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BREAKING THE PURPOSIVE BARRIER: EMBRACING NON-REPETITION AS A GUIDING PRINCIPLE FOR SUBSECTION 24(2) OF THE CHARTER.

INTRODUCTION
"[T]he vitality of the exclusionary rule depends entirely on the
purposes that are identified for exclusion."(1)


Why should judges exclude unconstitutionally obtained evidence from criminal trials? Why should accused persons sometimes go free "because the constable has blundered"? (2) Subsection 24(2) of the Canadian Charter of Rights and Freedoms (3) empowers judges to resolve these vexing questions, with a view to protecting the administration of justice from disrepute. The Supreme Court of Canada (SCC) has taken up that challenge on multiple occasions, most recently in 2009 through its decision in R v Grant. (4) From the host of rationales available to justify an exclusionary rule, the Court selected one: "to preserve public confidence in the rule of law and its processes". (5) In doing so, the Court rejected another plausible justification for excluding evidence under subsection 24(2): deterring future Charter breaches. (6)

The Court's reticence to structure subsection 24(2) around deterrence is understandable--as Justice Deschamps noted in Grant, "the deterrent effect of the exclusion of evidence has never been proved empirically". (7) The Court's choice of exclusionary rationales has, however, raised several concerns of its own. Some commentators have argued that subsection 24(2) must aim to deter constitutional violations to proactively incentivize state compliance with the Charter. (8) Others have noted that Grant's rejection of the deterrence rationale raises internal inconsistencies within the Court's subsection 24(2) jurisprudence. (9) Still others have suggested that an exclusionary rule based solely on the "public confidence" rationale provides trial judges with little assistance in resolving close cases where admission and exclusion of evidence both appear defensible ("penumbral cases"). (10)

This article proposes a fresh solution to these significant concerns, one that does not embrace the deterrence rationale and its shaky evidentiary foundation. The SCC should recognize "non-repetition" a principle well entrenched in international law, as a second objective guiding subsection 24(2) analysis. (11) Non-repetition aims at preventing states that have violated international law from committing analogous breaches in the future, by compelling those states to provide "guarantees of non-repetition". These guarantees range from general assurances of compliance with international law to specific commitments to amend domestic policies and legislation.

Non-repetition would apply to subsection 24(2) in two ways under my proposed approach. First, evidence of policy reforms, disciplinary measures, and/or training initiatives undertaken by the state (12) in response to a Charter breach would be explicitly recognized as relevant to the subsection 24(2) analysis. In penumbral cases, this evidence may attenuate the seriousness of a Charter breach sufficiently to permit admission of evidence. In other circumstances (13), the Crown's failure to advance non-repetition evidence may support exclusion. Second, on subsection 24(2) applications, the Crown would be allowed to provide proposals for future state initiatives aimed at improving compliance with the Charter. If deemed credible, proportional, and effective by a court, these proposals could tip the scales in penumbral cases towards admission of evidence. (14)

My proposed approach significantly improves upon the Grant test. It provides stronger incentives for state compliance with the Charter, clarifies doctrinal uncertainties within the Court's subsection 24(2) jurisprudence, (15) and offers a firmer basis for courts to resolve penumbral cases than the "preserving public confidence" inquiry. Crucially, it furthers these goals while strengthening Grant's consistency with subsection 24(2)'s text and the SCC's jutisprudence on pre-emptive protection for Charter rights.

My approach also improves upon other alternatives to the Grant test. It provides a more thorough critique of Grant than proposals to reform select components of the Court's three-part test. (16) These criticisms, while important and often persuasive, ignore the deeper issue underlying Grant--the Court's selection of rationales for excluding evidence under subsection 24(2). By contrast, my proposed approach begins with a first-principles reexamination of the Grant framework and extends beyond a narrow critique of the test's structure and composition. Moreover, academic literature that does examine the purposes underlying exclusion of evidence overwhelmingly revolves around a standard menu of four options: compensation, vindication, disassociation, and deterrence. (17) My approach, based on the international law principle of non-repetition, challenges that orthodoxy and provides a novel lens through which to view exclusion of evidence under subsection 24(2).

Further, while non-repetition shares common aims with deterrence-based approaches, it improves upon those theories in two ways. First, non-repetition rests on a stronger evidentiary foundation. Under a deterrence-based approach, judges must presume--without convincing empirical support and with minimal information regarding the likely response of stage agents--that judicial decisions excluding evidence can influence future state behavior. (18) Non-repetition, by contrast, operates on proof of state reforms already undertaken (or promised) to promote Charter compliance. Judges operating under my proposed approach will therefore receive far clearer information regarding the states willingness and capacity to address the causes of a Charter breach (19)--and can tailor their subsection 24(2) determinations accordingly.

Second, incorporating non-repetition within subsection 24(2) requires less radical changes to the Grant framework than a deterrence-based reform proposal. (20) Unlike the deterrence principle, non-repetition need not comprise the sole justification for excluding evidence under subsection 24(2), (21) and, in fact, fits hand-in-hand with the current goal of "preserving public confidence in the rule of law and its processes". Evidence of appropriate state reform initiatives can restore public confidence in the police and/or Crown after a Charter breach. In such circumstances, it is less necessary to incur the cost to the truth seeking process that inevitably accompanies exclusion of reliable evidence. In other situations, however, admission of evidence in the absence of robust assurances of non-repetition may undermine public confidence in the administration of justice.

My argument proceeds in five parts. I begin by outlining a set of traditional justifications for exclusionary rules. I then assess how the Grant framework incorporates these rationales, before critiquing the SCC's choice of principles for excluding evidence under subsection 24(2). Next, I analyze possible options for reform. Finally, I explain how non-repetition operates in international law, describe how the doctrine could operate under subsection 24(2), and justify its use within the Grant framework. Counter-arguments to my position are addressed throughout.

A. PURPOSES FOR AN EXCLUSIONARY RULE: TRADITIONAL PERSPECTIVES

Before suggesting how an exclusionary rule might be reformed, it is first necessary to determine why the rule exists in the first place. (22) I therefore begin my argument by canvassing traditional justifications for exclusionary rules, before examining how these rationales influence the Grant test.

As noted above, exclusionary rules are generally justified through one or more of the following principles: (23)

1. Compensation

2. Vindication

3. Dissociation

4. Deterrence

1. COMPENSATION

Unconstitutionally obtained evidence may be excluded to provide personal redress for the victim of a constitutional violation. (24) On this view, evidence is excluded to restore the accused to the same position she would have been in if not for the state's illegal act(s). Compensation "trades on the adage that there is no right without a remedy". (25) Since the primary prejudice to the accused from the state's actions is often the use of the unconstitutionally obtained evidence at trial, exclusion may sometimes be the only effective personal remedy for a constitutional breach. Admission of the evidence, by the same token, could perpetuate the harms of the state's initial unconstitutional conduct. (26) Compensation has also been used to support exclusion where the unconstitutionally obtained evidence impacts "trial fairness" and breaches the accuseds right against self-incrimination. (27)

2. VINDICATION

Vindication aims at publicly affirming the importance of constitutional rights. In Vancouver (City) v Ward, (28) the SCC (addressing the purposes underpinning awards of constitutional damages) distinguished between compensation and vindication as remedial principles: "While one may speak of vindication as underlining the seriousness of the harm done to the claimant, vindication as an object of constitutional damages focuses on the harm the Charter breach causes to the state and to society." (29) The vindication rationale, therefore, "focuses on the harm [that the rights] infringement causes society" (30)--i.e. diminished public confidence in the efficacy of constitutional protection. (31) Exclusion of evidence is justified, on this view, as a means of reassuring the public that their Charter rights have genuine value and are more than a "form of words". (32)

3. DISSOCIATION

Courts may exclude evidence to dissociate themselves from constitutional violations. (33) Unlike a vindication-based approach, which seeks to uphold public confidence in constitutional rights, the dissociation rationale seeks to preserve public confidence in the judiciary. (34) Admission of evidence may threaten public confidence in the courts, particularly if the judiciary is viewed as a participant in "a single governmental action prohibited by the [constitution]". (35) Excluding evidence, or so the argument goes, dispels these perceptions and "preserve[s] the judicial process from contamination". (36)

4. DETERRENCE

Deterrence is a forward-looking justification for exclusion of evidence that "seeks to regulate government behavior to ensure compliance with the constitution". (37) On this view, exclusionary rules must "compel respect for the constitutional guarantee in the only effectively available way--by removing the incentive to disregard it". (38) The deterrence rationale underpins the American exclusionary rule, (39) where it has "has been used to justify a rigid approach to exclusion regardless of the relative seriousness of the constitutional violation or the crime charged", but "has also justified a refusal to exclude evidence in contexts where it is believed that the police will not be influenced by judicial rulings". (40) Canadian courts have recognized deterrence as a justification for awarding costs against the Crown in criminal cases, (41) as well as awarding constitutional damages. (42)

5. BALANCING COMPETING INTERESTS

Set against the four rationales identified above is the truth-seeking role of the criminal justice system, hindered each time relevant and reliable evidence is excluded from trial. As exclusion of evidence often guts the prosecution's case against an accused, the remedy engages society's "collective interest" in ensuring "that those who transgress the law are brought to trial and dealt with according to the law". (43) Many exclusionary rules therefore grant the judiciary discretion to balance the importance of deterrence, compensation, vindication, and/ot dissociation with society's interest in adjudicating cases on their merits. (44)

B. SELECTING REMEDIAL PURPOSES FOR SUBSECTION 24(2): THE SCC'S APPROACH

1. THE PRE-GRANT FRAMEWORK

The SCC established a multi-factor balancing test in R v Collins (45) to determine exclusion of evidence under subsection 24(2). The Court grouped those factors into the following categories:

1. The impact of admitting the evidence on the fairness of the trial;

2. The seriousness of the Charter violation; and

3. The effect of excluding the evidence. (46)

Collins embraced "dissociation", "compensation" (47), and "balancing" as central principles guiding a subsection 24(2) analysis. As Justice Lamer observed:
s. 24(2) is not a remedy for police misconduct, requiring the exclusion
of the evidence if, because of this misconduct, the administration of
justice was brought into disrepute. Section 24(2) could well have been
drafted in that way, but it was not. Rather... the purpose of s. 24(2)
is to prevent having the administration of justice brought into further
disrepute by the admission of the evidence in the proceedings. This
further disrepute will result from the admission of evidence that would
deprive the accused of a fair hearing, or from judicial condonation of
unacceptable conduct by the investigatory and prosecutorial agencies.
It will also be necessary to consider any disrepute that may result
from the exclusion of the evidence. (48)


2. THE GRANT TEST

The SCC reorganized the Collins factors into a three-stage balancing inquiry in Grant. The new subsection 24(2) test requires judges to consider the seriousness of the state's Charter infringing conduct, the impact of the Charter breach on the accused, and society's interest in an adjudication on the merits. (49) That said, the central question guiding subsection 24(2) analysis remains substantially unchanged from Collins: whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter and adopting a "long-term perspective", would conclude that the admission of the evidence would bring the administration of justice into disrepute. (50)

The Grant majority recognized "preserving public confidence in the rule of law and its processes" as subsection 24(2)'s overarching purpose. (51) Chief Justice McLachlin (as she was then) and Justice Charron then identified specific remedial rationales influencing the "public confidence" inquiry. Consistent with Collins, the Grant majority emphasized the importance of dissociation as a remedial goal by requiring judges to consider: "whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct." (52) The Grant majority also highlighted the connection between exclusion of evidence and vindication of Charter rights: "[t]he more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute." (53)

The Grant majority considered two other plausible purposes for excluding evidence under subsection 24(2): compensating the accused and deterring Charter breaches. The majority explicitly rejected both rationales, but justified neither decision in depth: (54) "s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns.... The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence". (55) Grant, therefore, addressed all five remedial principles identified earlier in this article; it emphasized the importance of dissociation, vindication, and balancing, but rejected the deterrence and compensation rationales.

C. CRITIQUING THE GRANT FRAMEWORK

Despite the decision's shortcomings, Grant improved upon the Collins framework in two ways. First, responding to criticism by several commentators, the Court rejected the near-automatic exclusion of "conscripted" evidence stemming from Collins and Stillman. (56) Second, Grant also provided lower courts with clearer guidance on balancing the three branches of the subsection 24(2) test. (57) That said, the Grant framework raises three significant doctrinal and practical challenges of its own:

1. it unnecessarily restricts subsection 24(2)'s potential to incentivize state compliance with the Charter;

2. it is doctrinally unclear;

3. it provides judges with limited assistance in resolving penumbral cases.

1. RESTRICTING INCENTIVES FOR CHARTER COMPLIANCE

The Grant test unduly restricts subsection 24(2)'s potential to incentivize state compliance with the Charter. I begin with a (hopefully) uncontroversial premise: between two doctrinally sound exclusionary theories, we should prefer the one that better prevents Charter breaches before they occur. A "doctrinally sound" theory, as I understand the term, is both consistent with subsection 24(2)'s wording and based on rationales appropriate for an exclusionary rule. (58) An exclusionary rule that meets both these criteria and better incentivizes Charter compliance (an "Improved Rule") should be preferred for two reasons.

