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Citation: 44 Crim. L.Q. 34 2000-2001
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Open Rubric
Constitutional Remedies in the Criminal
Context: A Unified Approach to Section 24
(Part II)
J.A.E. Pottow*
Part I: Section 24(2) in Crisis

Allowing s. 24(1) to provide for a wider array of remedies
wins only half the battle to reform constitutional relief in crim-
inal proceedings. Section 24(1)'s historical dormancy also
affected s. 24(2), which developed in a context where exclu-
sion was the only relevant (and possible) mechanism for evi-
dence-related Charter relief. As a result, courts adjudicating
constitutional applications to exclude evidence under s. 24(2)
created an approach to exclusionary remedies under the
Charter against a greatly distorted backdrop, unaware of their
full powers and constitutional mandate under s. 24. This mis-
conception had a profound effect. Due to a confluence of
forces to be discussed in the final section of this part, the
apparent yet mistaken unavailability of alternative remedies
under s. 24(1) drove courts to design a system of rigid and
* Associate, Hill & Barlow, Boston, Massachusetts. Member of the Massachusetts and
Ontario bars, A.B., J.D., Harvard University.
Previous drafts of this article were reviewed by R.J.C. Deane, M.C. Fleming,
J.D.L. Fraiberg, and R. Jagsi. Research assistance was provided by D. Strong. Hill
& Barlow generously made available its administrative staff, including J.
Clougherty, K. Rexford and M. Blackman. K. Roach also provided comments.
Several Canadian cases discussed in this article overlapped with the author's
tenure as a law clerk to the Right Honourable Beverley McLachlin, Supreme Court
of Canada. None of the passages reveals any confidential information acquired dur-
ing that time or should be construed in any way as representing an official position
of the court. None of the American cases discussed in this article overlapped with
the author's tenure as a law clerk to the Honorable Guido Calabresi, United States
Court of Appeals for the Second Circuit.
2000] ConstitutionalRemedies: Unified Approach to S. 24 35
arbitrary rules governing the treatment of constitutional reme-

dies under s. 24(2), animated chiefly by a concern that if exclu-
sion were denied, a Charter applicant might go without legal
redress. The first part of this article attempted to correct that
misperception regarding s. 24(1) and thus took the necessary
first step for a fresh approach to s. 24(2).
Theoretically, therefore, the proposals for s. 24(1) advanced
in Part I of this article could succeed independently from any
reform of s. 24(2), i.e., s. 24(2) case law could remain unal-
tered, and courts could begin the long overdue task of dusting
off s. 24(1). The problem, however, is that the ill-formed rules
currently governing s. 24(2) are so wide-sweeping and
entrenched that they would render meaningless the proposed
rediscovery of s. 24(1). For example, as will be explored in
considerable detail below, the current approach to exclusion of
evidence under s. 24(2) requires complete classes of Charter
breaches to be redressed with exclusion automatically, without
permitting consideration of other possible remedies under s.
24(1). Accordingly, the rejuvenation of s. 24(1) proposed in
Part I would be a pyrrhic victory at best if the present, ossified
paradigm of s. 24(2) were maintained.
Therefore, in this second part of this article I will address s.
24(2). I will explain the history and convoluted framework of
the current approach to s. 24(2), reveal its logical inconsisten-
cies, and propose a model to explain how its shortcomings
relate back to the restrictive approach to s. 24(1). I will not,
however, propose an affirmative new approach to s. 24(2),
leaving that considerable undertaking for others. I will simply
demonstrate that the current approach, which stands in the way
of a comprehensive, unified approach to s. 24, must be dis-
carded.
(1) Section 24(2): The Tension, The Factors, and The

Dichotomy
(a) Text and Historical Overview
The current case law governing s. 24(2) of the Charter is, to
say the least, in an unsatisfactory state. Its academic criticism
CriminalLaw Quarterly [Vol. 44
is legion and unrelenting.' Even those sympathetic to the

results obtained concede methodological problems.' By its
text, s. 24(2) prescribes a mandatory (and severe) constitu-
tional remedy for certain infringements of a criminally
accused's constitutional rights. When, "considering all the cir-
cumstances", "the administration of justice is brought into dis-
repute", the evidence shall be excluded.' This "disrepute"
standard for when exclusion is required was the result of pol-
icy compromises in the formation of the Charter, balancing the
interests of various political factions.4
Initially, in the pre-Charter days of the common law, evi-
dentiary exclusion could only be triggered if there was a
chance that the tainted evidence would be unreliable, such as,
for example, a forcibly extracted confession.' The principal
rationale behind the original common law rule was thus in
essence regulatory: it oversaw the criminal process as a whole,
making sure that only "good" evidence would be used to
deprive an individual of his or her liberty. As such, the thrust
of the common law was largely institutional and collectivist,
with the individual accused treated as a subordinate and inci-
dental beneficiary. By contrast, the advent of the Charter
1. See, e.g., R. Mahoney, "Problems with the Current Approach to s. 24(2) of the
Charter: An Inevitable Discovery" (1999), 42 C.L.Q. 443; W.D. Delaney,
"Exclusion of Evidence under the Charter: Stillman v. The Queen" (1997), 76
C.B.R. 521; C.A. Brewer, "Stillman and Section 24(2): Much To-Do about
Nothing" (1997), 2 Can. Crim. L.R. 239. See also P.W. Hogg, Constitutional Law
of Canada (Scarborough, Ont.: Carswell, 1999, looseleaf ed.), pp. 38-23 to 38-24:
"Regrettably ...[the] nuanced approach is being lost. In place of an inquiry into the
nature and circumstances of each Charter breach, a body of jurisprudence is begin-
ning to reject entire classes of evidence on the ground that they would not have been
discovered "but for" a breach of the Charter.This is leading us back to a more rigid
exclusionary rule."
2. See, e.g., K. Roach, Constitutional Remedies in Canada (Aurora, Ont.: Canada Law
Book, 1999, looseleaf ed.) at 110.925: "There is textual support and some sense in
the [R. v. Stillman, [1997] 1 S.C.R. 607, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1, dis-
cussed infra] dissenters['] position..
3. Constitution Act, 1982, s.24(2).
4. See generally A.A. McLellan and B.P. Ellman, "The Enforcement of the Canadian
Charter of Rights and Freedoms: An Analysis of Section 24" (1983), 24 Alta. L.
Rev. 205 (discussing the historical development of s. 24 of the Charter).
5. The pre-Charter common law rule is applied most famously in R. v. Wray, [1971]
S.C.R. 272, [1970] 4 C.C.C. 1,11 C.R.N.S. 235.
advanced the rights of the individual into the forefront,' and

prompted a more "rights protective" approach to remedies.'
In drafting the Charter's remedy provision, specific concern
was expressed over the possibility of constitutional infringe-
ments in gathering evidence that were not so severe as to draw
reliability into question. In such a situation, following the
harsh common law standard, the individual accused might not
receive any relief In essence, there could be a right without
the meaningful vindication of a remedy, a prospect at odds
with the Charter's bold new focus on individual rights.'
Accordingly, it was suggested that the Charter's proposed
remedy clause include an "automatic" exclusionary rule, sim-
6. See R. v. Hebert,[1990] 2 S.C.R. 151 at p. 178, 57 C.C.C. (3d) 1,77 C.R. (3d) 145:
"The Charter [made] the rights of the individual and the fairness and integrity of the
judicial system paramount."
7. Roach would likely refer to the principal rationale of the common law approach as
fitting under a "crime control" model of criminal remedies; "rights protective" is the
label he uses to describe the individual focus of the Charter: K. Roach, "Section
24(1) of the Charter: Strategy and Structure" (1987), 29 C.L.Q. 222 at pp. 227-35.
8. Especially troubling to the drafters was R, v. Hogan, [1975] 2 S.C.R. 574, 18 C.C.C.
(2d) 65, 48 D.L.R. (3d) 427, in which the Supreme Court had held that the absence
of an express remedy clause in the Bill of Rights (a statutory precursor to the
Charter) precluded the exclusion of reliable evidence to remedy the effect of an
infringement. Professor Walter Tarnopolsky testified to the Special Joint
Parliamentary Committee on the Constitution of Canada on the necessity of a rem-
edy clause in the document. The debate focused on the exclusionary remedy. See
McLellan and Ellman, supra, footnote 4, at pp. 207-08.
9. See W.A. Bogart, "'Appropriate and Just': Section 24 of the Canadian Charter of
Rights and Freedoms and the Question of Judicial Legitimacy" (1986), 10 Dal. L.J.
81 (discussing expansive rights and remedies under the Charter and potential con-
cerns of judicial power). M.L. Pilkington, "Damages as a Remedy for Infringement
of the Canadian Charter of Rights and Freedoms" (1984), 62 Can. Bar Rev. 517,
makes at least four arguments why Canadian courts' remedial powers under the
Charter are broader than their American counterparts'.
10. This misnomer is unfortunate. The American rule is only "automatic" inasmuch as
it presumptively flows once a constitutional violation has been demonstrated. But
over its history - more specifically, its recent history subsequent to the drafting
of the Canadian Charter - it has remained true to its stated rationale (deterrence
of police misconduct) and carved out gaping exceptions. See United States v. Leon,
468 U.S. 897 (1984) (good-faith exception to exclusionary rule). See Hogg, supra,
footnote 1, at p. 38-23: 'This [is] ironic, because s. 24(2) was intended to be a com-
promise between the American exclusionary rule and the Canadian inclusionary
rule. And yet the American Court, true to its rationale of deterrence, had created a
good-faith exception to the American rule ... Canada ha[s] a stricter exclusionary
rule than the United States."
ilar to the judicially crafted prophylaxis in the United States, to

