charter  right becomes too remote.

 

In this way, the stringent requirement of showing causality would not be required as the threshold point for admittance to s. 24(2) ; a lesser and more flexible test would ensure that the “entire chain of events” be considered.  Remoteness was mentioned by Dickson C.J., not as a factor relevant to causality, but rather as a factor that was relevant when the lower “temporal connection” was adduced to satisfy the requirement that the evidence was obtained in violation of the Charter .  Thus, while a remote temporal connection could not suffice, the intention under the first step of the determination whether or not to exclude evidence was to ensure that a generous approach was adopted.

 

56                      The “generous approach” was discussed by Lamer C.J. in Bartle, supra, where he characterized the first threshold requirement in these terms, at p. 208: “there must be some connection or relationship between the infringement of the right or freedom in question and the obtaining of the evidence which is sought to be excluded”.  He went on to qualify this by noting that “a strict causal link between the Charter  infringement and the discovery of the evidence is not required”.  He, therefore, found that “so long as it is not too remotely connected with the violation, all the evidence obtained as part of the ‘chain of events’ involving the Charter  breach will fall within the scope of s. 24(2) ” (pp. 208-9).  He continued, at p. 209:

 

This means that in the initial inquiry under s. 24(2)  as to whether evidence has been “obtained in a manner that infringed or denied” Charter  rights, courts should take a generous approach.  However, it should be borne in mind that the presence and strength of the causal connection between the evidence and the Charter  breach may be a factor for consideration under the second, more important, branch of s. 24(2) .  . . . [Emphasis added.]

 

57                      Where a causal connection could not be established, a relationship based on the “chain of events” surrounding the obtaining of the evidence could satisfy the first inquiry where it is not too remote.  However, the relevance of a causal connection was not dismissed, and where a causal connection exists, the strength of this connection should not act to prevent the court from having to deal with s. 24(2) , as in effect my colleague proposes here.  Its strength is more appropriately considered under the s. 24(2)  analysis, where there exists an organized analytical structure for the weighing of factors such as that one.  (In this way, there is an obvious parallel between the two-step inquiry for the exclusion of evidence under s. 24(2)  and the analytical approach to finding a violation of a Charter  right or freedom and then conducting a balancing under s. 1 .)

 

58                      To summarize, where a causal connection exists between the Charter  violation and the impugned evidence, the jurisprudence of this Court provides that it will constitute a sufficient basis on which to find that evidence was obtained in a manner that infringed the Charter .  This conforms with the generous approach favoured under the first step of the inquiry and leaves to the s. 24(2)  inquiry the issue of the strength of the causal connection.

 

59                      In the present case, the trial judge made a finding of a causal connection.  Specifically, he held:

 

On the basis of the evidence which I have heard, the applicants have satisfied me on the balance of probabilities that there is a causal connection between the seizure of the marijuana plants in violation of the Charter  and the evidence obtained from Mr. [Mayer].

 

I am not able to say that Mr. [Mayer] would have come forward had he not been arrested.  The arrest was causally connected to the Charter  breach.

 

60                      Indeed, Labrosse J.A., writing for the majority of the Court of Appeal, remarked upon the reasonableness of this finding and pointed out that it was not being challenged by the Crown.  He stated, at pp. 76-77:

 

                   While causal connection may be a higher test than the temporal connection sufficient to engage the analysis under s. 24(2)  (see R. v. Strachan, [1988] 2 S.C.R. 980 . . .) the finding of the trial judge is not being challenged.  In his factum, Crown counsel argued that the trial judge had been in error in finding a causal connection between the violation and the evidence of Mayer.  However, in oral argument, he acknowledged that it was not open to him to attack this finding of fact of the trial judge.

 

                   In my view, there can be no doubt that the trial judge’s finding of a causal connection between the seizure of the marijuana plants and the obtaining of Mayer’s evidence was reasonable.  The connection was clearly present.  Without the illegal search, Mayer would not have been arrested or charged.  He would have had no reason to come forward and plead guilty and he would have had no opportunity to give evidence against the appellant.

 

61                      I can find no fault with the trial judge’s finding.  It is logically supported by the facts.  The police officers testified as to the lack of progress in the investigation of this case, which included one previous failed attempt to knock on the door of the schoolhouse in order to talk to the occupants, and an intention to return to the schoolhouse one more time to obtain information and “either further [their] investigation or lay this thing to rest”.  Had the officers not uncovered any information upon their return, they would not have continued their investigation.