First, an Improved Rule would expose fewer people to unconstitutional treatment. As the Grant majority itself notes, "for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge". (59) Exclusion of evidence in individual cases does little to prevent unlitigated Charter breaches, unless the general framework for excluding evidence exerts a positive influence on future state conduct.

Second, an Improved Rule would enhance doctrinal coherence between Charter rights and the remedies available for their breach. The rights guaranteed in the Charter are meant to be pre-emptively protected, not merely remedied after a violation. The Court's Charter jurisprudence, particularly in the section 8 context, (60) supports this view. As Justice Dickson observed in Hunter v Southam: (61)
Such a post facto analysis would, however, be seriously at odds with
the purpose of s. 8. That purpose is, as I have said, to protect
individuals from unjustified state intrusions upon their privacy. That
purpose requires a means of preventing unjustified searches before they
happen, not simply of determining, after the fact, whether they ought
to have occurred in the first place. (62)


The Court's subsection 24( 1 ) (63) jurisprudence also suggests that Charter rights should be pre-emptively protected. As mentioned earlier, constitutional damages are awarded under subsection 24(1) partly to deter future Charter breaches. (64) This approach promotes purposive coherence between the rights guaranteed by the Charter and the remedies available for their breach. (65) Subsection 24(2) should aim to promote similar consistency. For example, it would be "incongruous" if individuals' rights against unreasonable search and seizure were provided a "different quality of protection" under section 8 than under subsection 24(2). (66) Such an approach would undermine the SCC's guidance to construe the Charter--rights and remedies--"as a coherent system". (67) An Improved Rule therefore enjoys greater doctrinal consistency with the Court's stated objective of proactively protecting Charter rights.

Consequently, if we accept my basic premise--that between two doctrinally sound exclusionary rules, the one that provides better ex ante protection for Charter rights should be preferred--we gain a useful metric by which to compare the Grant test to possible alternatives. As mentioned earlier, Grant explicitly rejects incentivizing Charter compliance as an objective for subsection 24(2). Any benefits on this front are, by the majority's admission, a "happy", but unintended, consequence. (68) This choice of remedial purposes unsurprisingly restricts subsection 24(2)'s ability to protect Charter rights ex ante. As Michael Johnston has argued, "[h]aving a stage that looks at state misconduct, but is not expressly concerned with punishing or deterring behaviour that tramples the supreme law of the land, should lead one to question the point of s. 24(2)". (69) Multiple commentators have highlighted subsection 24(2)'s potential to improve institutional compliance with the Charter and address illegal policing practices. (70) These goals are difficult to realize under the Grant test, given its exclusive focus on perception-based guiding principles, i.e. vindication and disassociation. While Grant may provide some indirect means of addressing the most clear-cut forms of police abuse, (71) an exclusionary rule formally and explicitly oriented towards non-repetition of Charter breaches could more effectively motivate policy changes such as stronger disciplinary measures for Charter breaches and more robust training regimes (72)--reforms that address significant ongoing challenges among Canadian police departments. (73)

Incorporating non-repetition into the Grant framework could ameliorate some of these concerns (74) and generate "feedback and reform loops that encourage remedial action to prevent repetition of the harmful acts that led to the [Charter breach] in the first place". (75) Crucially, this approach also places the Grant test on stronger principled footing. In other words, subsection 24(2) can be structured to better incentivize Charter compliance, while improving--or, at the very least, without sacrificing--our fidelity to subsection 24(2)'s wording and "public confidence in the rule of law and its processes". Vindication and disassociation are powerful rationales for an exclusionary rule that function comfortably, if not optimally, alongside non-repetition.

2. DOCTRINAL UNCERTAINTY

The Grant framework has contributed to doctrinal uncertainty within the Court's subsection 24(2) jurisprudence. This uncertainty stems from a lack of purposive clarity within Grant itself. Despite the Court's explicit rejection of the deterrence rationale, the Grant test implicitly incorporates deterrence-based concerns. Indeed, Professor Don Stuart has described as "double-speak" the Court's unwillingness to acknowledge that deterrence influences subsection 24(2) analysis. (76) The aggravating impact of "patterns" (77) of police abuses on the seriousness of a Charter violation evinces a concern for deterrence (78), as does the Court's reticence to recognize the seriousness of an offence as a factor supporting admission of evidence. (79) The latter development is particularly "counter-intuitive", (80) as under a purely vindication/dissociation approach, it is "difficult to accept that, other things being equal, the societal interest in an adjudication on the merits would not be greater in [a] murder case than in [a] marijuana possession case." (81) Further, the weight of pre-Grant case law, international decisions and the Court's subsection 24(1) jurisprudence all support considering the seriousness of an offence as a relevant, non-neutral factor in assessing exclusion of evidence. (82)

The role of the seriousness of an offence under Grant is better understood through the lens of deterrence, as a signalling mechanism to police forces that respect for Charter rights remains equally important when investigating serious offences. This is a perfectly valid position, but runs counter to the Court's stated purposes for excluding evidence under subsection 24(2). As I argue below, my proposed approach makes explicit the remedial rationales truly animating the Grant test. It also provides a clear and coherent method for assessing the seriousness of an offence under subsection 24(2)--a particularly important contribution given the Court's recent splits on this issue in Saeed (83) and Paterson. (84)

3. RESOLVING PENUMBRAL CASES

The Grant framework does not promote clear, principled decision making in penumbral exclusion cases. This concern, like the ones identified above, flows from Court's choice of remedial purposes in Grant. I agree fully with the following comments from Professor Paciocco (as he was then) on the vindication and dissociation rationales: "[w]hat is far from theoretical, however, is the reality these rationales do not provide objective criteria for decision-making. They each encourage exclusion as matters of principle--because is it [sic] the 'right thing'. Yet when it comes to the exclusion of evidence there is often little agreement over what the right thing is." (85) Amplifying these concerns is the fact that courts must analyze exclusion of evidence (already a "qualitative exercise, not capable of mathematical precision" (86)) from the perspective of "reasonable" members of the community "informed of all relevant circumstances and the values underlying the Charter". (87) This inquiry is not grounded in actual public opinion--members of the public tend to be more supportive of the admission of evidence than judges post-Grant. (88) Instead, judges must find a basis for their decision "within themselves", with caution and impartiality. (89) This approach does not promote objective decision making in difficult cases--the very situations where the process of arriving at a decision is of paramount importance. (90) As I argue below, non-repetition provides a more "concrete and objective" (91) basis to resolve these penumbral cases. (92)

D. OPTIONS FOR REFORM

In this section, I consider and ultimately reject two alternatives to the Grant test that do not involve non-repetition. Given the difficulties with a purely vindication/disassociation-based approach, one could argue that increased emphasis on the two remedial rationales rejected in Grant--compensation and deterrence--would improve the Canadian exclusionary rule. This view is mistaken. Neither compensation not deterrence should be accorded greater weight under subsection 24(2). Addressing the issues with Grant requires a solution outside the four traditional justifications for exclusion of evidence identified earlier in this article.

1. AN INCREASED ROLE FOR COMPENSATION

Grant makes clear that subsection 24(2) does not aim to compensate accused persons. (93) Some commentators have suggested re-visiting this conclusion. (94) I envision at least three problems with such an undertaking. First, Grant arguably accommodates compensatory concerns by recognizing the impact of a Charter breach on the accused as a distinct branch of the exclusion test. (95) Second, providing the "compensation" rationale greater weight than the status quo (96) may provide criminal defendants with "windfalls" that are disproportionate to the magnitude of the state's unconstitutional conduct. (97) Consider the following scenario posited by Akhil Reed Amar, in which the police search the residences of two murder suspects (Adam and Bob) with identical, deficient justifications: "In twin Adam's house, they find nothing; in twin Bob's, the bloodstained shirt. The shirt is introduced as evidence in Bob's murder trial, and he gets twenty years. Now, both Adam and Bob bring independent civil actions for damages." (98) Bob should not obtain a larger damage award than Adam simply because he was convicted of murder. The "legally cognizable" (99) harm both Adam and Bob suffered was the state's breach of their section 8 rights. If they both enjoyed an additional, personal right not to be prosecuted by reliable evidence derived from that breach, Bob's damage recovery would exceed Adams. (100) Such an outcome would suggest that "the more guilty you are, the more you benefit" (101) from a breach--an unsatisfactory principle for an exclusionary rule. A more palatable explanation is that an accused's right to have evidence excluded is not a purely personal one, but contingent on other systemic factors such as non-repetition and disassociation. (102) Third, increased focus on compensation only impacts accused persons whose cases are brought before courts. (103) Exclusion of evidence is an "utterly ineffective form of compensation for persons who suffer constitutional violations but who are not prosecuted". (104) A compensation-based theory will not increase subsection 24(2)'s sensitivity to the real-world causes of Charter breaches.

2. AN INCREASED ROLE FOR DETERRENCE

Strong arguments can be made for incorporating deterrence into the subsection 24(2) framework. (105) Deterrence reflects concern for preventing Charter breaches ex ante. It is the guiding principle underpinning the American exclusionary rule (106) and enjoyed some support in Canadian jurisprudence pre-Grant. (107) Deterrence also provides a clearer metric for resolving close cases than "preserving public confidence".

Compelling as these claims may be, they suffer from two fundamental problems. First, the deterrent effect of exclusionary rules "may well be overstated". (108) Empirical evidence on the subject is, at best, mixed. While some studies suggest that the American exclusionary rule has improved police compliance with some basic constitutional requirements--for example, acquiring warrants post-Mapp (109)--other studies find little support for the exclusionary rule's deterrent impact. (110) Police officers may be unaware of judicial decisions on exclusion of evidence. (111) Even assuming police awareness, those decisions may not serve as sufficient incentive for officers in the field to comply with the Charter. Much of the police's work is not geared towards securing evidence for prosecution. Only a fraction of cases proceed to trial. (112) Influencing police behaviour "through a small subset of cases" is not a promising endeavour. (113)

Second, even if the police seek to understand and comply with judicial rulings, complex multi-factor balancing tests--such as the Grant approach--do not provide them with clear guidance. (114) One could argue, as Professor Penney has, that deterrence should therefore be subsection 24(2)'s sole aim. (115) While this approach may simplify the Grant test, it sits in tension with subsection 24(2)'s guidance to consider all relevant circumstances in determining exclusion of evidence. The justice systems repute does not depend only on systemic deterrence, but also on the just resolution of individual cases and on upholding public faith in Charter rights and the judiciary. In any event, a theory based solely on deterrence does little to addtess the evidentiary shortcomings discussed above. Indeed, according to some commentators and jurists, those evidentiary weaknesses have significantly compromised the deterrence-based American exclusionary rule. (116) As Justice Brennan lamented in his United States v Leon dissent:
By remaining within its redoubt of empiricism and by basing the rule
solely on the deterrence rationale, the Court has robbed the rule of
legitimacy. A doctrine that is explained as if it were an empirical
proposition, but for which there is only limited empirical support, is
both inherently unstable and an easy mark for critics. The extent of
this Court's fidelity to Fourth Amendment requirements, however, should
not turn on such statistical uncertainties. (117)


Finally, proposals to substantially alter the Grant test and refocus it on deterrence carry limited practical value, as they overlook the "institutional prestige" already invested in the Court's existing framework. (118) More importantly, radical changes to the Grant test would undermine the principle of stare decisis and deprive litigants, state agents, and lower courts of the benefits of consistency and continuity--particularly important considerations given that Grant itself departed from the previous Collins test. My proposed approach mitigates these problems, as non-repetition fits hand-in-hand with the goal of "preserving public confidence in the rule of law and its processes".

Despite these weaknesses, deterrence aims at laudable goals. In the following section, I show how a "non-repetition" approach achieves many of those objectives without engaging the significant concerns described above.