require the exclusion of any evidence resulting from a consti-
tutional violation (irrespective of the evidence's reliability)."
But this American rule had problems of its own, so the drafters
attempted to find a middle ground." In an effort to distance
themselves from both the unpopular American rule and the
strict common law, 3 the drafters proposed a seeming compro-
mise: exclusion of evidence became a remedy for constitu-
tional violations, irrespective of the common law rules
regarding reliability, 4 but only in limited circumstances when
admission would bring "the administration of justice into dis-
repute".'.'
The drafters unfortunately did little more than signal in the
text their desire that some form of safety valve - the "disre-
pute" threshold - control the application of the exclusionary
rule. They left to the courts the unenviable job of giving life to
11. See Mapp v. Ohio, 367 U.S. 25 (1949); see also McLellan and Ellman, supra, foot-
note 4, at pp. 207-08.
12. The American exclusionary rule had come under considerable attack as a heavy-
handed remedy of at best debatable deterrent utility and questionable moral justi-
fication. Wigmore's oft-invoked satire demonstrates the crux of the complaint:
Titus, you have been found guilty of conducting a lottery; Flavius, you have
confessedly violated the Constitution. Titus ought to suffer imprisonment for
crime, and Flavius for contempt. But no! We shall let you both go free. We shall
not punish Flavius directly, but shall do so by reversing Titus' conviction. This
is our way of teaching people like Flavius to behave, of teaching people like
Titus to behave, and incidentally of securing respect for the Constitution. Our
way of upholding the Constitution is not to strike at the man who breaks it, but
to let off somebody else who broke something else.
J. Wigmore, Evidence in Trials at Common Law, at s. 2184a, note I. See also R.A.
Posner, "Rethinking the Fourth Amendment", [1981] S. Ct. Rev. 49 (1982)
(describing the exclusionary rule as "an exceptionally crude deterrent device" that
vastly overshoots in its deterrent agenda).
13. Curiously, some of the common law rules are more protective of an accused's
rights than the baseline minimum guarantees of the Charter. See, e.g., R. v. G. (B.),
[1999] 2 S.C.R. 475, 135 C.C.C. (3d) 303, 24 C.R. (5th) 266 (holding that the com-
mon law confession rule requires automatic exclusion of certain involuntary state-
ments irrespective of s. 24(2)'s balancing).
14. See Hebert, supra, footnote 6: "No longer is reliability determinative."
15. ConstitutionAct, 1982, s. 24(2). "This somewhat ambiguous phrase was first used
legislatively in Canada in the 1975 enactment of [then] section 178.16(2) of the
Criminal Code [pertaining to wire tap evidence].": D.V. MacDougall, "The
Exclusionary Rule and its Alternatives - Remedies for Constitutional Violations
in Canada and the United States" (1985), 76 J. Crim. L. and Criminology 608 at
pp. 608 and 619.
that threshold. The problem, however, is that the threshold

contains an inherent paradox. On the one hand, s. 24(2)
invokes the individualistic, counter-majoritarian protection of
a constitutional remedy; it is a vindication tool for use by the
individual against the tyranny of the majority. On the other
hand, by expressly adverting to the repute of the administra-
tion of justice, the clause consciously invokes a public per-
spective, i.e., a collectivist, group-based focus. The tension is
inescapable.
In describing s. 24, commentators have revealed this indi-
vidualist-collectivist conflict. Some emphasize the individ-
ual: 6
It is a trite observation that the repute of the administration of justice
cannot be determined by simple reference to the barometer of current
public opinion. One would expect public opinion regularly, if not
always, to weigh in favour of admitting the evidence. There is a sense
in which that opinion embodies the tyranny of the majority, a kind of
tyranny against which Charterrights were designed to protect,
Equally, others hone in on the collective: "There is simply no
way to interpret [s. 24(2)] as having been in any way moti-
vated by a desire to limit the relevance of the viewpoint of a
majority of Canadians - quite the contrary."' 7
Even the Supreme Court admitted the paradox. In R. v.
Collins, the Supreme Court's seminal pronouncement on s.
24(2), the court explained: 8
The concept of disrepute necessarily involves some elements of com-
munity views, and the determination of disrepute thus requires the
judge to refer to what he conceives to be the views of the community
at large...
The Charteris designed to protect the accused from the majority, so
the enforcement of the Chartermust not be left to that majority.
Lamer J. (as he then was) therefore concluded that in assessing
the repute of the administration of justice "[t]he reasonable
16. A. Lamer, "Protecting the Administration of Justice from Disrepute: The

Admissibility of Unconstitutionally Obtained Evidence in Canada" (1998), 42 St.
Louis U. L.J. 345 at pp. 354-55.
17. Mahoney, supra, footnote 1, at p. 451, note 20 (critiquing Lamer).
18. [1987] 1 S.C.R. 265 at p. 281, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193.
person is usually the average person in the community, but

only when the community's current mood is reasonable."'9
At first blush, it might appear that Lamer J. fell into tautol-
ogy.20 But such circularity is perhaps inevitable in any attempt
to articulate the maddening collectivist-individualist paradox
inherent in s. 24(2). What is clear, regardless of whether he
was successful, is that by choosing the "the repute" of "the
administration of justice" - an expressly collectivist criterion
- as the mechanism to keep control over the exclusionary
remedy, the drafters implicitly recognized that the public
would be hostile to exclusionary relief and hence that they
could rely on the public (as the collective) to exert a restrictive
pressure on its use."'
To give judges guidance on how best to consider "all the cir-
cumstances" (s. 24(2)'s only instruction), Lamer J. offered a
list of factors in Collins. He identified, non-exhaustively, ten
considerations. 2 At the core of Collins was thus a belief,
brought on by necessity, that the difficult task of balancing the
individual's and the collective's interests in s. 24(2) could be
19. Ibid. at pp. 281-82 (emphasis added). Cf D. Gibson, The Law of the Charter:
GeneralPrinciples (Toronto: Carswell, 1986), p. 245, discussed in Collins, ibid.,
at p. 281.
20. "Given the vague language of s. 24(2) it is not surprising that the Supreme Court
of Canada has had difficulty in developing a consistent body of jurisprudence.":
Hogg, supra, footnote 1, at p. 38-23.
21. The recognition is implicit in picking community values as the gate-keeping valve.
For example, the text could have read, "and when the individual suffers grave and
egregious damage, the evidence resulting therefrom shall be excluded", which
would have shifted the gate-keeping back to the individual's vantage point. By
invoking public perception, the drafters recognized a highly effective restrictive
force and their prediction has been borne out empirically. See A.W. Bryant, M.
Gold, H.M. Stevenson, and D. Northrup, "Public Attitudes Toward the Exclusion
of Evidence: Section 24(2) of the Canadian Charter of Rights and Freedoms"
(1990), 69 Can. Bar Rev. 1. For a different perspective, however, consider
Mahoney, supra, footnote 1, at p. 452 (suggesting that R. v. Therens, [1985] 1
S.C.R. 613, 18 C.C.C. (3d) 481, 45 C.R. (3d) 97 captures a public solicitude to
exclusion).
22. The factors, taken from Seaton J.A.'s decision below, were the kind of evidence
obtained; the Charter right infringed; the seriousness or mere technicality of the
breach; the willfulness or flagrancy of the breach or its good faith inadvertence;
urgency; alternative investigatory techniques; inevitable discovery; the seriousness
of the offence; the importance of the evidence; and the existence of other remedies
(although this final factor was disavowed later in the decision): see Collins, supra,
footnote 18, at pp. 283-86.
accomplished. Indeed, for further guidance, Lamer J.grouped

