CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, June 17, 2021

Avey & Moen on Breaches, Bargains, and the Exclusion of Evidence

Jonathan Avey and Bryton Moen (Manitoba Justice - Prosecution Service and Manitoba Justice - Prosecution Service) have posted Breaches, Bargains, and Exclusion of Evidence: Bringing the Administration of Justice into Disrepute (Alberta Law Review, Forthcoming) on SSRN. Here is the abstract:
The test for both exclusion of evidence under section 24(2) of the 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.

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