E. TOWARDS NON-REPETITION

1. WHAT IS NON-REPETITION?

Non-repetition is a remedial principle recognized under public international law and international human rights regimes. (119) It supplements three traditional forms of reparation in international law: restitution, compensation, and satisfaction. (120) These traditional remedial rationales are backwards-looking. Restitution aims to re-establish "the situation that existed prior to the occurrence of the wrongful act." (121) Compensation addresses financial losses sustained by a state as a result of another state's wrongful act(s). (122) Satisfaction redresses those injuries "not financially assessable, which amount to an affront to the State." (123)

By contrast, non-repetition is a forward-looking principle. (124) It aims at preventing states that have violated international law from committing analogous breaches in the future. (125) Non-repetition flows from the principle that prevention is generally better than an ex post facto remedy under international law. (126) That said, non-repetition facilitates purposes beyond prevention. It also seeks to restore the legal relationship and confidence impaired by a state's breach of international law. (127) In doing so, non-repetition "highlights the fundamental function of responsibility in the maintenance, restoration and guarantee of respect of international legality". (128) Non-repetition has been justified as a remedy for the social harm caused by breach of international human rights law, as a "guarantee to the society as a whole that similar violations will not be performed by the state again." (129)

Non-repetition operates procedurally through international courts and tribunals. States and individuals pursuing legal action in international courts often seek "guarantees of non-repetition" ("GNRs") as a remedy for breaches of international law. GNRs can take many forms, including:

1. formal assurances from the offending state that it will in the future respect the rights of the offended state;

2. the adoption of reform measures addressing the immediate cause of the violation;

3. the adoption of reforms to address the conditions that allowed the wrongful act to take place; and

4. the adoption of, or derogation from, specific legislation. (130)

In response to requests for GNRs, the defendant state will sometimes point to steps it has already taken to ensure non-repetition of the breach(es). An international court may recognize that these steps are sufficient to satisfy GNR requests. The Avena case (131) is one such example. The United States detained, tried, and convicted 54 Mexican nationals without informing them of their right to consular assistance, and without informing the Mexican consulate. Mexico sued the United States for breaching its obligations under the Vienna Convention on Consular Relations (132) (the "Vienna Convention") and sought, inter alia, a GNR. (133) The International Court of Justice (ICJ) found that the United States had breached the Vienna Convention, but took note of the United States' efforts to encourage future implementation of its obligations under the Vienna Convention. (134) The ICJ ruled that these efforts satisfied Mexico's request for a GNR. (135)

In other situations, international courts may order states to take additional measures to provide meaningful guarantees of non-repetition. The ICJ exercised this power in LaGrand. (136) Germany sued the United States for charging and sentencing two of its nationals to death without informing them of their right to consular assistance. Germany sought three forms of GNR from the United States: an assurance that the United States would not repeat its unlawful acts, a commitment by the United States to ensure in "law and practice the effective exercise of rights" under the Vienna Convention, and provision for "effective review and remedies" for death penalty convictions in violation of the Vienna Convention. (137) In response, the United States tendered evidence of efforts to improve compliance with the Vienna Convention, including:

1. the publication and circulation of over 60,000 copies of a State Department brochure to federal, state, and local law enforcement;

2. the implementation of a training program for all levels of government; and

3. the creation of a permanent State Department office to ensure compliance with consular notification and access requirements. (138)

The ICJ ruled that these reforms satisfied Germany's first GNRrequest. The Court rejected Germany's second request as it found no United States law in tension with Vienna Convention obligations. However, the Court acceded to Germany's third request, noting:
The Court considers in this respect that if the United States,
notwithstanding its commitment referred to in paragraph 124 above,
should fail in its obligation of consular notification to the detriment
of German nationals.... [I]t would be incumbent upon the United States
to allow the review and reconsideration of the conviction and sentence
by taking account of the violation of the rights set forth in the
Convention. This obligation can be carried out in various ways. The
choice of means must be left to the United States. (139)


In determining whether to grant a GNR, courts will consider the "risk of repetition of the breach, the seriousness of the initial breach, and the character of the obligation breached. (140) Courts also consider the adequacy of alternate measures to GNR. (141) In LaGrand, the ICJ rejected the United States' argument than an apology to Germany was a sufficient remedy. (142)

Non-repetition has been widely affirmed as a remedial principle under international law. Article 30 of the International Law Commission's Draft Articles on State Responsibility reads: "The State responsible for the internationally wrongful act is under an obligation: (a) to cease that act, if it is continuing; (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require." (143) Non-repetition is also formally recognized under Article 18 of the Basic Guidelines for remedies for international human rights law violations, adopted by the United Nations General Assembly in 2006. (144) A number of other international bodies recognize non-repetition as a remedial goal, including the ICJ, the Inter-American Court of Human Rights, the Committee Against Torture, the Human Rights Commission, and the Committee on the Elimination of Discrimination Against Women. (145) States frequently seek--and are often awarded--GNRs in disputes before international courts. (146) While its status in international law has not always been certain, "it can without doubt be considered that guarantees of non-repetition are now part of the legal consequences of an internationally wrongful act." (147)

2. APPLYING NON-REPETITION TO EXCLUSION OF EVIDENCE

In this section, I argue that non-repetition should guide our thinking about the Canadian exclusionary rule. I first outline how non-repetition might be introduced into subsection 24(2) analysis, before explaining why we should welcome such a development.

(a) How Will Non-Repetition Fit within Subsection 24(2)?

Under my proposed approach, non-repetition would be recognized as a remedial rationale underpinning subsection 24(2), alongside the existing goal of "preserving public confidence in the rule of law and its processes". I envision non-repetition influencing subsection 24(2) analysis in two ways. First, evidence of policy reforms, disciplinary measures, and/or training initiatives undertaken by the state in response to a Charter breach will be explicitly recognized as relevant under subsection 24(2). Second, on subsection 24(2) applications, the Crown will be allowed to provide proposals for future reforms and initiatives aimed at ensuring compliance with the Charter.

i. Existing Reforms

First, evidence regarding state reform measures undertaken since a Charter breach that aim at ensuring future Charter compliance ("non-repetition evidence") will be explicitly recognized as relevant to the Grant test. (148) These reform measures could include disciplinary action against police officers, new training initiatives, and/or modifications to internal policies and regulations at the local, regional, provincial, and/or national levels. The Crown would be free to tender this evidence on subsection 24(2) applications of its own accord. Courts, for their part, should not presume non-repetition of Charter breaches. Rather, they should assess the Crown's evidence to see if they are satisfied, on a balance of probabilities, (149) that:

1. the reforms have been instituted and will be maintained;

2. the reforms address the cause of the Charter breach;

3. the reforms are a proportional response to the Charter breach; and

4. the reforms will be effective at ensuring future Charter compliance. (150)

Factor (1) requires courts to assess the credibility of the institution responsible for the reforms in question. Consider, for example, a police department that repeals an unconstitutional practice directive regarding roadside stops, only to reinstitute it a short while after the Crown secures a series of favorable admissibility rulings. The Crown will have an extraordinarily challenging task leading non-repetition evidence about that police department in subsequent cases, as a judge will have little confidence that any future reforms will continue to be maintained.

Factor (2) scrutinizes the rational connection between a reform measure and the Charter breach in question. Factor (3) considers the proportionality of that response, consistent with international jurisprudence which assesses the "adequacy" of GNRs provided by states. (151) For instance, modest budgetary increases for training programs may not be a proportional response to a widespread lack of understanding regarding Information to Obtain (ITO) procedures or subsection 10(b) (152) obligations. Finally, factor (4) requires judges to consider, in light of all the evidence presented at the first three stages and any other relevant factors, whether the state's reform measures will be effective at ensuring non-repetition of the Charter breach(es). These four requirements ensure that unconstitutionally obtained evidence will not be admitted on the basis of generic reform proposals with little prospect of materially improving state compliance with the Charter.

Evidence of existing reforms could fit within the current Grant framework in two ways. It could be considered under the first branch of the Grant test. As Justice Lacelle noted in Sauve, "[v]arious factors may attenuate the seriousness of police conduct that results in a Charter breach". (153) The state's efforts to respond to a Charter breach could be recognized as one of those factors. Those efforts, however, should not be allowed to overwhelm the "seriousness of state conduct" analysis. Alternatively, non-repetition could be recognized as a factor solely relevant to the " balancing" stage of the Grant test, as a means of resolving close cases. The first approach is analytically cleaner. The second approach reduces the risk of non-repetition overwhelming the subsection 24(2) analysis. I am ambivalent about which approach should be adopted. (154) Both ate preferable to the existing test.

Under either approach, non-repetition should primarily be used to resolve penumbral cases. Vindication and dissociation demand exclusion of evidence obtained through egregious police conduct that severely impacts an accused's Charter rights, even if the state undertakes robust measures to prevent such actions in the future. (155) However, many cases are less clear. Non-repetition has a legitimate and useful role to play in close cases when exclusion and admission both appear defensible. I provide three examples of how non-repetition might apply in such situations below.

R v Peluso (156)

Two co-accused faced fraud charges. The Crown sought to introduce approximately 200 intercepted communications from a separate Royal Canadian Mounted Police (RCMP) drug investigation. The accused parties applied to have the evidence excluded, alleging that the RCMP had overstepped the terms of its judicial authorization in collecting those communications. The applicants pointed to specific institutional practices involving call interception and recording that infringed the terms of the RCMP's warrants and, in their view, justified exclusion. (157)

Justice O'Marra rejected the accused parties' application. He found that the RCMP's interception and recording practices infringed section 8 of the Charter, but admitted the evidence under subsection 24(2). In his Grant analysis, he found that:

1. the RCMP's Charter-infringing conduct was serious; (158)

2. the accused's rights had been minimally impacted; (159) and

3. society's interest in an adjudication on the merits favoured inclusion. (160)

This is the sort of penumbral case where non-repetition can play a useful role. And indeed, in Peluso, the Crown tendered evidence of the RCMP's thorough institutional response to ensure future Charter compliance. (161) Justice O'Marra took note of this evidence under the first branch of the Grant test:
In terms of an institutional response, although there was a pattern of
use of the put away feature in other cases, as evinced by the list of
30 project investigations, once the appropriateness of the practice was
questioned steps were taken to ensure that it was not used unless
specifically permitted by the authorization. I find no basis to
conclude that the conduct of the RCMP as an institution displayed a
flagrant disregard for Charter standards. (162)


The weight Justice O'Marra placed on this evidence is unclear. He certainly used it to reject the applicants' allegations of bad faith conduct by the RCMP. The evidence may not have played any further role in his analysis. Under my approach, Justice O'Marra would have been entitled to make a finding--similar to the ICJ in Avena and LaGrand--that the RCMP's institutional response provided a satisfactory assurance of non-repetition and attenuated the seriousness of its Charter-infringing conduct.

R v Palmer (163)

The police arrested Mr. Palmer on suspicion of dealing crack cocaine and brought him to a station. His cellphone was confiscated, along with some money on his person. He was strip searched in a long narrow room with an open door. Several officers stood at the door's opening. The officers testified that they could not see the accused as he undressed. The search yielded no evidence. After the search, Mr. Palmer left the room without his trousers on. No officer informed him that he could put his trousers on before leaving. The accused sought to exclude from evidence the money, the cellphone, and evidence derived from a search of the cellphone.

Justice Thorburn held that the strip search infringed section 8. (164) She found the officers' conduct in strip-searching Mr. Palmer "troubling". (165) However, she also found that the impact on Mr. Palmer's rights had not been significant for a number of reasons, including the fact that the officers at the door had not seen him undress. (166) Finally, Justice Thorburn held that society had a strong interest in an adjudication of Mr. Palmer's case on its merits. (167) She ultimately admitted the evidence.

Non-repetition could have played a useful role in this case. Prior to the accused's subsection 24(2) application, the Toronto police had introduced "best practices" guidelines that prohibited the type of search conducted in Palmer. (168) Justice Thorburn made note of this fact in her decision to admit the evidence, (169) consistent with a non-repetition approach.

R v Jones (170)

The police received a 9-1-1 call from a distressed mother seeking assistance regarding her daughter, who suffered from bipolar disorder and was refusing to leave her mother's house. (171) A police constable arrived at the scene. The mother gave him permission to enter the house to remove her daughter. The constable entered, spoke with the daughter, and convinced her to leave. In accordance with local police practice, he then searched the rest of the house to "clear the premises" and to make sure no one else in need of help was present. (172) The officer discovered a marijuana grow-up operation.

The trial judge admitted the evidence, ruling that the officer's search had been Charter-compliant. The British Columbia Court of Appeal reversed his decision and excluded the evidence under subsection 24(2). Justice Neilson noted that the officer's actions were consistent with local police practice to "clear the premises" following a 9-1-1 response search. (173) Justice Neilson therefore found a systemic basis for the Charter breach, which aggravated the seriousness of the officer's conduct: "[i]n short, if Cst. Abram's rationale for the search were accepted, it would lead to an indiscriminate and unauthorized search in response to every 9-1-1 call, with no consideration of citizens' privacy rights." (174)

Consider a slight modification to the facts of Jones, whereby the Crown had tendered clear and convincing evidence that the police department in question had repealed the search policy, adopted a new Charter-compliant 9-1-1 response directive, and introduced new training initiatives to get officers up to speed with the reforms. In such circumstances, a key basis for the Court of Appeal's decision would be significantly mitigated and the balance of factors may well have favored admission.

Non-Repetition and Exclusion of Evidence

The foregoing examples suggest that non-repetition will be most impactful in cases where the three Grant factors are closely balanced. Further examples are readily available within post-Grant case law. (175) In such cases, non-repetition will favor admission where there is convincing evidence that the causes of the Charter breach have been effectively addressed. (176)

However, non-repetition will not always support admission of evidence. It is often unclear clear whether a Charter breach flowed from systemic issues or was attributable only to the officer(s) involved in a particular case. Judges should strive to resolve these issues on the basis of non-repetition evidence, particularly in cases:

1. where officer testimony indicates a broader departmental practice; (177)

2. where officers clearly lack knowledge regarding certain Charter rights (e.g. paragraph 10(b) obligations), possibly due to deficient training schemes; (178)

3. where the same officers or police departments carry out similar Charter breaches on multiple occasions, calling into question the efficacy of local disciplinary structures. (179)

In such situations, judges should consider whether the Crown has advanced non-repetition evidence. (180) Failure to do so should amplify the seriousness of the state's Charter-infringing conduct. (181)

The facts of R v Thompson (182) provide a helpful illustration. The police employed a "dynamic entry technique" to search a residence. (183) They entered unannounced, deployed an explosive device instead the house, handcuffed the occupants and removed them from the premises. The officers discovered marijuana inside the residence.