his various factors into several broader clusters, admittedly not
for any legal reason, but "as a matter of personal preference".23
These three labels were: "factors [tending to affect] the fair-
ness of the trial"; "the seriousness of the Charter violation";
and "the [adverse reputational] effect of excluding the evi-
dence". 4 Whether these were accurate or even desirable labels
is beside the point; they were simply intended as organiza-
tional aids for a balancing approach intended to embody "all
the circumstances". These labels, however, were to take root
and steer the direction of s. 24(2) jurisprudence."
Over the next decade, return judicial visits to s. 24(2) slowly
entrenched the three labels as the primary focus of the inquiry
and left the underlying factors and balancing analysis
behind.' The culmination of the Supreme Court's refinements
to Collins came in R. v. Stillman,27 in which a sharply divided
court tried to give yet more guidance to the nettlesome ques-
tion of what brings the administration of justice into disrepute
and what therefore requires exclusionary relief.
(b) Stillman and the Current Section 24(2) Analysis

The starting point in the Stillman analysis is the three labels
or groups of factors from Collins, which Cory J. for the major-
ity referred to as: "the fairness of the trial"; "the seriousness of
23. Collins, ibid., at p. 284.

24. Ibid., at pp. 284-85.
25. See Stillman, supra, footnote 2, at para. 242 (per McLachlin J., as she then was,
dissenting): "These groupings were taken by some subsequent cases as suggesting
a three-part 'test'. In fact, Collins does not suggest that they constitute a test;
rather, they were simply a convenient way of considering the various 'circum-
stances' which may need to be considered in a particular case."
26. Some factors flourished over time and others died. See R. v. Belnaris, [1997] 3
S.C.R. 341, 118 C.C.C. (3d) 405, 10 C.R. (5th) 65 (conceding that the third clus-
ter of factors was falling out of the case law, but protesting that simply because it
was "often mentioned only in passing... does not mean judges [were] not taking
it into account"). See generally S.K. Fenton, "Recent Developments in s. 24(2)
Jurisprudence" (1997), 39 C.L.Q. 279; G.E. Mitchell, "Section 24(2)
Circumstances" (1993), 35 C.L.Q. 433.
27. Supra, footnote 2.
the Charter violation"; and "the administration of justice".2

The Stillman court made clear its desire to overhaul Collins:2 9
There can be no question that the Collins decision was the
pathfinder that first charted the route that courts should follow when
considering the application of s. 24(2). However, subsequent decisions
of this Court and their interpretations by the courts below indicate that
a further plotting of the course for courts to follow is required, while
maintaining the basic principles outlined in Collins.
Cory J. proceeded to discuss these three groups. What is
confusing in his characterization of the three groups (stem-
ming from the language originally used in Collins) is that the
second and third clusters of factors - the seriousness of the
breach and the effect of exclusion on the administration of jus-
tice - are questions of degree. Although the third blends into
a legal conclusion," both can be analyzed from a perspective
of degree: how serious was the breach, how great an impact on
the administration of justice would exclusion of the evidence
have? By contrast, the first cluster, although technically possi-
ble to express in terms of degree (how much does this breach
affect the fairness of the trial?), contains an initial legal deter-
mination as a condition precedent: as a threshold matter, a
court must first decide that the breach in question somehow
implicates trial fairness. But this "mere threshold" - that the
breach "implicate" the trial's fairness to fall under the first
cluster - is a profoundly critical and normative legal conclu-
sion in its own right.3
Implicitly recognizing this phenomenon, Cory J. elevated
the first Collins "factor" to special status in Stillman. It no
longer was one of three groups of considerations in a multi-
28. Ibid., at para. 69.

29. Ibid, at para. 71.
30. The third cluster of factors might at first appear difficult to distinguish from the
ultimate legal determination under s. 24(2). The language stems from the original
description of the factors in Collins, in which Lamer J.tried to put the disreputable
effects of admitting the evidence on one side, and the disreputable effect of exclud-
ing the evidence on the other. The first and second group of questions sought to
answer the admission concerns, and the third sought to answer the exclusion con-
cerns. See Collins, supra, footnote 18, at pp. 284-85.
31. This "threshold" comes dangerously close to eclipsing the ultimate question one
purports to answer under s. 24(2) if one accepts that a breach adversely "implicat-
ing" trial fairness draws the administration of justice into disrepute.
faceted balancing process, it became the final answer in itself:

admission of unconstitutional evidence adversely affecting the
fairness of a trial draws the administration of justice into dis-
repute. The only possible way this conclusion could be wrong
would be if one accepted either (1) that admission of evidence
that would render a trial unfair might somehow not draw the
administration of justice into disrepute, or (2) that "factors
tending to affect the fairness of the trial" might not, in fact,
necessarily render the trial unfair in all cases. 2 While the sec-
ond negating proposition was never confronted squarely by the
Stillman majority, whose decision glossed over the difference
between "tending to affect the fairness of the trial" and "ren-
dering the trial unfair",33 the first negating proposition was a
straw man that Cory J. easily dismantled:
A consideration of trial fairness is of fundamental importance. If
after careful consideration it is determined that the admission of evi-
dence obtained in violation of a Charter right would render a trial
unfair the evidence must be excluded without consideration of the
other Collins factors. A fair trial for those accused of a criminal
offence is a cornerstone of our Canadian democratic society. A con-
viction resulting from an unfair trial is contrary to our concept of jus-
tice. To uphold such a conviction would be unthinkable. It would
indeed be a travesty of justice.
32. But cf.R. v. Tremblay, [1987] 2 S.C.R. 435, 37 C.C.C. (3d) 565, 60 C.R. (3d) 59
(finding a constitutional breach but nonetheless admitting conscriptive evidence of
a breath sample).
33. The dissenters pounced on this point: see Stillman, supra, footnote 2, at para. 190
(per L'Heureux-Dubd J., dissenting) and para. 257 (per McLachlin J., dissenting).
While the dissenters crafted a plausible argument for the second negating proposi-
tion, it is in the end an uphill battle of semantics that they are unlikely to win. Once
one concedes that a given constitutional error "diminishes" or "affects" the fair-
ness of the trial, it seems difficult to accept that a free and democratic society will
countenance a "somewhat" unfair trial when a person's liberty is at stake. See R.
v. Meddoui, (1990), 2 C.R. (4th) 316 at p. 319, 61 C.C.C. (3d) 345, 2 C.R. (4th)
316 (Alta. C.A.), leave to appeal to S.C.C. quashed 69 C.C.C. (3d) vi, [1991] 3
S.C.R. ix, 6 C.R.R. (2d) 192n (describing argument as "silly"). For convenience,
the rest of this article will simply refer to the "unfairness" of using unconstitu-
tional, conscriptive evidence at criminal trials, and assume that the "tendency" to
affect or impair trial fairness in fact renders the trial unfair.
34. Stillman, supra, footnote 2, at para. 72. D.M. Paciocco, "Stillman, Disproportion
and the Fair Trial Dichotomy under Section 24(2)" (1997), 2 Can. Crim. L. Rev
163 at p. 167 praises this logic as "irrefutable", but adds, "What is not so impervi-
ous to rational criticism, however, is the more basic notion that the admission of
unconstitutionally obtained evidence can render a trial unfair."
Up to this point, Stillman was an entirely unremarkable and

