In R. v. McGuffie 2016 ONCA 365, the Ottawa Police Service received a telephone from a downtown bar advising that a group of five men in the bar had been seen passing a handgun around. McGuffie walked away quickly from the bar. The officer followed him and caught up to McGuffie a short distance from the bar. The officer told McGuffie that he was being detained because he believed he had a handgun. McGuffie denied having a handgun. The detaining officer placed McGuffie in the back of another officer’s police car, and the detaining officer returned to the bar to assist other officers in searching for the handgun. He removed him from the cruiser and did another search and he found “a package of white powder in a rectangular shape” identified as cocaine. McGuffie was also strip searched back at the station. The ONCA ruled that the initial detention of McGuffie on the street was a lawful exercise of the police power, but police infringed his s. 9 right by placing him in the cruiser for 30 minutes. The Court addressed the issue of 24(2).
In paragraph 63, the Court writes “In practical terms, the third inquiry [under 24(2) becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. … If the first and second inquires make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.” The Court has essentially said that it is a “best two out of three” test. As long as the Charter-infringing state conduct is serious and the impact of the breach on the accused is serious, it does not matter what society’s interest in an adjudication on the merits is. While this seems to make sense, and how the test should apply, this is strong wording by Justice Doherty to support this logic.
Furthermore, later in the decision, at paragraph 79, the Court writes “The strong causal connection between the denial of the appellant’s liberty, the unconstitutional search of his person, and the subsequent obtaining of the incriminating evidence speaks to the profound impact of the breaches of the appellant’s Charter-protected interests. The Court is saying that the fact that incriminating evidence was obtained creates an impactful breach on the accused’s rights, which will almost always be the case. If accepted, that would mean that the three step-test – assuming the Crown’s case rests on the evidence obtained by the breach – could turn on the seriousness of the state conduct.