Justice Code found a section 8 violation on these facts, but admitted the evidence under subsection 24(2). (184) He reached this conclusion despite testimony from the officers that "they always search in this manner" and that it was "normal practice." (185) Justice Code attached little significance to their statements, as he found they "did not reflect the experience of the court". (186) Under my proposed approach, he should have considered whether the Crown provided evidence about existing police departmental policies--or recent reform--regarding house entry techniques. This evidence would have provided a firmer basis for a subsection 24(2) inquiry than Justice Code's intuition about the practices of that particular police force. Had the Crown failed to provide non-repetition evidence, Justice Code should have drawn an inference of systemic state conduct and likely excluded the evidence.

Non-repetition evidence could also have impacted the Alberta Court of Queen Bench's decision in R v Villaroman, (187) a case involving non-compliance with section 489.1 of the Criminal Code. (188) Despite finding a "shocking" (189) number of Canadian cases involving non-compliance with section 489.1, and characterizing these cases as evidence of a "systemic failure" (190) to comply with mandatory provisions of the Criminal Code, Justice Yamauchi admitted the evidence in dispute (child pornography). The following passage from his reasons is particularly instructive: "[a]lthough this Court finds that Cst. Morcom's approach to this matter, and in fact, the CPS's training of him, was incomplete or sloppy, Cst. Morcom was not acting mala fides. He did what he could, with his limited training, by contacting the ICE and speaking with an officer experienced in the area of child pornography". (191) Under my proposed approach, Justice Yamauchi should have considered whether the Crown provided evidence on how Constable Morcom's police department planned to address issues through officer training. Had the Crown failed to do so, the case may well have been resolved differently.

The Crown's failure to provide evidence of meaningful disciplinary measures could also weigh against admission of evidence. This approach is consistent with case law involving stays of proceedings under subsection 24(1). In R v Tran, (192) two police officers beat the accused and broke his jaw. They then tried to force him to admit on videotape that his injuries had been caused by a fall. The Ontario Court of Appeal granted the accused's application for a stay of proceedings, finding, among other things, that "[t]he failure of the SIU and other authorities to follow through with a meaningful investigation [of the officers]... militates in favour of a stay". (193) The Court of Appeal reached a similar conclusion in R v Singh, (194) where Justice Doherty noted: "The absence of any meaningful disciplinary measures is telling, in my view, because the inability or refusal of the police to muster a pointed response in the face of such unchallenged allegations of serious criminal conduct by state actors during a criminal investigation makes the case for a stay under the residual category all the more compelling." (195)

The principles from Tran and Singh, 2013 are readily applicable to subsection 24(2) cases. The "residual category" of the stay of proceedings test examines whether the state's conduct "undermines the integrity of the judicial process" (196)--a similar inquiry to determining whether exclusion of evidence would reduce public confidence in the justice system.

Non-repetition will therefore favor exclusion of evidence where a trial judge, faced with uncertainty over whether a Charter breach flowed from ongoing systemic issues, is not provided with satisfactory non-repetition evidence, and draws an adverse inference against the Crown. (197) Non-repetition evidence provides a firmer basis for drawing such inferences than judicial intuition. A more objective, evidence-based approach could also mitigate subtle biases within the subsection 24(2) framework that favor findings of "good faith" police action. (198) Further, a non-repetition approach more fairly distributes the evidentiary burden of determining "systemic" violations between the accused and the Crown. Accused persons may lack the funds, knowledge, and/or authority to gather evidence regarding local police practices and policies. The Crown stands in a better financial and logistical position to provide such information, and should be incentivized to do so when such evidence could be relevant to a subsection 24(2) application.

ii. Future Reforms

The Crown will be allowed to propose future reforms to address the causes of a Charter breach on subsection 24(2) applications. These proposals would operate procedurally in a near-identical manner to the process for introducing evidence of existing reforms. (199) For example, in the modified Jones scenario described above, the Crown could have tendered affidavit evidence from the head of the relevant police department stating that if the Court found the internal 9-1-1 call response policy non-compliant with section 8, the department would repeal the policy, adopt a new Charter compliant directive and provide appropriate training to officers. A similar type of guarantee could have been provided in Thompson with respect to the "dynamic entry" search technique. Conversely, failure to provide such guarantees could, in appropriate cases, (200) militate against the admission of evidence.

Allowing the Crown to provide proposals for future reforms enhances the efficacy of a non-repetition approach. The police may not wish to alter a local practice until a court has ruled on its constitutional status. (201) They may also wish to delay introducing new training programs or disciplining an officer until after a court ruling. (202) In such situations, guarantees of future reforms provide the police and Crown with a practical method to repair public confidence and address the causes of a Charter breach, without preempting a judicial decision.

The primary risk with the future reform approach is, of course, nonperformance. Evidence of existing policy changes/disciplinary action inherently attracts greater trust than promises of future action. (203) Credibility will therefore play a vital role in subsection 24(2) applications involving guarantees of future state reform. A police department's failure to follow through on a reform commitment would severely undermine that department's credibility--and the credibility of the Crown attorney that provided the guarantee in court. Judges would be highly reticent to accept non-repetition evidence from those individuals/departments on future subsection 24(2) applications. This approach is well-supported in Canadian jurisprudence. In R v Caines, (204) Justice Greckol found that the Edmonton RCMP branch had failed to implement the RCMP reforms tendered as evidence in Peluso. Relying in part on this fact, Justice Greckol found an abuse of process and excluded certain wiretap evidence. In Thompson, Justice Code recognized that future use of "dynamic searches" would constitute more serious state conduct under the first branch of Grant. (205) Other judges have also warned that repeat Charter violations will be treated more seriously after clear judicial warnings. (206) My approach is consistent with those principles, and helps ensure that the Crown does not advance "sham" reforms--or commitments for reform--on subsection 24(2) applications. (207)

(b) Why Adopt Non-Repetition?

Non-repetition addresses all three concerns with the Grant test outlined in Part C. Before explaining how it does so, I address two preliminary objections to considering it as a remedial principle under subsection 24(2).

i. Does Non-Repetition Improve Upon Deterrence-Based Theories?

It may be argued that "non-repetition" has nothing to offer subsection 24(2) that a "deterrence" theory could not provide. This view is mistaken. There is certainly overlap between the two approaches; broadly, both theories support exclusion of evidence when concerns over repetition of Charter violations persist, and support admission when such concerns are absent. Non-repetition, however, enjoys two significant advantages over deterrence as a remedial rationale.

First, non-repetition is premised on a sounder empirical foundation. Deterrence-based theories presume that judicial decisions excluding evidence can influence state behavior. Judges operating under a deterrence approach admit evidence when they determine that exclusion would not improve the chances of future Charter compliance. Judges exclude evidence when they determine that admission would encourage future unconstitutional conduct. (208) Crucially, judges make these determinations in individual cases with minimal information regarding the likely real-world response of state agents--and without convincing empirical evidence that exclusion of evidence imposes a general deterrent effect. (209)

By contrast, a non-repetition approach operates on proof of state reforms already undertaken (or promised) to promote Charter compliance. Judicial decisions are not presumed to influence reform measures; rather, evidence of reform measures is permitted to influence judicial decisions. Deterrence-based theories support excluding evidence to incentivize more extensive training programs and disciplinary regimes. (210) Non-repetition theories require evidence of robust training programs and disciplinary measures before determining whether to exclude evidence. Judges operating under my proposed approach will, therefore, receive far clearer information regarding the state's willingness and capacity to address the causes of a Charter breach (211)--and can tailor their subsection 24(2) determinations accordingly.

Second, non-repetition can be incorporated alongside other remedial rationales such as vindication and dissociation. Deterrence, on the other hand, sits uneasily with those objectives. I agree with Professor Penney that if deterrence were to be recognized under subsection 24(2), it would have to be the provision's sole guiding principle to allow for a simple, bright-line exclusion test. (212) This requirement flows from deterrence theories' focus on regulating the conduct of individual police officers, who are more likely to comply with bright-line rules in the field. (213) Non-repetition, on the other hand, operates on an institutional level--police department and ministry heads will ultimately sign off on reform proposals in less urgent and uncertain circumstances than those confronting individual officers in ongoing investigations. Non-repetition, therefore, fits more comfortably into a multi-factor balancing test like the one adopted in Grant. By contrast, explicitly orienting subsection 24(2) around deterrence would require a wholesale change to the Grant framework, for the reasons Professor Penney identifies. (214) Beyond the empirical and principled problems with this approach, (215) it would entail introducing a significantly altered test for exclusion of evidence. As outlined earlier, this development would undermine the principle of stare decisis and deprive litigants, state agents and lower courts of the benefits of consistency and continuity. Non-repetition fits more readily into the Grant framework and should be preferred over a deterrence-based approach for that reason as well.

ii. Is Non-Repetition a Doctrinally Sound Remedial Rationale?

Another possible objection to my proposed approach is that despite any practical benefits it provides, non-repetition is a doctrinally unsound rationale for subsection 24(2). Recall that I earlier set out two ways in which an exclusionary rule may be doctrinally deficient:

1. the theory is inconsistent with subsection 24(2)'s wording; and

2. the theory rests on remedial rationales that are inappropriate for an exclusionary rule.

Neither of these possibilities apply to my proposed approach.

Non-Repetition Improves Consistency with Subsection 24(2)'s Wording

Subsection 24(2)'s wording arguably precludes consideration of remedial rationales beyond vindication and disassociation. Justice Lamer adopted this position in Collins, emphasizing that subsection 24(2) was deliberately drafted to focus on disrepute to the administration of justice caused by admission of evidence in the proceedings. (216) On this view, subsection 24(2) is not concerned with compensating individuals or rectifying police misconduct, but with preventing further disrepute to the perception of the justice system. The SCC affirmed this conception of subsection 24(2) in Grant. (217)

Justice Lamer's approach unduly restricts subsection 24(2)'s scope. The provisions wording, "would bring the administration of justice into disrepute", (218) does not exclude remedial rationales beyond vindication and disassociation. (219) The phrase "administration of justice" is not necessarily limited to courts. More plausibly, the term captures all state agents responsible for upholding Charter rights within the justice system--the police, the Crown, and the judiciary. This interpretation finds support in federal (220) and provincial (221) policing legislation employing identical language, other provisions of the Constitution, (222) and academic literature. (223) Moreover, Grant itself recognizes that "[t]he term 'administration of justice' is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole." (224)

If the phrase "administration of justice" encompasses police forces and the Crown, reform commitments by both actors comprise part of "all the circumstances" relevant to a subsection 24(2) application. Credible and effective non-repetition measures by the police and/or the Crown can enhance public confidence in the administration of justice after a Charter breach, mitigating the need for exclusion of evidence. Indeed, restoration of confidence is one of the core purposes of GNRs in international law. (225) Several scholars have also noted that strong accountability and training mechanisms--and systemic reforms designed to improve them--play a vital role in upholding public confidence in police forces. (226) Conversely, the absence of such reforms can breed public mistrust, strengthening the case for exclusion of evidence. Des Rosiers and Norton's comments on the lack of institutional reforms within the Toronto police force following the G20 protests are apposite: "there is little accountability for the long-term damage done to freedom of association, freedom of expression and public trust in police. On a systemic level, little has been done to heal the relationship between protestors and police or guarantee that the types of police excesses that happened during the G20 could not happen again". (227)

Even if the phrase "administration of justice" is restrictively interpreted to cover only the judiciary, "disrepute" is a broad enough concept to accommodate a non-repetition approach. Effective non-repetition measures minimize the risk that courts are sanctioning the "long-term" (228) use of unconstitutional practices. (229) Exclusion of probative evidence from criminal proceedings in such circumstances is therefore unnecessary under a dissociation approach--and may in fact detract from the judiciary's reputation. In other circumstances (outlined above), admission of evidence in the absence of robust assurances of non-repetition may undermine public confidence in courts and Charter rights more broadly.

Non-Repetition Is an Appropriate Rationale for an Exclusionary Rule

Non-repetition may be viewed as an inappropriate rationale for an exclusionary rule. As a factor entirely extrinsic to the accused's case, its use under subsection 24(2) may appear insensitive to individual rights. One could also argue that "[t]here is something crass and unseemly about inviting courts to exclude in order to punish police officers into compliance", and that a non-repetition approach punishes "the public... for the sins of the police". (230) Neither objection carries significant weight.

The argument that considering "factors extrinsic to the accused's case" devalues individual rights suffers from two problems. First, accused persons do not enjoy an absolute personal right not to be prosecuted by reliable evidence derived from a constitutional violation--recall the damage claims example involving Bob and Adam. Second, the Grant test itself focuses on factors extrinsic to the accused's case--more specifically, the public's long-term perception of the judiciary and of Charter rights. The Court, after all, endorsed a "systemic" and "long-term" perspective for subsection 24(2) analyses, focussed beyond the prosecution immediately before a court. (231) My proposed approach simply introduces an additional systemic, long-term consideration: the risk of repeated Charter breaches. My approach and the Grant test, therefore, both focus on "factors extrinsic to the accused" and cannot be distinguished on that basis alone.

The objection regarding "punishing the public for the sins of the police" is similarly unpersuasive. The public is arguably punished for the "sins of the police" anytime reliable evidence of a crime is excluded because of the state's unconstitutional actions. This holds equally true under vindication and dissociation-based approaches where the public is "punished" because a court is unwilling to lend its imprimatur to the state's unconstitutional conduct. A non-repetition approach at least aims at providing the public with some tangible benefit for incurring the short-term "punishment" of seeing a potential criminal walk free: future protection from unconstitutional state conduct, acquired through state reforms and/or commitments to reform. Few would argue that this is an illegitimate objective. In fact, as I have argued earlier, seeking to proactively protect Charter rights is doctrinally consistent with the SCC's guidance that Charter doctrine should seek to prevent constitutional violations from occurring in the first place.