 

62                      Additionally, despite the identification of a motor vehicle registered to Mayer that was found on the property prior to the illegal search, it was noted by the trial judge that there had been no previous attempt to contact Mayer.  The trial judge held: “There was certainly ample time for the police to make a contact with [Mayer] as they were aware of the presence of this vehicle some considerable time before the search occurred.  They made no such approach.”  In light of the concession by the officers that they intended to abandon the investigation if the impugned search proved fruitless, contact with Mayer would not likely have occurred without the illegal search. This, in my view, is not affected by the finding of the trial judge that the evidence in question, Mayer’s testimony, was an exercise of his own free will.

 

63                      Mayer stated that he had experienced a religious conversion after his arrest which accounted for his desire to come forward and testify.  Mayer’s own trial preceded that of Goldhart.  After Mayer pleaded guilty to the offence of cultivating marijuana, it is interesting to note that his sentencing was adjourned until after Goldhart’s trial.  Whatever significance may be derived from these facts, the more important fact is that Mayer was implicated in the marijuana cultivation and, given his own involvement, it could not be said that he would have independently come forward had it not been for his arrest pursuant to the illegal search.  The trial judge found in fact that he was not able to say that Mayer would have come forward had he not been arrested.  In my opinion, Mayer’s exercise of free will cannot be viewed separately from his arrest.  While it may be capable of being so characterized, any independent decision undertaken by Mayer after the arrest was necessarily affected by the arrest.  Accordingly, it is my view that, having regard to the chain of events surrounding the obtaining of Mayer’s testimony, there is a sufficient connection to establish that the evidence was obtained in breach of the Charter  and, thus, to permit the court to proceed to s. 24(2) .

 

64                      In his reasons, my colleague refers to an American case, United States v. Ceccolini, 435 U.S. 268 (1978).  With respect to the importation of American jurisprudence into the analysis under s. 24(2) , Dickson C.J., as long ago as Hunter v. Southam Inc., [1984] 2 S.C.R. 145, observed that borrowing from our neighbours without an awareness of the context should be done with caution.  That is because, as I noted in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at pp. 546-47, “the Charter  regime mandates a more flexible and contextual approach to the admissibility of evidence than the United States Constitution; thus there is no counterpart to s. 24(2)  of the Charter  in that country”; see also my comments in R. v. Silveira, [1995] 2 S.C.R. 297, at p. 325.

 

65                      In light of the more flexible approach which has been developed in Canada, it would seem unwise, and certainly unnecessary, to adopt the strict American distinction between testimony and inanimate objects, and preferable to leave to the mechanism of s. 24(2)  the determination of whether a particular piece of evidence would bring the administration of justice into disrepute.  The effect could lead to the neglect of some of the factors heretofore considered by this Court, under the rule first enunciated in R. v. Collins, [1987] 1 S.C.R. 265, as necessary in considering the issue of whether evidence should be excluded because its admission would bring the administration of justice into disrepute.  If the method of approaching s. 24(2)  is considered unsatisfactory (and it has not been free from criticism), then we should approach the issue of reformulating it frontally, without creating different approaches for different types of evidence.  This type of fractured approach should be avoided.

 

66                      So far as the second step in the analysis is concerned, the issue of whether the admission of the evidence would bring the administration of justice into disrepute, I shall have little to say beyond what the majority of the Court of Appeal has said.  This is an issue, par excellence, where reasonable people may differ, which is one of the reasons justifying this Court’s policy of deference towards courts of appeal on the issue where there has been no error in principle.  This alone would justify dismissing the appeal.  That being said, I am content to rely on the reasons of the majority in the Court of Appeal.

 

67                      I would simply add this.  On the basis of the principle of “discoverability”, it is my view that all the circumstances confirm that contact with Mayer would not have been made without the illegal search, and he would not have been arrested.  Furthermore, I cannot think that  given his criminal involvement with the cultivation operation it can be said that he would have come forward had he not been arrested.  Even the alleged religious conversion must be viewed in light of his previous arrest.

 

68                      For those reasons, then, I would dismiss the appeal.

 


                   Appeal allowed, La Forest J. dissenting.

 

                   Solicitor for the appellant: The Department of Justice, Toronto.

 

                   Solicitors for the respondent:  Rosen, Fleming, Toronto.

 

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