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

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 favorable to the Crown. The prosecution has no assurance that the person will provide any information let alone sworn testimony that is favorable 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.

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