Non-repetition is therefore an entirely valid remedial objective for an exclusionary rule. In fact, incorporating non-repetition into subsection 24(2) analyses does not merely maintain the Grant test's status as a doctrinally sound exclusionary rule--it strengthens it. As I have argued above, failure to consider non-repetition evidence sits uneasily with subsection 24(2)'s guidance to evaluate "all the circumstances" when assessing the exclusion of evidence. Further, ignoring non-repetition evidence contradicts the goals of a vindication/dissociation approach. Credible and convincing non-repetition evidence mitigates the risk that courts are sanctioning charter-infringing practices in the "long-term". Exclusion of probative evidence from criminal proceedings in such circumstances weakens, rather than enhances, the judiciary's reputation. On the other hand, public faith in Charter rights and the court system may sometimes be undermined if courts admit evidence even when the state fails to effectively respond to a Charter breach.

iii. Non-Repetition Addresses Practical Concerns with the Grant Test

Earlier, I proposed a simple metric to compare the Grant test to possible alternatives. Between two doctrinally sound exclusionary rules, I argued we should prefer the one that better protects Charter rights ex ante. I have now demonstrated that my proposed approach relies on principles appropriate for an exclusionary rule and improves--or, at the very least, maintains--the Grant test's consistency with the text of subsection 24(2). I now turn to showing how it provides significant practical benefits in improving state compliance with the Charter. I also provide two additional, independent reasons for preferring my approach over Grant: improved doctrinal clarity and greater assistance for judges in resolving penumbral cases. Together, these arguments address all three problems with the Grant test addressed in Part C namely, that the Court's current approach:

1. unnecessarily restricts subsection 24(2)'s potential to incentivize state compliance with the Charter;

2. is doctrinally unclear; and

3. provides judges with limited assistance in resolving penumbral cases.

Incentivizing State Compliance

My proposed change to the Grant test bolsters subsection 24(2)'s ability to incentivize state compliance with the Charter for three reasons. First, Crown offices handling cases that would benefit from non-repetition evidence have clear incentives to advise their ministry heads that effective reform measures will increase their chances of admitting evidence for prosecution. These incentives will be strengthened when non-repetition is formally and explicitly incorporated under the Grant test, sending a clear message to provincial and federal ministries that reform measures (and lack thereof) are relevant under subsection 24(2). (232) Crucially, instead of having to suggest a generic laundry list of reforms to improve Charter compliance, Crown offices will be able to recommend specific improvements to specific departments (233)--a more targeted, and likely more effective, form of advocacy. (234) This internal pressure could be particularly effective in generating "feedback and reform loops" (235) to address non-compliance with the Charter, given the significant volume of cases involving subsection 24(2) applications. (236)

Second, GNRs will often be conspicuous in their absence once non-repetition is formally and explicitly recognized as a principle informing subsection 24(2) analysis. Acquittals resulting from the Crowns failure to tender non-repetition evidence could therefore bolster external, public pressure on local police departments, prosecutors' offices, and their governing ministries. Third, my proposed approach assists independent civilian-controlled departments (e.g. Ontario's Special Investigations Unit and Office of the Independent Police Review Director) in their efforts to promote police accountability. These efforts can be stymied by a lack of ministerial support. (237) By attaching a tangible benefit to state reform measures (and a cost for failing to act), a non-repetition approach provides these civilian bodies with leverage in their attempts to secure co-operation from ministries and police forces.

These mechanisms could significantly strengthen proactive protection for Charter rights. Once appropriate and effective reform measures are instituted, they enhance protection for the Charter rights of all individuals, including those who never appear before a court. They could particularly benefit members of minority communities, who continue to be disproportionately subject to unconstitutional treatment by police agencies. (238)

However, non-repetition is not a panacea for all unconstitutional state action. GNRs will not always be offered--subsection 24(2) applications, after all, are litigated far more frequently than disputes between states under international law. Extensive reform initiatives are not always a logical state response to the prospect of losing evidence for individual prosecutions. Policy reform and additional training will not prevent all Charter breaches. (239) Improving Charter compliance and accountability within police departments is a complex task, calling for significant legislative and judicial reforms beyond modifying the Grant test. (240)

That said, my proposed approach is still an important step in the right direction. (241) While it is unrealistic to expect non-repetition evidence to be routinely tendered on all subsection 24(2) applications, explicitly incorporated non-repetition into the Grant test at the very least generates incentives for reform proposals in higher-profile cases that garner public attention and/or involve serious offences. (242) Moreover, even if government ministries do not commit to wide-scale reform measures, a non-repetition approach can spur more basic improvements. Police departments could be encouraged--of their own accord, or through pressure from provincial/federal ministries--to regularly discipline individual officers responsible for Charter breaches. Administrative measures of this sort are generally considered effective at improving Charter compliance. (243) My approach also promotes greater transparency in policing. Judicial decisions will more frequently feature discussions of police practices, training, and internal disciplinary processes. The Crown will be tactically required to more frequently tender evidence regarding these issues on subsection 24(2) applications, which could promote public awareness. (244)

Doctrinal Clarity

Non-repetition also improves clarity within the SCC's subsection 24(2) jurisprudence. It explains the SCC's heightened concern for systemic police abuses--the continued existence of an illegal institutional practice increases the risk of future non-compliance with the Charter. Non-repetition also provides a firm basis to weigh the seriousness of an offence under the Grant test, a persistent source of doctrinal uncertainty. This confusion stems from three conflicting valid propositions. On one hand, society clearly has a heightened interest in adjudicating more serious crimes on their merits. However, routinely admitting such evidence could incentivize unconstitutional police conduct when investigating serious crimes. The public also has "a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high". (245) Grant lays out the contours of this dilemma, (246) but provides little guidance on how to resolve it, apart from stating that the seriousness of an offence "has the potential to cut both ways". (247)

Unsurprisingly, the Court subsequently split in Saeed over how to weigh the seriousness of an offence under subsection 24(2). In her concurring reasons, Justice Karakatsanis placed weight on the seriousness of the alleged offence within her subsection 24(2) analysis, noting that the aggravated sexual assault of a young girl was a "particularly heinous" crime. (248) Justice Abella, by contrast, emphasized that the seriousness of the alleged offence was a "neutral factor" (249) with only a "limited role" (250) to play under subsection 24(2). The Court divided on this issue again in Paterson. (251)

Non-repetition provides an effective solution to this dilemma. The seriousness of an offence should not influence subsection 24(2) analyses unless the state has tendered convincing non-repetition evidence. In such circumstances, the seriousness of an offence should be considered under Grant's third branch. After all, it is more defensible to weigh the seriousness of an offence in an individual case when a court is confident that future suspects of serious crimes will have their Charter rights upheld. Effective non-repetition measures therefore allow courts to place weight on the seriousness of an offence without compromising the justice system's long-term repute.

My proposed approach also promotes doctrinal consistency between subsection 24(2) and subsection 24(1). The "seriousness of an offence" is relevant to subsection 24(1) applications for stays of proceedings and exclusion of evidence. (252) Multiple judges have also recognized that state reform measures undertaken after a Charter breach are relevant to assessing stays of proceedings under subsection 24(1). (253) As exclusion of evidence will often amount to a de facto stay where the evidence is central to the Crown's case, (254) doctrinal consistency between the two remedies is both logical and desirable.

Resolving Penumbral Cases

Finally, non-repetition provides a firmer basis to resolve penumbral cases than "public confidence". In her Grant concurrence, Justice Deschamps stressed the need for "concrete and objective factors" to guide subsection 24(2) analyses. (255) Non-repetition fits that description. Evaluating non-repetition evidence is, admittedly, not an exact science. The exercise nonetheless calls for more objective determinations than gauging the impact of exclusion on public confidence. Non-repetition requires judges to determine fact-driven issues--the credibility, proportionality, and effectiveness of real policy proposals--instead of basing their decisions entirely on the possible perceptions of a hypothetical reasonable community member. To be clear, judges are perfectly capable of conducting the latter inquiry. In cases where it proves inconclusive, however, the more tangible factors associated with non-repetition analysis should prove helpful. As I argue above, these factors also provide a firmer and fairer basis for judges to resolve cases involving allegations of systemic state conduct.

CONCLUSION

Subsection 24(2) instructs courts to exclude evidence where its admission would bring the administration of justice into disrepute. The SCC has interpreted "disrepute" through the lens of vindication and dissociation theory. This approach should be broadened. Incorporating the international law principle of non-repetition into subsection 24(2) analyses allows for broader protections against "disrepute" to the administration of justice. Non-repetition weighs against exclusion of evidence in close cases where the police have already taken steps to restore public confidence in the administration of justice. As Justice Goldstein recently noted, to ignore such measures is to engage in "judicial ostrich-like behavior". (256) Non-repetition weighs against admission of evidence in some cases where the police are unable to assure courts that Charter breaches will not be repeated. These guiding principles are consistent with subsection 24(2)'s wording and purpose. They will assist judges in resolving close cases and clarify areas of uncertainty within subsection 24(2) jurisprudence. They could also promote ex ante state compliance with the Charter, a particularly important result for individuals subject to unconstitutional treatment that never receives judicial attention. Subsection 24(2) can and should embrace these practical benefits. Non-repetition provides a way to do so while strengthening the Grant test's commitment to principle.

VEENU GOSWAMI ([dagger])

([dagger]) JD (University of Toronto). I would like to thank Professor Kent Roach and John Norris (as he then was) for their very helpful comments and feedback during my work on this article.

(1) R v Grant, 2009 SCC 32 at para 196, [2009] 2 SCR 353, Deschamps J, dissenting [Grant], citing David M Paciocco, "The Judicial Repeal of s. 24(2) and the Development of the Canadian Exclusionary Rule" (1990) 32:3 Crim LQ 326 at 334 [Paciocco, "Judicial Repeal"].

(2) People v Defore, 243 NY 13 at 21 (NY Ct App 1926).

(3) Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 24(2) [Charter].

(4) Supra note 1.

(5) Ibid at para 73.

(6) See ibid.

(7) Ibid at para 211.I provide additional reasons why rejecting a deterrence rationale is appropriate in Part D, "(2) An Increased Role for Deterrence", below.

(8) See Steven Penney, "Taking Deterrence Seriously: Excluding Unconstitutionally Obtained Evidence under s.24(2)" (2004) 49:1 McGill LJ 105 at 107-08, 133-35; Diana Lumba, "Deterring Racial Profiling: Can Section 24(2) of the Charter Realize Its Potential ?" (2006) 22 Windsor Rev L & Social Issues 79 at 85-87; Michael A Johnston, "Why Did the Fat Lady Singh? A Case Comment on R v Grant'', Case Comment, (2010) 56 Crim LQ 437 at 456-57.

(9) See Don Stuart, "Canadian and United States Supreme Courts Rowing in Opposite Ditections on Exclusion of Unconstitutionally Obtained Evidence" (2010) 70 Crim Reports 62 at 62 [Stuart, "Canadian and United States Supteme Courts"]; David M Paciocco, "Section 24(2): Lottety or Law--The Appreciable Limits of Purposive Reasoning" 58:1 Crim LQ 15 at 49-51 [Paciocco, "Lottery or Law"]; Johnston, supra note 8 at 456-57; Grant, supra note 1 at paras 210-12, Deschamps J, dissenting.

(10) See Paciocco, "Lottery or Law", supra note 9 at 48; Akash Toprani, "A Tale of Two Section Twenty-Fours: Towards A Comprehensive Approach for Charter Remedies" (2012) 70 UT Fac L Rev 141 at 147-48.

(11) Alongside the existing goal of "preserving] public confidence in the rule of law and its processes": Grant, supra note 1 at para 73.

(12) In this context, the term "state" encompasses both police departments and provincial/federal ministries. Reforms/disciplinary measures by both actors would be relevant to subsection 24(2) under my proposed approach.

(13) I outline these circumstances in section E(2)(i): "How Will Non-Repetition Fit Within Subsection 24(2)?".

(14) And vice versa--the absence of such commitments will sometimes favour exclusion.

(15) For example, continuing uncertainty over how to weigh the seriousness of offence under the Grant test. See Section E(2)(ii): "Why Adopt Non-Repetition?", below.

(16) See e.g. Jotdan Hauschildt, "Blind Faith: The Supreme Court of Canada, s.24(2) and the Presumption of Good Faith Police Conduct" (2010) 56:4 Crim LQ 469; Ariane Asselin, "The Exclusionary Rule in Canada: Trends and Future Directions" (LLM Thesis, Queen's Univetsity, 2013) [unpublished] (both criticizing the Grant test's approach to good faith police conduct). See also Jonathan Dawe & Heather McArthur, "Charter Detention and Exclusion of Evidence after Grant, Harrison and Suberu" (2010) 56:4 Crim LQ 376 (criticizing the Court's failure to reconcile its new approach to conscriptive evidence with section 7 self-incrimination jurisprudence, and the possible future impacts of Grant on admission of guns and breathalyzer evidence).

