Onus to establish s. 24(2) exclusion always rests with applicant

R. v. Sandhu, 2011 ONCA 124 reaffirms the proposition that it is the applicant for exclusion under s. 24(2) who must ultimately satisfy the court on a balance of probabilities that the admission of the evidence could bring the administration of justice into disrepute.

(i) The Onus of Proof under s. 24(2) of the Charter

[41] As I have said, relying on Bartle, the trial judge held that evidence obtained by an unauthorized search is presumptively inadmissible and that the Crown therefore bore the onus of demonstrating that admission of such evidence would not bring the administration of justice into disrepute. In my opinion, the trial judge erred in this conclusion.

[42] Bartle does not stand for the proposition that the Crown bears the burden of persuasion under s. 24(2). Rather, at p. 209, Bartle reaffirms the proposition set out in R. v. Collins, [1987] 1 S.C.R. 265 at pp. 284-86, R. v. Simmons, [1988] 2 S.C.R. 495 at p. 532, and R. v. Duarte, [1990] 1 S.C.R. 30, at p. 59, that "it is the applicant for exclusion under s. 24(2) who must ultimately satisfy the court on a balance of probabilities that the admission of the evidence could bring the administration of justice into disrepute."

[43] Moreover, at p. 210, Bartle simply confirms the common sense proposition that in cases involving an unreasonable search, unless the Crown can show the police had a reasonable basis for acting as they did, as a practical matter, a presumption may arise that the Charter-infringing state conduct was serious.

[44] However, this practical consideration relating to but one aspect of the s. 24(2) analysis does not have the effect of transforming the onus of proof under s. 24(2) so as to require the Crown to demonstrate that admission of evidence obtained under the search would not bring the administration of justice into disrepute.

[45] Even if one presumes in certain circumstances that Charter-infringing state conduct is serious, that does not determine the s. 24(2) analysis. Rather, it remains necessary to consider the other lines of inquiry in the Grant analytical framework, and "to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute": see Grant at para. 71.

[46] As I have said, contrary to the trial judge's conclusion, Bartle confirms that the onus of proving the latter proposition is on the applicant.