even welcome decision, attempting to clarify some of the con-
fusing language in Collins (although it exacerbated, or perhaps
resigned itself to, the preoccupation over Collins' three clus-
ters). Where the decision diverged strikingly was in its assess-
ment of the "threshold" question to the first cluster: what
Charter breaches "affect" trial fairness, and thus render a trial
unfair and hence require automatic exclusion under s. 24(2)?
To answer this question, Stillman curiously instructed trial
judges to focus on the evidence that results from the Charter
breach. 5 They were told to classify the evidence as either
"conscriptive" or "non-conscriptive". The labels are terms of
art: to be conscriptive, the evidence does not literally need to
be extracted from the accused (like a compelled blood sample
or a judicial order to confess under oath); the term refers to
inculpatory evidence that emanates from the accused and, a
fortiori, serves to self-incriminate.36 For example, an incrimi-
nating statement offered by an accused who has not been told
of the right to a lawyer may be conscriptive evidence flowing
from a failure to caution the accused of the right to counsel.
Moreover, even real evidence, such as the proverbial smoking
gun, is deemed conscriptive if it is derived from a conscriptive
source (such as a gun found as a result of the statement in the
previous example)."
Stillman's bombshell was that the Supreme Court held, on
reasoning to be explored below, that all conscriptive evidence,
no matter how obtained and how trivial, affects the fairness of
a trial. Its underlying theory was that unconstitutional con-
scriptive evidence is unfair per se and hence renders any trial
35. See R.J. Delisle, "Collins: An Unjustified Distinction" (1987), 56 C.R. (3d) 216 at
p. 217: "It is difficult, if not impossible to understand why the fairness of a trial
would or would not be affected ... depending on the type of evidence obtained
during the investigation."
36. See Hogg, supra, footnote 1, at p. 38-11. For critique of this taxonomy, see, e.g.,
Mahoney, supra, footnote 1, at pp. 454-55: "I refuse to accept that a conclusion of
unfairness flows merely from such an artificial labelling."
37. See Stillman, supra, footnote 2, at paras. 99-101 (discussing R. v. Burlingham,
[1995] 2 S.C.R. 206, 97 C.C.C. (3d) 385, 38 C.R. (4th) 265). There has been some
attempt to retreat from Stillman by strictly circumscribing its definition of "con-
scriptive evidence". See Roach, supra, footnote 2, at 110.1225 and note 297a (dis-
cussing an extra-judicial speech by Cory J.).
2000] Constitutional Remedies: Unified Approach to S.24 45
at which it might be used unfair, thus bringing the administra-

tion of justice into disrepute and requiring exclusion. In other
words, if unconstitutional evidence is conscriptive, it is auto-
matically excluded, regardless of "all the circumstances"
referred to in s. 24(2).18 Non-conscriptive evidence, by con-
trast, remained subject to the "traditional" Collins balancing. 9
This bold departure - or logical culmination, depending on
one's point of view - is what made Stillman such a contro-
versial decision, both in legal and in lay circles."
Stillman's extraordinary position "dichotomizing" one class
of the Collins factors from the others - requiring automatic
exclusion of evidence within that class - is surprising in light
of the fact that Collins' labels were only intended for conve-
nience in the first place.4' But, on closer analysis, the Stillman
dichotomy might not be as contrary to the language of s. 24(2)
as it might first appear. Stillman could be interpreted not as
ignoring "all the circumstances" of cases involving conscrip-
tive evidence, but as weighing and then rejecting all the other
circumstances, as a pre-determined matter of law. In other
words, Stillman does consider "all the circumstances" of the
constitutional breach, but prospectively holds - as a matter of
law, and in all cases - that once there has been a Charter vio-
lation producing conscriptive evidence, there has been "disre-
pute per se". This is certainly an internally coherent position
38. The court arguably qualified its language by saying that its rule only applied "gen-
erally". See Stillman, supra, footnote 2, at paras. 73 and 119. It also created two
reverse presumptions whereby if the conscriptive evidence was inevitably or inde-
pendently discoverable, it is presumptively admissible if challenged. See idem at
paras. 103-07. Uncertainty exists whether these reverse presumptions were
intended to be illustrative or exhaustive. See, e.g., Paciocco, supra, footnote 34, at
pp. 179-80. For convenience, the general discussion in this article of conscriptive
evidence will assume, unless noted otherwise, that these exceptions (or presump-
tions) do not apply.
39. Indeed, if the evidence is non-conscriptive, Stillman suggests it is presumptively
admissible if challenged. See Stillman, supra, footnote 2, at para. 115 (non-con-
scriptive evidence's admission "generally will not render the trial unfair").
40. See D.M. Paciocco, Getting Away With Murder: The Canadian CriminalJustice
System (Toronto: Irwin Law, 1999).
41. See Collins, supra, footnote 18, at p. 284. Some were unhappy with this surprising
development. See Stillman, supra, footnote 2 (McLachlin J., dissenting): "The bal-
ancing process that the framers of s. 24(2) intended is thus completely under-
mined."
and cannot be faulted on that basis. The fatal flaw of Stillman,

however, is that it has never adequately explained why this
conclusion should possibly be drawn.
(2) Stillman's Flaws and the Fairness Fallacy

(a) Critiquing Stillman
Stillman can be attacked on numerous fronts. 2 Many have
protested (both positively and normatively) that the automatic
exclusionary rule regarding conscriptive evidence departs
from the mandated flexibility of the text of s. 24(2). These
legitimate critiques might be called "rigidity" complaints,
because they object to the inflexible, automatic exclusion of
conscriptive evidence without due consideration of "all the cir-
cumstances".43 As discussed above, however, they can be
answered (whether one believes persuasively or not) by recast-
ing Stillman as holding that a certain class of situations will
always meet the s. 24(2) standard as a matter of law.
There are also the related analytical complaints, which
accept the fundamental groupings laid out by Collins, but crit-
icize Stillman's implementation. For example, like the
42. One ground that should be considered initially is internal inconsistency. After
insisting that conscriptive evidence requires no further analysis in assessing
whether exclusion is in order, the majority went on to consider the other two
(apparently unnecessary) Collins factors. See Stillman, supra, footnote 2, at para.
122 (opining that "something should be said of the seriousness of the Chartervio-
lation which occurred in this case"). One could argue that if the court had true con-
viction in the rigidity of its rule, it would not have needed to buttress its analysis
with reference to other considerations that it protested were irrelevant. Compare
also idem at paras. 65 and 69 (conceding that the s. 8 conclusions left "no reason
to consider alternative" arguments under s. 7) with idem at para. 93 (proceeding to
an apparently unnecessary s. 7 discussion, notwithstanding a s. 8 conclusion, due
to a "concern with ... fail[ing] to recognize the fundamental importance of the
innate dignity of the individual").
43. See, e.g., Mahoney, supra, footnote 1, at p. 449: "Under Collins, the proper inquiry
under s. 24(2) into the repute of the administration of justice was quickly trans-
formed into an inquiry into the fairness of the trial. In itself such a move may be
supportable. But the mysterious metamorphosis of that fair trial inquiry into a
dichotomy between conscriptive and non-conscriptive evidence moved well
beyond the focus mandated by s. 24(2)." (emphasis added); see generally D.
Stuart, "Questioning the Discoverability Doctrine in Section 24(2) Rulings"
(1996), 48 C.R. (4th) 351 at p. 356: "Section 24(2) calls for discretion in all cir-
cumstances rather than a simplistic rule."
20001 ConstitutionalRemedies: UnifiedApproach to S, 24 47
Stillman dissenters, one could accept the implicit premise that

certain factors "tend to affect" the fairness of the trial, but then
question the further conclusion that all such errors necessarily
render the trial, at the end of the day, fundamentally unfair."
Because the overall fairness of a trial cannot be gauged until
after "all the circumstances" have played out, the absolutism
and ex ante confidence with which Stillman declares that a cer-
tain type of breach will automatically spoil the entire trial is
unjustified. 45 The problem, however, with this critique is that it
falls victim to Stillman's (and Collins') semantic trap, by mak-
ing the initial concession that a certain class of evidence (con-
scriptive) is somehow even related to the fairness of a criminal
trial. Thus by admitting in the first place that conscriptive evi-
dence "tends to affect" the fairness of the proceedings, the
argument is faced with the uphill task of explaining why an
error that has had an impact on the fairness of the trial should
nonetheless be countenanced. To be sure, the task is not
impossible, but it is rhetorically difficult to sell a "partially
unfair trial" as something that might not draw the administra-
tion of justice into disrepute. Intuitively, a trial is either fair or
it is unfair. It does not make sense to speak of some trials being
more fair than others.46 While some trials can be more
unfavourable than others, once the unfavourableness has
crossed into the realm of unfairness, a threshold has been
passed that should not admit of degrees. Thus, by choosing the
powerful concept of "trial fairness" as the label for his first
cluster of categories in Collins, Lamer J., whether intentionally
or not, set the stage for its eventual elevation to absolute sta-
tus.
44. See Stillman, supra, footnote 2, at para. 257 (McLachlin J., dissenting): "With
respect, this confuses two different things: unfair aspects of a trial and a funda-
mentally unfair trial."
45. This can be seen by such legal rules as the "harmless error" doctrine in American
constitutional law and the Criminal Code curative proviso in Canadian criminal
law. See Chapman v. California, 386 U.S. 18 (1967) (permitting certain constitu-
tional errors amounting to "harmless error" in a conviction); Criminal Code of
Canada, R.S.C. 1985, c. C-46, s. 686(l)(b)(iii) (permitting dismissals of appeals
where notwithstanding trial error there has been no "substantial wrong or miscar-
riage of justice").
46. But cf.Stillman, supra, footnote 2, at para. 258 (McLachlin J., dissenting) (sug-
gesting that there can be "degrees of trial unfairness").
There are also outright normative critiques of Stillman, such