(17) See Paciocco, "Lottery or Law", supra note 9 at 20; Kent Roach, Constitutional Remedies in Canada (Aurora: Canada Law Book, 1994) at 2-7; Mike Madden, "A Model Rule For Excluding Improperly or Unconstitutionally Obtained Evidence" (2015) 33:2 BJIL 442 at 446-57 [Madden, "A Model Rule"]; Penney, supra note 8 at 110; Lumba, supra note 8 at 81-83; Law Refotm Commission of Canada & Law of Evidence Project, Evidence: The Exclusion of Illegally Obtained Evidence (Ottawa: Department of Justice Canada, 1974) Study Paper at 19-24 ["Department of Justice Papet"]; Debra Osborn, "Suppressing the Truth: Judicial Exclusion of Illegally Obtained Evidence in the United States, Canada, England and Australia" (2000) 7:4 UEJL at paras 45-54 [Osborn, "Suppressing the Truth"].

(18) See Roach, supra note 17 at 4-6; Madden, "A Model Rule", supra note 17 at 446-47.I list further sources outlining the empirical weaknesses with the deterrence rationale at notes 108, 110, and 111, infra.

(19) As judges could draw conclusions on these issues based on the Crowns willingness (or lack thereof) to tender evidence regarding reform initiatives and commitments.

(20) For further discussion of the distinction between deterrence and non-repetition, see the text accompanying notes 208-215, below.

(21) I agree with Professor Steven Penney that if deterrence was recognized as a basis for excluding evidence under subsection 24(2), it would have to be the sole reason for doing so. See Penney, supra note 8 at 107-08, 134-37. For further discussion of this point, see the text accompanying note 212.

(22) See Madden, "A Model Rule", supra note 17 at 445.

(23) The wording for these rationales is drawn from Paciocco, "Lottety or Law", supra note 9 at 20. The rationales themselves are present, in one form or another, in a variety of other sources (for example, the sources listed supra note 17).

(24) See Roach, supra note 17 at 2-3; Madden, "A Model Rule", supra note 17 at 453; Penney, supra note 8 at 110.

(25) Paciocco, "Lottery or Law", supra note 9 at 21.

(26) See Roach, supra note 17 at 2.

(27) See Paciocco, "Lottery or Law", supra note 9 at 22-23. Professor (now Justice) Paciocco considers the "trial fairness" rationale separately from compensation. I consider it one example of the type of harm an accused might suffer through admission of evidence and Zhave, therefore, classified it with "compensation". Both fall within "corrective" rationales, as the term is defined in Roach, supra note 17 at 2, 4.

(28) 2010 SCC 27, [2010] 2 SCR 28 [Ward].

(29) Ibid at para 28 [emphasis added].

(30) Ibid.

(31) See ibid. Sec also Paciocco, "Lottery or Law", supra note 9 at 23; Madden, supra note 17 at 454-55.

(32) Silverthorne Lumber Co Inc v United States, 251 US 385 (1920) at 392.

(33) See Paciocco, "Lottery or Law", supra note 9 at 24; Madden, supra note 17 at 449-50; Penna, supra note 8 at 110.

(34) See Paciocco, "Lottery or Law", supra note 9 at 24.

(35) Leon, supra note 39 at 933, Brennan J, dissenting.

(36) Olmstead v United States, 277 US 438 (1928) at 484, Brandies J, dissenting. See also Herring v United States, 555 US 135 (2009) at 148-57, Ginsburg J, dissenting [Herring].

(37) Ward, supra note 29 at para 29. See also Roach, supra note 17 at paras 4-6; Madden, "A Model Rule", supra note 17 at 447-49; Penney, supra note 8 at 110-11.

(38) Mapp v Ohio, 367 US 643 (1961) at 656, citing Elkins v United States, 364 US 206 (1960).

(39) See ibid. See also Rakas v Illinois, 439 US 128 (1978); United States v Leon 468 US 897 (1984) [Leon]; US v Murray, 487 US 533 (1988).

(40) Roach, supra note 17 at 4.

(41) See Paciocco, "Lottery or Law", supra note 9 at 25, citing R v 974649 Ontario Inc, 2001 SCC 81, [2001] 3 SCR 575.

(42) See Ward, supra note 29 at paras 4, 29.

(43) R v Askov, [1990] 2 SCR 1199 at paras 1219-20, 74 DLR (4th) 355. See also Herring, supra note 36 at 141; Hudson v Michigan, 547 US 586 at 595.

(44) See e.g. Grant, supra note 1 at para 140; R v Shaheed, [2002] 2 NZLR 377, [2002] 19 CRNZ 166 (CA); Police and Criminal Investigation Act 1984 (UK), c 60, s 78 (requiring judges to consider "all the circumstances, including the circumstances in which the evidence was obtained" to determine admission of evidence). Similar discretion is conferred under French and German law. See Yue Ma, "The American Exclusionary Rule: Is There a Lesson to Learn from Othets?" (2012) 22:3 Intl Criminal Justice Rev 309 at 315-17. See also Stephen C Thaman, "Constitutional Rights in the Balance: Modern Exclusionary Rules and the Toleration of Police Lawlessness in the Search for Truth" (2011) 61:4 UTLJ 691 at 717-33. Some commentators have noted that proportionality analysis is playing a greater role under the American exclusionary rule. See K Dawn Milan, "The Shifting Sands of Deterrence Theory and the Sixth Circuit's Trouble with Suppression in United States v. Fofana" (2014) 92:4 North Carolina LR 1426 at 1426-67.

(45) Rv Collins, [1987] 1 SCR 265 at para 35, 38 DLR (4th) 508 [Collins].

(46) See ibid at paras 36-39. For further detail regarding pre-Grant 24(2) jurisprudence, see Hamish Stewart, "Section 24(2): Before and After Grant" 15 Can Crim L Rev 253 at 25-57; Dawe & McArthur, supra note 16 at 402-07.

(47) Assuming, as I did earlier, that compensation encompasses the "trial fairness" rationale.

(48) Collins, supra note 45 at 281 [emphasis added].

(49) See Grant, supra note 1 at para 85.

(50) Ibid at paras 68-69.

(51) Ibid at para 73.

(52) Supra note 1 at para 72 [emphasis added].

(53) Ibid at para 76. The majority also maintained Collins' balancing approach by recognizing the continued relevance of society's "interest in an adjudication on the merits": at para 205.

(54) See ibid at pat as 210-13, Deschamps J, dissenting, where the logic behind rejecting the deterrence rationale is more thoroughly addressed.

(55) Ibid at paras 70, 73. The Court also re-characterized "trial fairness" as an "overarching systemic goal" rather than a "distinct stage of the s. 24(2) analysis": at pata 65.

(56) R v Stillman, [1997] 1 SCR 607, [1997] SCJ No 34 [Stillman]. See Grant, supra note 1 at para 101. See also Don Stuart, "The Charter Balance Against Unscrupulous Law and Order Politics" (2012) 57 SCLR (2d) at 27 [Stuart, "The Charter Balance"]; Paciocco, "Judicial Repeal", supra note 1 at 364-65; Stewart, supra note46 at 256-57; Hauschildt, supra note 16 at 469-70; Richard Mahoney, "Problems with the Current Approach to of the Charter: An Inevitable Discovery" (1999), 42 Crim LQ443.

(57) See Don Stuart, "Welcome Flexibility and Better Criteria from the Supreme Court of Canada for Exclusion of Evidence Obtained in Violation of the Canadian Charter of Rights and Freedoms" (2010) 16 SWJ Intl L 313; Paciocco, "Lottery or Law", supra note 9 at 61-65. As I explain below, however, some points remain uncertain--for example, how the seriousness of an offence factors into the subsection 24(2) balancing exercise.

(58) For example, a proposal to reform subsection 24(2) to focus only on the reliability of evidence with a view to maximizing convictions would be inconsistent with the text of subsection 24(2) (which requires a consideration of "all the circumstances"). In any event, the "maximizing convictions" rationale is also arguably an inappropriate basis for an exclusionary rule.

(59) Supra note 1 at para 75. See also Kelsey L Sitat, "Gladue as a Sword: Incorporating Critical Race Perspectives into the Canadian Criminal Trial" (2016) 20:3 Can Crim L Rev 247 at 261.

(60) Supra note 3, s 8.

(61) Hunter et al v Southam Inc, [1984] 2 SCR, 11 DLR (4th) 641 [Hunter v Southam].

(61) Ibid at 160 [emphasis in original].

(63) Charter, supra note 3, s 24( 1).

(64) See Ward, supra note 29 at paras 4, 29.

(65) The SCC has commented favourably on promoting coherence between Charter rights and remedies.See R v S(RJ), [1995] 1 SCR 451 at 561, 121 DLR (4th) 589 [S(RJ)] (in the section 7 self-incrimination context); Dawe & McArthur, supra note 16 at 408-09.

(66) S(RJ), supra note 65 at 561.

(67) Ibid.

(68) See Grant, supra note 1 at para 73.

(69) Supra note 8 at 456.

(70) See ibid at 456-58; Penney, supra note 8 at 107-08, 133-35; Sitar, supra note 59 at 260-62; Lumba, supra note 8 at 91-104. See especially Lumba, supra note 8 at 92-93.

(71) As it may indirectly incentivize Charter compliance by considering "patterns" of police abuse an aggravating factor when assessing the seriousness of a Charter breach.

(72) For further discussion of this point, see section E(2)(ii): "Why Adopt Non-Repetition?", below. In short, my proposed approach provides institutional actors (e.g. a provincial Ministry of the Attorney General) with a clearer signal that reforms addressing the cause of a Charter breach will be considered relevant under subsection 24(2). Further, non-repetition also provides governments and police departments with specific incentives on which actions (e.g. disciplininga particular set of officers, increasing training for a particular police department) are necessary to address the Charter breach in a specific case. Grant, by contrast, suggests that state actors should limit "patterns" of police abuses--considerably more generic guidance. Finally, even if Grant produces indirect incentives for reform, those incentives are limited to reforms addressing clear cut "patterns" of abuses and are unlikely to encourage disciplinary action against officers who breach the Charter for reasons unrelated to systemic issues.

(73) See e.g. Ontario, The Honourable Michael Tulloch, Report of the Independent Police Oversight Review (Toronto: Queens Printer, 2017) at ch 5-6 [Tulloch, Report]; Kent Roach & Lorne Sossin, "Renovating Independent Police Review" (2017) 64 Crim LQ 384 at 388-89, 393, 400; Hauschildt, supra note 16 at 502-22; Nathalie des Rosiers & Graeme Norton, "Civilian Oversight and the 2010 G20 Summit in Torpnto" in Ian D Scott, ed, Issues in Civilian Oversight of Policing in Canada (Toronto: Thomson Reuters, 2014) 111 at 133; Andre Marin, "Oversight Unseen: Investigations into the Special Investigations Unit's Operational Effectiveness & Credibility" (2008, Ombudsman's Report) [Marin, "Report"]; Andre Marin, "Oversight Undermined: Investigation into the Ministry of Attorney General's Implementation of Recommendations Concerning Reform of the Special Investigations Unit" (2011, Ombudsman's Report); Stuart, "Canadian and United States Supreme Courts", supra note 9 at 64; David Tanovich, "The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System" (2008) 40:1 SCLR (2d) at 658-62.

(74) Exclusion of evidence would remain only one of many mechanisms under the common law, provincial and federal legislation, and the Charter to improve state compliance with the Charter--personal complaints/civil suits against police officers and Charter damages under subsection 24(1) are some other examples. See Tanovich, supra note 73 at 662. Professor Stuart discusses shortcomings with these alternative remedies in "The Charter Balance", supra note 56 at 28.

(75) Roach & Sossin, supra note 73 at 4.

(76) Don Stuart, Charter Justice in Canadian Criminal Law, 4th ed (Toronto: Thomson Carswell, 2005) at 543-44; Stuatt, "Canadian and American Supreme Courts", supra note 9 at 62.

(77) Grant, supra note 1 at para 75; R v Harrison, 2009 SCC 34 at paras 16, 25, [2009] 2 SCR 494.

(78) See Paciocco, "Lottery or Law", supra note 9 at 50-51.

(79) See ibid at 55-56.

(80) Stewart, supra note 46 at 261-62.

(81) Ibid at 262.

(82) See Paciocco, "Lottery or Law", supra note 9 at 52-54 (summarizing the pre-Grant and international jurisprudence on the role of the seriousness of an offence). For cases considering the seriousness of an offence under subsection 24(1), see R v Bjelland, 2009 SCC 38 at pata 27, [2009] 2 SCR 651 [Bjelland] (exclusion of evidence); R v Regan, 2002 SCC 12 at paras 115-16, 123, [2002] 1 SCR 297; R v Babos, 2014 SCC 16at para 41, [2014] 1 SCR 309 (stays of proceeding--often the functional outcome of exclusion under subsection 24(2)).

(83) R v Saeed, 2016 SCC 24 at paras 128, 155-58, [2016] 1 SCR 518 [Saeed].

(84) R v Paterson, 2017 SCC 15 at paras 55-56, 94, [2017] 1 SCR 202[Paterson].

(85) Paciocco, "Lottery or Law", supra note 9 at 48. See also Toprani, supra note 10 at 147-48.

(86) Grant, supra note 1 at para 140.

(87) Ibid at para 68.

(88) Contrast the comments regarding public attitudes to exclusion of evidence in Penney, supra note 8 at 111 and Toprani, supra note 10 at 147, with the high post-Grant exclusion rate identified in Mike Madden, "Marshalling the Data: An Empirical Analysis of Canada's s. 24(2) Case Law in the Wake of R v. Grant" (2011) 15:2 Can Crim L Rev 229 at 237-38 [Madden, "Marshalling the Data"]. I raise this point only to highlight the subjective, artificial nature of the subsection 24(2) analysis. I do not support a subsection 24(2) test based around public opinion polls, for the reasons Lamer J provides in Collins, supra note 45 at para 32.

(89) Collins, supra note 45 at para 34.

(90) As any outcome the judge arrives at will be defensible. That said, purely objective decision making is impossible under subsection 24(2)--my claim is simply that greater use of objective criteria would be helpful.

(91) Grant, supra note 1 at para 208, Deschamps J, dissenting.

(92) Admittedly, Grant provides a series of specific factors courts can refer to in their analysis. A purely vindication/disassociation-focused approach, however, requires judges to only consider how a hypothetical reasonable member of the public would view and balance those factors--an attificial exercise introducing greater risk of subjectivity.

(83) Supra note 1 at para 70.

(94) See Dawe & McArthur, supra note 16 at 434-36; Johnston, supra note 8 at 446, 450, 458, 464-65; Matthew Pearn, "Section 24(2): Does the Truth Cost Too Much?" (2011) 62 UNBLJ 147 at 149-51, 167-68 (arguing for an increased role for the "trial fairness" rationale within the Grant framework to provide meaningful remedies for rights violations). Irish courts have formally recognized a compensatory rationale (rights-protection) as a purpose underpinning exclusion of evidence. See Yvonne Marie Daly, "Judicial Oversight of Policing: Investigations, Evidence and the Exclusionary Rule" 55 Crime L & Soc Change 199 at 205-08

(95) While beyond the scope of this article, I do not necessarily support considering the "impact on the accused" as a distinct branch of the Grant test. A Charter breach that seriously impacts an accused person should certainly aggravate the seriousness of the state's Charter infringing conduct--an outcome consistent with the vindication/dissociation rationale. However, it is unclear why the absence of a significant impact should favour inclusion. Even if an accused person is not significantly impacted by a blatant Charter violation in one specific case, failure to dissociate the justice system from that conduct displays a lack of concern for its potentially damaging long-term consequences. That said, for my present purposes, it is sufficient to say that we should reject reform proposals based on giving compensation greater emphasis than it already indirectly enjoys under Grant.

(96) For example, by eliminating or significantly restricting the role of the police's "good faith" in assessing the seriousness of a constitutional violation, on the grounds that the police's state of mind is irrelevant to compensating the accused for the breach of her rights. Another possible way to bolster the compensation rationale would be strengthening protections against admission of conscriptive evidence. See Johnston, supra 8 at 446, 450, 458, 464-65; Pearn, supra note 94 at 149-51, 167-68.

(97) See Penney, supra note 8 at 111-12; Akhil Reed Amar, "Fourth Amendment First Principles" (1994) 107:4 Harv L Rev757 at 797.

(98) Supra note 97 at 795.

(99) Ibid.

(100) As the state's unconstitutional conduct would have caused him greater "harm" (the twenty years in jail).

(101) Amar, supra note 97 at 797. See also Toprani, supra note 10 at 143.

(102) Of course, we may well be concerned that failure to properly compensate individuals will encourage the police to violate the rights of other individuals in the future. This concern, however, reflects a deterrence-based rationale for excluding evidence, and is not an argument for according compensation an increased role under subsection 24(2).

(103) See Roach, supra note 17 at 5; Madden, "A Model Rule", supra note 17 at 453-54.

(104) Madden, "A Model Rule", supra note 17 at 453-54.

(105) See e.g. Penney, supra note 8 at 107-08, 133-35; Lumba, supra note 8 at 85-87; Johnston, supra note 8 at 456-57.

(106) See Roach, supra note 17 at 4.

(167) See R v Burlingham, [1995] 2 SCR 206 at para 25, 124 DLR (4th) 7; R v Bubay, 2003 SCC 30 at para 70, [2003] 1 SCR 631.

(108) New Zealand Law Commission, Criminal Evidence: Police Questioning (Wellington: The Law Commission, September 1992) at 108--though the New Zealand Law Commission took a more moderate view on deterrence than many critics of the American exclusionary rule.

(109) Mapp v Ohio, 367 US 643 (1961). See Penney, supra note 8 at 115.

(110) See Department of Justice Paper, supra note 17 at 20; Timothy Perrin et al, "If It's Broken, Fix It: Moving Beyond the Exclusionary Rule: A New and Extensive Empirical Study of the Exclusionary Rule and a Call for a Civil Administrative Remedy to Partially Replace the Rule" (1998) 83 Iowa L Rev 669 at 676; Dallin Oaks, "Studying the Exclusionary Rule in Search and Seizure" (1970) 37 U Chicago L Rev 665 at 730-31. Deschamps J cites these sources, among others, in her dissenting reasons in Grant, supra note 1 at paras 210-11.

(111) See Roach, supra note 17 at 5-6.

(112) See ibid.

(113) Ibid.

(114) See Paciocco, "Judicial Repeal" supra note 1 at 340. Consequently, exclusionary rules notionally based on all four remedial rationales identified in this article (e.g. Madden, "A Model Rule", supra note 17) ate, in reality, downplaying the importance of deterrence as they would rarely generate sufficient ex ante certainty to consistently influence the behavior of officers in the field.

(115) Penney, supra note 8 at 110.

(116) See Mark E Cammack, "The United States: The Rise and Fall of the Constitutional Exclusionary Rule in the United States" (2010) 50 Am J Comp L 631 at 658.

(117) Supra note 39 at 943.

(118) See Penney, supra note 8 at 143-44.

(119) Public international law addresses relations between states. International human rights law addresses relations between states and individuals.

(120) See Diana Guanizo-Peralta, Guarantees of Non-Repetition and the Right to Health: Review of the Law and Evolving Practice of Judicial and Semi-Judicial Bodies at Global and Regional Levels (PhD Thesis, University of Essex Department of Law, 2016) [unpublished] at 34.

(121) International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, UNGAOR, 53rd Sess, Supp No 10, UN Doc A/56/10 (2001) 31 at 96 [International Law Commission, Draft Articles].

(122) See Guanizo-Peralta, supra note 120 at 34.

(123) International Law Commission, Draft Articles, supra note 121 at 106.

(124) See Sandrine Barbier, "Assurances and Guarantees of Non-Repetition" in James Crawford, Alain Pellet & Simon Olleson, eds, The Law of International Responsibility (New York: Oxford University Press, 2010) 551 at 551.

(125) See ibid.

(126) See Tullio Scovazzi, "Some Remarks on International Responsibility in the Field of Environmental Protection" in Maurizio Ragazzi, ed, International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden: Martinus Nijhoff Publishers, 2005) 209 at 212.

(127) See "Report of the Commission to the General Assembly on the Work of its Fifty-Second Session" (UN Doc A/55/10) in Yearbook of the International Law Commission 2000, vol 2, part 2 (New York: UN, 2000) at para 77 (UNDOC.A/CN.4/SER.A/2000/Add.1); Barbier supra note 124 at 556; Julio Barboza, "Legal Injury: The Tip of the Iceberg in the Law of State Responsibility" in Ragazzi, supra note 126 at 16.

(128) Barbier, supra note 124 at 561.

(129) Guanizo-Peralta, supra note 120 at 75.

(130) See ibid at 54. GNRs taking the form of examples (b), (c), and (d) are rare in public international law, but are more frequently awarded in the IHRL context (see ibida at 56, 82-93, 180-93).

(131) Case Concerning Avena and Other Mexican Nationals (Mexico v United States of America), [2004] ICJ Rep 12 [Avena].

(132) Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967).

(113) See ibid at para 12.

(134) See ibid at paras 148-49.

(135) See ibid at para 150.

(136) LaGrand Case (Germany v United States of America), [2001] ICJ Rep 466 [LaGrand].

(137) Ibid at para 120.

(138) See ibid at pata 121. Despite enacting these reforms, the United States was found in violation of the Vienna Convention a few years later in Avena, supra note 131. A strong argument could be made that the ICJ should have ordered stronger measures of non-repetition in the latter case, given that the United States was a repeat violator of the same international treaty.

(139) Ibid at para 126 [emphasis added].

(140) Barbier, supra note 124 at 557.

(141) See ibid at 559.

(142) See supra note 136 at para 123.

(143) International Law Commission, Draft Articles, supra note 121 at 88.

(144) United Nations General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res 60/147, UNGAOR, 60th Sess, Supp No 49, Un Doc A/RES/60/147 (2005) at 7-8 [Basic Guidelines].

(145) See Guaniz-Peralta, supra note 120 at 40, 82-93.

(146) See Avena, supra note 131; LaGrand, supra note 136; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, [2005] ICJ Rep 168 at para 257; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), [2002] ICJ Rep 303 at para 318 (a request for a GNR was submitted and deemed "undoubtedly admissible", but ultimately rejected). See also Barbier, supra note 124 at 554-55; Guaniz-Peralta, supra note 120 at 43-44. Requests for GNRs have been particularly successful before the Inter-American Court of Human Rights. See Thomas M Antkowiak, "Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond" (2008) 46:2 Colum J Transnat'l L 351 at 394-96.

(147) Barbier, supra note 124 at 555.

(148) Consistent with practice before international courts, where states often tender evidence of reform measures in response to a request for a GNR.

(149) Under my proposed approach, the Crown would bear the burden of establishing non-repetition, though the overall burden of justifying a remedy under subsection 24(2) would remain on the claimant.

(150) The Crown should not have to prove that the reforms eliminate any chance of future breaches--this standard would be too high, and has been explicitly rejected in international jurisprudence. See LaGrand, supra note 136 at para 124.

(151) See ibid at paras 123-25; Barbier, supra note 124 at 559.

(152) Charter, supra note 3, s10(b).

(153) R v Sauve, 2016 ONSC 3913 at para 113, 131 WCB (2d) 337 [Sauve].

(154) Indeed, they will almost always operate in the same way in practice. Effective non-repetition evidence that attenuates the seriousness of a breach will sometimes "tip" the balance of a case towards admission. Similar evidence considered at the final "balancing stage" of a close case will have the same effect.

(155) See e.g. R v Ohenhen, 2016 ONSC 5782, 133 WCB (2d) 224; R v Neyazi, 2014 ONSC 6838, 118 WCB (2d) 490 [Neyazi]; R v Daley, Benons, and Griffith, 2014 ONSC 1079, 112 WCB (2d) 224. See also Thaman, supra note 44 at 696, 698, 705 (commenting on limiting the "balancing" analysis in response to fundamental rights violations). Vindication and dissociation are particularly important complements to a non-repetition approach given the different perceptions minority communities often have of law enforcement, generally, and of reforms targeted at law enforcement institutions, specifically. See Roach & Sossin, supra note 73 at 386-88. For example, an Aboriginal Canadian and a Caucasian Canadian may appraise the likely effectiveness of state reform measures quite differently. Combining non-repetition with perception-based rationales addresses these issues. Judges will be required to consider both whether proposed reform measures will effectively address the causes of a Charter breach, and how the admission of the evidence would impact long-term perceptions of the administration of justice (factoring in, one would hope, the possible impact on public confidence among members of minority communities).

(156) 2010 ONSC 1952, [2010] OJ No 6056 [Peluso].

(157) See ibid at para 118.

(158) See ibid at paras 154-60 (though Justice O'Marra did not place the conduct at the most serious end of the "spectrum" identified in Grant).

(159) See ibid at paras 166-69.

(160) See ibid at paras 170-72.

(161) Ibid at para 142.

(162) Ibid at para 162 [emphasis added].

(163) 2016 ONSC 153, [2016] OJ No 172 [Palmer].

(164) See ibid at paras 100-01.

(165) Ibid at para 135.

(166) See ibid at para 138.

(167) See ibid at para 140.

(168) Ibid at para 99.

(169) See ibid at para 138.

(170) R v Jones, 2013 BCCA 345, [2013] BCJ No 1589 [Jones].

(171) See ibid. The daughter did not live with her mother.

(172) Ibid at para 16.

(173) Ibid at para 46.

(174) Ibid at paras 16, 47.

(175) For other decisions where non-repetition may have played a useful role, scc R v Mendez, 2014 ONSC 498, [2014] OJ No 317; R v O'Donnell, [2015] OJ No 2328, 121 WCB (2d) 542 (Ont Ct J); R v Sidhu, 2013 ONCA 719, 2013 OJ No 5382.

(176) That said, in cases where the initial policies themselves display egregious disregard for Charter rights--e.g. racial profiling under Neyazi, supra note 155--or are passed in bad faith (with knowledge of unreasonable ignorance that they would not be Carter-compliant), vindication and dissociation will strongly support exclusion even if the policies are subsequently abandoned.

(177) See e.g. Jones, supra note 171 at para 46; R v Thompson, 2010 ONSC 2862 at para 80, [2010] OJ No 2070 [Thompson].