as Paciocco's complaint that the decision to call conscriptive
evidence unfair is not a legal one, but one of the judges' own
value systems: "[I]t has to be recognized that accepting [that
conscriptive evidence results in trial unfairness] is entirely a
matter of choice, not legal imperative." 7 Again, this line of cri-
tique is valid, but not entirely compelling because it begrudges
the court its institutional prerogative to make the tough value
judgments that Parliament and the drafters of the Charter saw
fit to leave to it. Thus it is theoretically available for the court
to adopt a rule, even in the face of s. 24(2)'s apparent insis-
tence on flexibility, that certain Charter breaches will give rise
to disrepute as a matter of law. For example, few could deny
that evidence extracted from torturing the accused necessarily
brings the administration of justice into disrepute and hence
should be excluded without further analysis of, e.g., the good
faith of the torturers in believing that their means were
absolutely necessary to achieve a desirable end. 4 Therefore it
is equally possible - at least theoretically - to make the
same argument regarding conscriptive evidence, i.e., that as a
class it is so objectionable that it always results in disrepute.
The crucial question, and the key to the most compelling
criticism of Stillman then becomes: is conscriptive evidence
analogous to torture? That is, is there something so inherently
unfair or evil about constitutional breaches resulting in con-
scriptive evidence to warrant their special and categorical
treatment? The Supreme Court of Canada has apparently held
so, but without explanation that is merely ipse dixit. To take a
bold normative stance such as saying a broad-sweeping and
diverse category of evidence, which includes anything ranging
from a tortured confession to a mistakenly obtained finger-
print, is always unfair certainly requires some compelling, rea-
soned justification. That has never been satisfactorily
provided.
47. Paciocco, supra, footnote 34, at p. 169.

48. Cf R. v. Harrer,[1995] 3 S.C.R. 562, 101 C.C.C. (3d) 193, 42 C.R. (4th) 269 (cit-
ing evidence-gathering techniques that "shock the conscience"- such as torture
presumably does - as per se violations of fundamental justice under s. 7).
20001 ConstitutionalRemedies: Unified Approach to S. 24 49
(b) Critiquing the Premise: De Facto Compelled Self.

Incrimination
Other than circularly relying on Lamer J.'s diction in
Collins (which was selected "as a matter of preference" and
was never intended as a comprehensive legal analysis), 9 the
Supreme Court has yet to offer any compelling justification for
its insistence that using unconstitutional conscriptive evidence
is unfair. Indeed, the court has not even been able to come up
with a consistent position. At first it was suggested that the
unfairness might come from the nature of the evidence. "It is
clear.., that the factors relevant to this determination [of dis-
repute] will include the nature of the evidence obtained as a
result of the breach and not so much the manner in which it
was violated."50 By contrast, the court rejected the "nature of
the evidence" theory and resurrected "the manner in which
[the right] was violated" in Stillman, reasoning: "Evidence
obtained by a significant compelled intrusion upon the body
without consent or statutory authorization should be consid-
ered, as a general rule, to adversely effect [sic] the [fairness] of
the trial."'"
49. It is noteworthy that Le Dain J. apparently predicted the confusion that Lamer J.'s
diction would reap by referring to "fairness": see Collins, supra, footnote 18, at pp.
293-94 (per Le Dain J., concurring).
50. Collins, supra, footnote 18, at p. 284 (emphasis added). Following this reasoning,
Lamer J. contrasted, as the common law had historically done, pre-existing real
evidence from testimonial evidence, noting the heightened disrepute with admit-
ting the latter kind of unconstitutional evidence. See idem ("Real evidence that was
obtained in a manner that violated the Charterwill rarely operate unfairly for that
reason alone."). This distinction (and hence rationale) was subsequently abolished
by Stillman.
51. Stillman, supra, footnote 2, at para. 93. Under this proposed justification, the
unfairness of conscriptive evidence comes from the violation of dignity the indi-
vidual suffers in the unconstitutional evidence-gathering process. This "dignity"
theory could also be taken as the beginning of an essentially Kantian argument to
Charter rights and remedies: that no violation of the individual's autonomy or per-
sonhood in any way whatsoever can be tolerated because it would transgress the
maxim against treating an individual as a means to an end. This would logically
lead to exclusion being the mandatory remedy for any such conscriptive infringe-
ment. This approach would be philosophically pure, to be sure, but would stand
against the reality of myriad utilitarian laws countenanced in Canadian society,
such as, e.g., mandatory breathalyzer tests. Moreover, by referring to significant
compelled intrusion upon the body beyond a "minimal fashion" (Stillman, supra,
footnote 2, at para. 92; see also Paciocco, supra, footnote 34, at pp. 178-79 (sug-
Other than these vacillations, the closest the court has ever
come to articulating a consistent stance as to why conscriptive
evidence should be considered unfair was in Justice Sopinka's
attempt to tackle the question squarely, first in concurrences,
and then in majority reasons." Sopinka J. summarized: 3
It is apparent that the words "conscripted against himself through
confession or other evidence emanating from him" necessitated fur-
ther definition...
The participation of the accused in providing incriminating evi-

dence involving a breach of Charterrights is the ingredient that tends
to render the trial unfair as he or she is not under any obligation to
assist the Crown to secure a conviction.
Thus at the core of Sopinka J.'s unfairness argument lies the
privilege against self-incrimination that bestows upon the
accused the right to do nothing, to say nothing, and to remain
free from taking the stand at his own prosecution.54 The theory
begins as follows: because of the presumption of innocence,"
the onus is on the State to establish the facts that it contends
gesting that "unobtrusive procedures" employed to gather conscriptive evidence
would likely fall under a de minimus exception to Stillman's automatic ban)),
instead of any compelled intrusion, Cory J. was at the outset trying to resist the
absolutism on which the categorical imperative would insist, revealing the
unworkability using the construct.
52. Sopinka J. first advanced the notion in Hebert, supra, footnote 6 (Sopinka J., con-
curring), which was then quoted by the majority in R. v. Elshaw, [1991] 3 S.C.R.
24, 67 C.C.C. (3d) 97, 7 C.R. (4th) 333, and by acobucci J. for the full court in R.
v.Broyles, [1991] 3 S.C.R. 595, 68 C.C.C. (3d) 308, 9 C.R. (4th) 1. These cases,
however, conducted the full Collins balancing of all the circumstances, so it is
unclear what weight, if any, should be attached to these earlier roots.
53. R.v.Burlingham, supra, footnote 37, at paras. 143-44 (emphasis added). See also,
e.g., R. v.Ross, [1989] 1 S.C.R. 3, 46 C.C.C. (3d) 129, 67 C.R. (3d) 209; R. v.
Jones [1994] 2 S.C.R. 229, 89 C.C.C. (3d) 353, 30 C.R. (4th) 1.
54. The right against compelled testimonial self-incrimination is codified at s. 1I(c) of
the Charter. The testimonial privilege as it applies to other witnesses is in s. 13.
The generalized right to silence in pre-trial investigation, as corollary right, is
found under an amalgam of s. 7 and s. 10(b)'s right to counsel. See Hebert, supra,
footnote 6, at pp. 162-81 (discussing full history of ancient common law doctrine
of nemo tentur seipsum accusare and R. v. Garbett (1847), 1 Den. 236, 169 E.R.
227). Whether the entitlements are more accurately characterized as testimonial
privileges or normative rights is essentially semantic. See generally D.J. Galligan,
"The Right to Silence" (1988), 41 C.L.P. 69 (describing the right to silence as a
"bundle" of more specific rights).
55. Cf. Thomson Newspapers Ltd. v. Canada (Directorof Investigation and Research,
warrant convicting the accused and depriving her of her lib-

erty. Interwoven with this burden is the individual right against
self-incrimination, which prevents the prosecution from forc-
ing the accused to take the stand to give the evidence under
oath that may establish her guilt. The prosecution must thus
hoist the accused by means other than her own petard.'
Justice Sopinka's theory regarding conscriptive evidence is
thus no more than the application of the familiar legal theme
that the State cannot do an "end run" around the accused's
rights against self-incrimination by doing indirectly that which
it is forbidden to do directly. By unconstitutionally acquiring
conscriptive evidence, the Crown illegally secures self-incrim-
inating evidence from the accused's own mouth or body. More
importantly, because this evidence is procured under the
State's official evidence-gathering power, with which individ-
uals are obliged to comply, it can be said to be "compelled"
self-incriminating evidence. 7 For example, a suspect must
allow the police to search her person pursuant to a warrant,
even if the warrant is later found to be constitutionally flawed
and even if the suspect has reservations over its validity at the
time of the search. Accordingly, letting the Crown use this
"compelled" self-incriminating evidence at trial to help con-
vict the accused, the theory reasons, is just as bad as letting the
State force the accused to take the stand and give self-incrim-
Restrictive Trade PracticesCommission), [1990] 1 S.C.R. 425 at p.533, 54 C.C.C.

(3d) 417, 76 C.R. (3d) 129 (per La Forest J.) (suggesting in dictum that conscrip-
tive evidence might be construed as a de facto violation against the presumption of
innocence).
56. The right is traditionally justified as necessary to avoid the "cruel trilemma" an
accused - at least a "guilty" accused - would face on the stand, having to choose
the least of the three evils of conviction (by admitting guilt), perjury (by denying
guilt), or contempt (by refusing to answer). See R. v. Boss (1988), 30 O.A.C. 184,
46 C.C.C. (3d) 523, 68 C.R. (3d) 123 (per Cory J.A., as he then was) (quoting
People v. Modesto, 398 P.2d 753, 761 (Cal. 1965) (per Traynor J.)). See Lamb v.
Munster (1882), 10 Q.B.D. 110 at p. 113 (common law right against compelled
testimonial self-incrimination).
57. The state action requirement is thus critical to the unfairness. Just as a private indi-
vidual can freely give evidence against the accused at trial, a private person (as
long as he is not serving as a state agent) may forcibly pluck a hair from a suspect
under investigation and give it to the police. Private actors cannot breach the
Charter. Thus, the key to the unfairness is not self-incrimination simpliciter, but
state-compelled self-incrimination: see Mahoney, supra, footnote 1, at p.457.
Criminal Law Quatierly[ [Vol. 44
inating evidence under oath on pain of perjury or contempt. As

Paciocco summarizes, "In a broad sense, by assisting the
Crown in furnishing evidence against himself, [the accused] is
effectively a 'witness' against himself.""8
The theory has undeniable visceral appeal.59 It invokes the
common law right against self-incrimination by equating
unconstitutional conscription of evidence with compelled self-
incrimination. Not only does this re-orientation draw upon
powerful, individual-protective forces (always a sympathetic
theme in discussing the Charter), but it draws upon historical
and common law roots.' It is one thing to say that a remedial
rule flows from the nature of a freshly created substantive right
from 1982;61 it is quite another to raise the spectre of the
inalienable, time-honoured right against self-incrimination.
The right dates back centuries in the common law to the Star
Chamber, 6 and as soon as a Charter breach can be said to vio-
late this core right, exclusion seems almost demanded.
Paciocco refers to Sopinka J.'s theory as "the fair trial" the-
ory, implicitly accepting that conscriptive evidence can be thus
linked to the obvious unfairness of self-incrimination.63 A

59. See ibid. at p. 181 (describing the theory as "powerfully seductive rhetoric"). In
addition, Justice Sopinka's theory is consistent with the discoverability exception
to conscriptive evidence. If exclusion is seen as a corrective imperative to nullify
a Charter breach, then there is no need for vindication if the evidence was
inevitably discoverable. Under such circumstances, Sopinka J.'s logic would say
that the accused was not (effectively) forced to take the stand by his harmless if
unfortunate participation in the evidence gathering, because the inevitable discov-
ery of the damaging evidence rendered the Charter violation irrelevant to the
incrimination. See K. Roach, "Evolving Fair Trial Test" (1996), 1 Can. Crim. L.
Rev. 117 at p. 123 (applying corrective justice analysis).
60. See R. v. Woolley (1988), 40 C.C.C. (3d) 531, 63 C.R. (3d) 333, 25 O.A.C. 390
(C.A.): "The right to remain silent is a well-settled principle that has for genera-
tions been part of the basic tenets of our law."
61. Such a right may well be treated with judicial skepticism amongst judges who
think they got along perfectly well as a free and democratic society before 1982
without excluding relevant and reliable evidence.
62. See L. Herman, "The Unexplored Relationship Between the Privilege Against
Compulsory Self-Incrimination and the Involuntary Confessions Rule (Part 1)"
(1992), 53 Ohio St. L.J. 101.
63. Paciocco, supra, footnote 34, at p. 169 (using the label descriptively without
endorsing its analysis).
more accurate name might be the "de facto compelled self-

incrimination" theory of conscriptive evidence, for at least
three reasons. First, the term "fairness" should be avoided alto-
gether, as it circularly presumes the conclusion the theory
seeks to establish.6 Second, using "de facto" keeps the focus
on the logical premise that anchors the argument: that it is
effectively "the same" - or the de facto equivalent - of forc-
ing the accused to take the stand and give evidence against her-
self.6" Finally, "compelled" emphasizes that the theory's
fairness concern is not self-incrimination simpliciter(such as a
voluntary confession or an ill-chosen confidence shared with a
loose-lipped friend), but state-prescribedself-incrimination.
The defacto compelled self-incrimination theory is thus the
court's ultimate attempt to account for the purported link
between conscriptive evidence and trial fairness. It fails, how-
ever, for the simple reason that it cannot explain the inconsis-
tent treatment. of "conscription" throughout Canadian
jurisprudence. For example, if it is the malum in se nature of
the breach (because it is akin to forcing the accused to testify)
that requires automatic exclusion, then we would expect the
"conscription" of evidence to be uniformly banned. Similarly,
if the logic is that it is the de facto equivalence of compelled
testimony that makes the violations so repugnant, then we
would expect equal horror and treatment in any other situation
64. See Delaney, supra, footnote 1: "Perhaps the development of the new exclusion-
ary rule has been driven by the rhetorical force inherent in the term 'trial fairness'."
65. Many challenge this empirical conclusion, connecting self-emanation to "effec-
tive" compelled self-incrimination. See P.L. Moreau, "Comment - R. v. Stillman"
(1997), 40 C.L.Q. 148 at p. 153: "Merely because the accused was the source of
the evidence, or participated in its discovery, does not mean that he was 'con-
scripted'." See also Paciocco, supra, footnote 34, at p. 169 (complaining that the
adoption of this de facto reasoning "requires the choice to equate the use of evi-
dence obtained from the accused during pre-trial investigation [] with calling the
accused as a witness against himself"). Indeed, the "de facto" reasoning strains its
logical roots when it equates state-compelled self-incrimination with state-induced
or state-provoked self-incrimination. See Mahoney, supra, footnote I, at p. 454
(criticizing this reasoning, used in R. v. Feeney, [1997] 2 S.C.R. 13, 115 C.C.C.
(3d) 129, 7 C.R. (5th) 101 as "legal sophistry"). The answer to all these com-
plaints, however, is that whether one likes it or not, the Supreme Court elected to
make a legal judgment on the strength of the causal chain, which may or may not
have been the right decision, but which was institutionally legitimate and internally
consistent.
where the facts constitute "effective" compelled self-incrimi-