(178) See e.g. R v Carbrera-Gonzalez, 2014 ONCJ 510 at paras 48-49, [2014] OJ No4678; R v Bulat, 2015 ONCJ 453 at paras 55-56, 59-60, [2015] OJ No 4382.

(179) See e.g. R v Singh, 2015 ONCJ 643 at para 50, [2015] OJ No 5922 [Singh, 2015]; R v Ahmad, 2015 ONCJ 620 at paras 29-30, [2015] OJ No 5727 (both demonstrating repeat problems within the Peel Regional Police Service in respecting paragraph 10(b) obligations).

(180) Critically, it is the judge, and not the accused person, who determines when she would find non-repetition evidence from the Crown helpful. This approach helps limit the risk of fishing expeditions.

(181) In cases where the Crown does not tender satisfactory non-repetition evidence of its own accord but where a judge determines that such evidence unnecessary, non-repetition would play a neutral role on subsection 24(2) applications.

(182) Supra note 177.

(183) Ibid at para 7.

(184) See ibid at para 92.

(185) Ibid at para 80.

(186) Ibid.

(187) 2012 ABQB 630, [2012] AJ No 1425 [Villaroman].

(188) RSC 1885, c C-46, s 489.1.

(185) Ibid at para 131.

(190) Ibid at paras 131-32.

(191) Ibid at para 171 [emphasis added].

(192) 2010 ONCA 471, 103 OR (3d) 131.

(193) Ibid at para 102.

(194) R v Singh, 2013 ONCA 750, 118 OR (3d) 253 [Singh, 2013].

(195) Ibid at para 46.

(196) R v O'Connor, [1995] 4 SCR 411 at para 73, 130 DLR (4th) 235.

(197) For other cases where non-repetition may have favoured exclusion, see e.g. R v Garcia-Machado, 2015 ONCA 569, [2015] ORNo4146; R v Cable, 2010 ABPC 55, [2010] WCB (2d) 951; Singh, 2015, supra note 179.

(198) As Hauschildt, supra note 16 at 478-79, 495-500, notes, "good faith" for police officers is an amorphous standard that is sometimes equated with the absence of bad faith. This lower standard makes it easier for the Crown to downplay the seriousness of a constitutional violation. My approach arguably "evens the field" by making it easier for accused parties to establish evidence of systemic policing problems--a factor which amplifies the seriousness of a constitutional violation. I should note that empirical analysis of post-Grant jurisprudence suggests a high global exclusion rate, somewhat weakening the impact of Hauschildt's argument (see Madden, "Marshalling the Data", supra note 88). That said, his concern remains legitimate and is important to address within Grant.

(199) The only procedural difference pertains to the first prong of the four-part test (see the text accompanying note 150, above). Violating a previous GNR will make it difficult for the Crown to succeed on this branch of the test.

(200) For a discussion of the cases, see the text accompanying notes 156 (Peluso), 163, (Palmer) and 170 (Jones), above.

(201) Once again, Jones, supra note 171, is an apposite example--the police force could very reasonably have maintained the "clear the premises" policy, especially as the trial judge found that it did not infringe the Charter (ibid at para 16).

(202) Though this will not always be the Crown's most advantageous litigation option. See infra note 203.

(203) Hence, in cases involving clear Charter breaches, it may be more advantageous for the Crown to concentrate on admitting the evidence under subsection 24(2) and lobby the police department to take non-repetition measures prior to trial.

(204) 2011 ABQB 692 at paras 164-71, [2011] AJ No 1246.

(205) Supra note 177 at para 81.

(206) For example, Ontario courts have genet ally adopted strict positions against admitting evidence based on misleading ITOs filed by police officers, following the Court of Appeal's warning regarding the practice in R v Hosie, [1996] OJ No 2175, 31 WCB (2d) 251 (Ont CA). See Rv Sutherland, 52 OR (3d) 27, [2000] OJ 4704 (Ont CA) at paras 30-33; R v Herdsman, 2012 ONCJ 739 at paras 35, 76, [2012] OJ No 5598 (Ont Sup Ct) ("serious disregard of long-settled constitutional norms"); R v Bernard (2009), 86 WCB (2d) 70 at patas 65-67, 2009 CanLII 70129 (Ont Sup Ct).

(207) Another protection against "sham" reforms is Crown counsels' incentive to avoid damaging their personal credibility in front of their local judiciary. Advancing false reform proposals would also violate Crown counsels' ethical obligation not to mislead a court. See e.g. Law Society of Upper Canada, Rules of Professional Conduct, Toronto: LSUC, 2017, s 5-1-2(e).

(208) See Roach, supra note 17 at 4-6; Madden, "A Model Rule", supra note 17 at 446-47; Penney, supra note 8 at 124.

(209) See New Zealand Law Commission, supra note 108;; Roach, supra note 17; and the sources cited supra note 110.

(210) See Penney, supra note 8 at 117-18, 123, 138.

(211) As such information would have to be tendered by the Crown on a subsection 24(2) application to have any relevance to a court's analysis.

(212) Supra note 8 at 107-08, 134-37 ("Like many other ex post facto, 'all of the circumstances' inquiries, the balancing approach fails to give police the ex ante certainty necessary for optimal deterrence.... Optimal deterrence is much mote likely to be achieved by a bright-line rule that makes it cleat to police that violations will almost always result in exclusion": at 134-35).

(213) This is not to say that deterrence theories do not also seek to influence institutional conduct--metely that regulating individual officers' conduct is a vital component of most deterrence-based exclusionary rules (see the focus on individual field officers in Penney, supra note 8 at 134-36). Further, as I argue below, my proposed approach provides institution heads with very specific incentives on what sorts of reforms are needed in specific cases. Deterrence theories, by contrast, may simply provide institution heads with a general warning that Charter compliance is beneficial under a subsection 24(2) analysis--a less potent way to motivate change.

(214) See supra note 212.

(215) Fot an outline of the problems with this approach, seesupra notes 209-213. The problem regarding subsection 24(2)'s guidance to consider "all the circumstances" is particularly acute for a proposal to reorient the Canadian exclusionary rule solely around deterrence.

(216) Supra note 45 at para 31.

(217) Supra note 1 at paras 72, 76.

(218) Charter, supra note 3, s 24(2).

(219) See Paciocco, "Lottery or Law", supra note 9 at 32 (describing subsection 24(2)'s wording as "malleable"); Toprani, supra note 10 at 146.

(220) See especially Royal Canadian Mounted Police Act, RSC, 1985, c R-10, s 37(b): "[i]t is the responsibility of every member... to maintain the integrity of the law, law enforcement and the administration of justice" [emphasis added]. See also Royal Canadian Mounted Police Act, supra note 220, ss 20(l)-(2).

(221) See the provisions allowing the assignment of investigations to the RCMP if they ate deemed to be in the interests of the "administration of justice": Manitoba's The Police Services Act, SM 2009, c 32, s 20; New Brunswick's Police Act, SNB, 1977, c P-9.2, s 2(1); Saskatchewan's The Police Act, 1990, SS 1990-91, c P-15.01, ss 21(1), 22(1), 22.1(1), 24(1). See also Ontario's Police Services Act, RSO 1990, c P 15, s 41 (allowing disclosure of personal information by police departments if it is in the interests of the administration of justice); Alberta's Police Act RSA 2000, c P-17, s 2(1) (requiring police services and peace officers to act under the direction of the Minister of Justice and Solicitor General "in respect of matters concerning the administration of justice").

(222) Subsection 92(14) of the Constitution Act, 1867 gives provincial governments jurisdiction over the "administration of justice" in the province: Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5. This phrase has been interpreted to include "the [provincial] court system, the police, criminal investigation and prosecutions, and corrections": Di Iorio v Warden of the Montreal Jail, [1978] 1 SCR 152 at 205, 73 DLR (3d) 491.

(223) See e.g. Daniel C Santoro, "The Unprincipled Use of Originalism and Section 24(2) of the Charter" (2007) 45:1 Alta L Rev 1 at 26-30 ("[i]t cannot be legitimately argued that s.24(2) was the expression of any single intention"); Johnston, supra note 8 at 457; Jonathan H Bilton & Phillip C Stenning, "Extra-Jurisdictional Authority of Provincially Appointed Police Officers in Canada" (2001, Discussion paper prepared under contract for the Uniform Law Conference of Canada, June 2001) at para 38 (investigation and enforcement of crimes legitimately falls within the "administration of justice" within a province).

(224) Supra note 1 at para 67 [emphasis added].

(225) See supra notes 127-129.

(226) See especially Tulloch, Report, supra note 73, "Executive Summary" at para 6, ch 7, para 153. See Roach & Sossin, supra note 73 at 4, 12-13, 25; Lisa Marie Inman, "Civilian Review of Police Conduct in the Federal System" in Ian Scott, ed, Issues in Civilian Oversight of Policing in Canada (Toronto: Thomson Reuters, 2014) 41 at 55; Kevin Kunetski & Kelsi Barkway, "Independence in Civilian-Led Investigations of the Police" in Scott, supra note 226 at 165. See also the SCC's comments on this point in Wood v Schaeffer, 2013 SCC 71 at para 48, [2013] 3 SCR 1053.

(227) Supra note 73 at 133.

(228) Grant, supra note 1 at para 68.

(229) Because--assuming the reforms are judged to be credible, proportional and effective--the practices can be expected to disappear or considerably decline in the "long term". See ibid.

(230) Paciocco, "Lottery or Law", supra note 9 at 51 [emphasis added]. A similat point is raised in R v Duguay, [1989] 1 SCR 93 at 123, 56 DLR (4th) 46, L'Heureux-Dube, dissenting.

(231) Grant, supra note 1 at para 70.

(232) And certainly, a mote effective message than the status quo, as subsection 24(2) jurisprudence presently provides little guidance on this issue (besides the unencouraging statement that subsection 24(2) does not aim to deter Charter breaches).

(233) As they will already have knowledge regarding the charter-infringing courses of conduct they need to address.

(234) See Lumba, supra note 8 at 93-95 (noting that police reforms are more likely when connected to specific, identifiable problems). The (admittedly sparse) empirical literature on Canadian police departments/ministries and Charter compliance suggests that state institutions (as opposed to individual officers in the field) respond to clear, specific incentives to avoid infringing the Charter. See e.g. Kathryn Moore, "Police Implementation of Supreme Court of Canada Charter Decisions: An Empirical Study" (1992) 30:3 Osgoode Hall LJ 547 at 563-67 (detailing the Ontario Ministry of the Attorney General's response to the SCC's decision in R v Brydges, [1990] 1 SCR 190, [1990] SCJ No 8 [Brydges]); Lumba, supra note 8 at 90 (citing a study by Reginald A Devonshire describing the institutional response of the Metropolitan Toronto Police Force following Brydges and R v Manninen, [1987] 1 SCR 1233, [1987] SCJNo41). Crucially, judges under a non-repetition approach will be fully aware when these incentives are sufficient to spur reform (i.e. when the Crown does tenders reform proposals as non-repetition evidence) and can tailor their subsection 24(2) decisions accordingly.

(235) Roach & Sossin, supra note 73 at 4.

(236) Around 4,000 as of 2 August 2017 (QL).

(237) See e.g. Marin, Report, supra note 73 at paras 248-54, 265-67.

(238) See Sitar, supra note 59 at 261; Gabriella Jamieson, "Using Section 24(1) Charter Damages to Remedy Racial Discrimination in the Criminal Justice System" (2017) 22 Appeal 71 at 73-75; Roach & Sossin, supra note 73 at 3-4.

(239) Of course, the test (see text accompanying supra note 150), requires judges to assess whether the Crown's proffered non-repetition evidence actually is a rational and proportional response to a Charter breach. Generic proposals to "increase training" that have little prospect of improving Charter compliance are therefore highly unlikely to sway subsection 24(2) analyses under my proposed approach.

(240) Several other suggestions are listed in the Tulloch Report, supra note 73. See also Roach & Sossin, supra note 73; Tanovich, supra note 73 at 662.

(241) Particularly given continued difficulties with alternative methods of spurring reform. Stuart, "The Charter Balance", supra note 56 at 28; Jamieson, supra note 238 at 78-79; Toprani, supra note 10 at 144-45, 163.

(242) Departments that, by extension, could be involved in a higher number of subsection 24(2) applications.

(243) See Grant, supra note 1 at para 212; Roach & Sossin, supra note 73 at 16; Department of Justice Paper, supra note 17 at 21-22.

(244) David Tanovich lists these outcomes as general benefits of using litigation to combat racial oppression in the criminal justice system. See Tanovich supra note 73 at 658-59.

(245) Grant, supra note 1 at para 84.

(246) Ibid.

(247) Ibid.

(248) Saeed, supra note 83 at para 128.

(249) Ibid at para 155.

(250) Ibid at para 158.

(251) Supra note 84 at paras 55-56, 94.

(252) See note 82.

(253) See R v Griffen, 2015 ONSC 927 at paras 22, 44-46, 50-51, [2015] OJ No 611; R v Noel, 2015 ONSC 2140 at para 56, [2015] OJ No 1757 [Noel]; R v Zarinchang, 2010 ONCA 286 at para 66, [2010] OJ No 1548.

(254) See Deschamps J's remarks on this point in Grant, supra note 1 at para 199.

(255) at para 208.

(256) Noel, supra note 253 at para 56.
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