nation. Neither of these proves to be the case.
One such inconsistency is exposed by Paciocco, who argues
that if conscriptive evidence is so objectionable, why does
society countenance laws that permit - and indeed, compel
- conscription?' The mandatory breathalyzer statute is but
one example.67 If conscripting evidence is so unfair that in the
presence of a constitutional breach it requires automatic exclu-
sion, then how can such laws exist? Although the easy answer
is to say that such laws are all unconstitutional, that does not
align with current jurisprudence that has consistently upheld
such legal requirements. 8
A further inconsistency of the treatment of conscriptive evi-
dence arises when one considers "non-unconstitutional" illegal
conscription. By this I mean the "legally wrongful" conscrip-
tion of evidence that violates the law but does not fit into the
category of a Charter breach. The comparison is critical,
because if it is the de facto compelled self-incrimination that
renders conscriptive evidence unfair, then there is nothing
magical about the Charter, per se, triggering the exclusion. We
would expect equally hostile treatment of all "unlawful" de
facto compelled self-incrimination.
Consider, therefore, a privileged statement, such as an attor-
66. See Paciocco, supra, footnote 34, at p. 169. See also Moreau, ibid.
67. See Criminal Code of Canada, s. 254.
68. See R. v. F. (S.) (2000), 47 O.R. (3d) 348 (C.A.) (upholding recent DNA laws).
The Supreme Court, perhaps in an effort to save time, attempted to pre-empt this
appeal. See Stillman, supra, footnote 2, at para. 92: "Although the issue was not
raised, it would seem that the recent provisions of the Code permitting DNA test-
ing might well meet all constitutional requirements," Note that such laws might
well be "initially" invalid but saved by s. I of the Charter (or in the s. 7 context,
survive the intra-section balancing of the "principles of fundamental justice", see
Paciocco, supra, footnote 34, at p. 179). See Stillman, idem: "[Tihe Criminal Code
provisions pertaining to breath samples are both minimally invasive and essential
to control the tragic chaos caused by drunk driving." (dictum). But even if such
laws must rely on s. 1 to pass constitutional muster, they still are, in the end, con-
stitutional. The ultimate constitutional permissibility of such laws cuts against the
proposition that conscription is unconscionable, Paciocco goes so far as to suggest
that the purported unconscionability of conscription is further undermined by the
allowance of voluntary confessions. This argument is less persuasive, however,
because if the privilege against self-incrimination is an individual right, then there
is no reason why it cannot be waived by the rightholder.
2000] Constitutional Remedies: Unified Approach to S. 24 55
ney-client confidence, uttered by the accused and that is erro-

neously let into evidence by the trial judge. The statement is
legally compelled, because the judge orders it into evidence
over the accused's objections. 9 It is certainly "conscriptive",
because it emanates from the accused and serves to incriminate
him at trial. Furthermore, it is "legally wrongful", because we
will assume that the judge clearly erred by letting it into evi-
dence (let us say that the statement was not, as a matter of law,
in furtherance of a future crime, as the judge mistakenly but
plausibly believed). But it is not unconstitutional,as there had
been no Charter breach, merely a garden-variety error of law.
Yet undeniably, the "non-unconstitutional" legal error
inflicted the same evil upon the accused as unconstitutional
conscription. It wrongfully used the accused's own words to
form part of the case for the prosecution - the de facto equiv-
alent of forcing him to take the stand and give self-incriminat-
ing evidence.
Yet it is striking to note the disparity of judicial treatment
compared to a constitutional violation. Under Stillman, if the
very same statement arose as a result of, say, a good-faith s.
10(b) violation, the conscriptive testimonial evidence would
be excluded automatically, without further analysis. It would
be a Charter breach producing conscriptive evidence, and
hence, under Stillman, unfair per se. But in the non-unconsti-
tutional privilege violation example, it would be nothing more
than an evidentiary error of law. The aggrieved accused could
certainly appeal based on the erroneous admission of the "con-
scriptive" evidence, but he would face a variety of factors that
would be balanced in assessing the effect of the incorrect
admissibility ruling against the overall fairness of his trial.
Significantly, he would have to face the curative proviso of s.
686 of the Criminal Code.70 Under no circumstances could he
69. That the principal state actor is a judge in this scenario (as opposed to a police offi-
cer) is of no moment.
70. See Criminal Code of Canada, R.S.C. 1985, c. C-96. s. 686(l)(b)(iii). Strictly
speaking, an applicant wrongfully denied exclusion under s. 24(2) could also face
s. 686 on appeal, but it has never been seriously suggested that s. 686 would (or
even could, constitutionally) be used in such a case. See, e.g., R. v. Broyles, supra,
footnote 52, at p. 620. Application of the proviso would troublingly posit the exis-
tence of a conviction drawing the administration of justice into disrepute that was
simply point to the fact that the evidence could be character-

ized as conscriptive to "prove" that the fairness of his trial had
been compromised (as Stillman would suggest), let alone that
such a conclusion had to follow automatically as a matter of
law without regard to "all the (other) circumstances" of his
trial. While in result he may end up with a retrial (as he would
automatically under Stillman for a Charter breach), he would
only do so after facing the burden of balancing various other
considerations. Stillman offers no justification for this differ-
ential treatment.7
A final instance of inconsistency arises within the context of
comparative Charter violations. Consider two more hypotheti-
cals, each involving police deception producing constitutional
violations: the first with respect to a hair sample (violating s.
7, after Stillman), the second with respect to an unreasonable
search (violating s. 8). In the first scenario, the police plant an
undercover officer in the jailhouse who tricks the accused into
offering a hair sample (perhaps saying he wants a hair as a
memento).7" In the second fact pattern, the police go to search
a building of the accused - knowing full well that they have
neither reasonable nor probable grounds to do so - and then
trick the accused into believing that they have a valid war-
rant.7" As such, they wrongfully secure consent to the search,
which results in a smoking gun being discovered, a gun that
would have otherwise remained hidden forever given the
somehow not a "substantial wrong". Indeed, if conscriptive evidence renders a trial

"unfair", application of the proviso would thus countenance an "unfair" (or even
partially "unfair") criminal trial.
71. The accused could, of course, argue that the admission of the statements was not
"mere" legal error, but in addition violated his overall right to a fair trial under s.
7 and hence that there was a Charter breach. But it would put the cart before the
horse for him to argue that it was the "conscriptive" nature of the breach that
proved the alleged violation of s. 7, because it would backwardly use s. 24(2) to
demonstrate a s. 7 breach.
72. Cf Hebert, supra, footnote 6 (involving deceptively induced testimonial evi-
dence).
73. Cf.Feeney, supra, footnote 65 (asking the accused to reveal a bloody shirt by step-
ping into light during unreasonable search). In R. v. Mellenthin, [1992] 3 S.C.R.
615, 76 C.C.C. (3d) 481, 16 CR. (4th) 273, the police arguably tricked the accused
into "consenting" to opening an incriminating gym bag during an otherwise unrea-
sonable search. Mellenthin's treatment under Stillman would likely have mirrored
Feeney's.
20001 Constitutional Remedies: Unified Approach to S. 24 57
14
absence of reasonable or probable grounds for the search.
Each of these deceptions violates the accused's constitutional
rights, the first regarding his right to physical autonomy, the
second regarding his freedom from unreasonable searches and
seizures. Both scenarios produce "smoking gun" evidence (lit-
erally in the second case) that will be used to secure an
inevitable conviction. Each breach is thus equally serious and
damning to him: by police chicanery causing his affirmative
participation in the State's investigation, he has incriminated
himself, "effectively" taking the stand in his own prosecution.
One would logically expect identical constitutional redress.
Yet again, the opposite occurs, by Stillman 's very own com-
mand. In the first case, the breach is labeled "conscriptive",
hence rendering the hair sample excludable automatically,
without resort to further circumstances. But in the second case,
the "non-conscriptive" nature of the s. 8 breach renders the
gun only potentially excludable, subject to balancing "all the
circumstances" of s. 24(2)." But if the defacto theory's ratio-
nale of compelled self-incrimination is correct, then the dis-
parity between the two cases is logically unjustifiable.76
Although in ultimate result there may be no difference - it
would be hard to imagine the gun not being excluded - the
disparity in treatment is logically inconsistent, with one breach
earning exclusion per se and the other being tempered by the
full consideration of other factors."
74. To control for inevitable discovery, we will also assume that the police, despite the
best of efforts, would never have found grounds for a hair-gathering warrant in the
first example and that they would never have unearthed sufficient grounds to
search the building in the second one. Cf. R v. Black, [1989] 2 S.C.R. 138, 50
C.C.C. (3d) 1, 70 C.R. (3d) 97 (discoverable knife); Burlingham, supra, footnote
37 (undiscoverable gun).
75. One pre-Stillman commentator presciently shared this concern. See Delisle, supra,
footnote 35.
76. See also R. v. Wong, [1992] 3 S.C.R. 36, 60 C.C.C. (3d) 460, 1 C.R. (4th) 1 (video-
taped, hence arguably "conscriptive" evidence of accused admitted due to, among
other reasons, good faith of officers). Wong, like Mellenthin, supra, footnote 73,
preceded Stillman.
77. See Feeney, supra, footnote 65 (labelling shirt as non-conscriptive, although ulti-
mately excluding it due to the severity of the breach and all the other circum-
stances). In his earlier writings in a separate area, Roach observed that "placing
Charter violations which threaten a fair trial in a preferred position[] may create []
problems."): supra, footnote 7, at p. 242, note 63.
Criminal Law Quarterly [Vol. 44
The de facto compelled self-incrimination theory therefore

simply fails to explain the inconsistent treatment of conscrip-
tive evidence under Canadian case law. Consequently, it
becomes difficult to accept any principled basis for the propo-
sition that unconstitutional conscriptive evidence necessarily
and always implicates trial fairness." To be sure, sometimes
(perhaps even often) it does, but sometimes it does not.79
Equally, sometimes non-conscriptive evidence is unfair, but
sometimes it is not. What has never been - and cannot be -
provided, however, is the crucial link that all conscriptive evi-
dence can always be called "unfair" (or that it should be
treated as categorically different from non-conscriptive evi-
dence regarding "unfairness"). Bereft of compelling and rea-
soned justification, the Supreme Court's repeated incantations
that conscriptive evidence "tends to affect the fairness of the
trial" are little more than bald assertions. Paciocco's summa-
tion becomes inescapable:1°
The fact is, there is no clear or compelling theoretical basis for the
fair trial theory. Without a theoretical basis, the truism that we have to
exclude evidence where its admission would undermine the fairness of
the trial is empty, pointless and irrelevant.
(3) The Origin of the Stillman Problems: a Proposed

Explanation
Having exposed the structural flaws of the Stillman analysis
and its lack of a coherent normative basis, one is left to won-
der why the case law of s. 24(2) has grown so distorted:
whence, in the face of textual flexibility, came the drive to
craft rigid, per se rules?' And it is not mere rigidity in the
78. Roach, trying to back away from Stillman's automatic rigidity, concedes this point
by suggesting that "questions of... whether the purposes of the fair trial test are
engaged ... will potentially militate against exclusion of conscriptive evidence":
supra, footnote 59, at p. 132.
79. One pre-Stillman case that would be difficult to square with the current automatic
approach would be R. v. Harper, [1994] 3 S.C.R. 343, 92 C.C.C. (3d) 423, 33 C.R.
(4th) 61 (admitting conscriptive testimonial evidence because of the accused's
"almost irresistible desire to confess").
81. To reiterate, the scope of this article is not to propose a new, better test to deal with
gauging the disrepute a given constitutional violation inflicts upon the administra-
tion of justice. Many others have addressed that task. The goal here is to expose
abstract, but a "directional" rigidity - rigidity that favours the

accused. Returning to the initial collectivist-individualist ten-
sion that underlies s. 24(2), it is clear that the individualist side
of the equation has assumed pre-eminence. Why is this so?
There are several possible reasons for this phenomenon. It
could be that the court has become incompetent and does not
understand the proper role of s. 24(2).82 Or it could be that the
court's complement is of a certain political bent, currently
favouring a strongly individualistic, "pro-accused" agenda."
Or perhaps it could be that the court is simply "activist" and is
trying to usurp for itself the ability to pronounce the best way
to deal with evidentiary exclusion, rather than follow the lan-
guage the drafters chose for the Charter.14 But these explana-
tions are all too quick and tidy.8" It may be that elements of
some or all of these reasons are to blame, but it seems equally
likely that there are more complicated factors at work, espe-
cially when one remembers the elusive tension upon which s.
24(2) rests.
The following is a proposed model for what may be driving
Canadian courts toward their current stance on s. 24(2). I rec-
ognize at the outset that this is largely a task of speculation, as
it is impossible to demonstrate empirically many of the points
I suggest. But if there is at least intuitive appeal to these pro-
ferred explanations, then they can guide debate toward how
best to remedy the current crisis bedeviling s. 24(2). Even if
one advocates overruling all existing case law and starting
from scratch with a revisitation of Collins (which may well be
Stillman's logical flaws and thereby open the door for an entirely new approach to
s. 24.
82. See, e.g., Mahoney, supra, footnote i.
83. See D.M. Paciocco, "The Judicial Repeal of s. 24(2) and the Development of the
Canadian Exclusionary Rule" (1990), 32 C.L.Q. 326 at p. 352 (suggesting current
jurisprudence results from benign mistrust of the public's zeal for convictions).
Compare also Roach's suggestion that the balancing approach of McLachlin J.
would be "too dangerous" to the accused. See Roach, supra, footnote 2, at
110.195.
84. See Paciocco, ibid.
85. Cf. Delaney, supra, footnote 1, at p. 525: "One wonders why the Supreme Court
would go to such lengths to construct a rule which flies in the face of the clear lan-
guage of section 24(2) of the Charter and the obvious intent of the framers which
may be inferred from the history of the drafting of section 24(2)."
a sensible course of action), one still must confront the prob-

lem of how best to avoid falling into the same pitfalls the sec-
ond time around. More importantly, by positing a relationship
between the problems of s. 24(2) and the availability of alter-
native remedies to exclusion, I provide heightened incentive to
embrace rescuing s. 24(1) from its current restrictive coils (the
reform proposed in the Part I of this article).
Any judge facing an application for exclusionary relief
under the Charter must confront (either consciously or sub-
consciously) what I call "the Remedy Principle", which is the
longstanding judicial abhorrence of leaving a legal wrong
unredressed. Enjoying a substantive right is only half the bat-
tle; having a meaningful remedy to vindicate that right is
essential for the law to be anything more than empty plati-
tudes. As long ago as 1703, Chief Justice Holt echoed the
belief that "it is a vain thing indeed to imagine a right without
a remedy".8 6 Indeed, the repugnance of the possibility of hav-
ing a wrong go uncorrected weighed upon the drafters of the
Charter so heavily that they explicitly added a remedial provi-
sion, which other Constitutions, most notably the American,
never saw necessary to include. 7 Some have even argued that
s. 24 itself is an explicit abrogation of sovereign immunity,88
and it is clear that Canadian judges take a dim view to sugges-
tions that rights can go unredressed.89 The Charter itself
86. Ashby v. White, 2 Ld. Raym. 938 at p. 953, 92 Eng. Rep. 126 at p. 136 (H.L. 1703).
The case involved a breach of the fundamental right to vote.
87. In R. v. Hogan, [1975] 2 S.C.R. 574, 18 C.C.C. (2d) 65, 48 D.L.R. (3d) 427, an
infamous case at the time the Charter was being drafted, the Supreme Court of
Canada held that the Bill of Rights (the Charter's statutory predecessor) did not
confer on the court the power to exclude evidence, even in the event of an admit-.
ted Bill of Rights violation, because of the absence of an explicit remedy provi-
sion. See generally McLellan and Eliman, supra, footnote 4.
88. See Pilkington, supra, footnote 9, at pp. 535 and 563.
89. For a recent example, see R. v. Shirose, [1999] 1 S.C.R. 565 at para. 1, 133 C.C.C.
(3d) 257, 24 C.R. (5th) 365, rejecting the claim that the R.C.M.P. are immune from
the criminal laws: "[E]veryone from the highest officers of the state to the consta-
ble on the beat is subject to the ordinary law of the land." For a more seminal pro-
nouncement, see Nelles v. Ontario, [1989] 2 S.C.R. 170, 71 C.R. (3d) 358, 60
D.L.R. (4th) 609 (rejecting absolute immunity for Crown prosecutors by constru-
ing s. 5(6) of the ProceedingsAgainst the Crown Act, R.S.O. 1980, s. 393, to pro-
vide only qualified immunity to individual prosecutors). Canada also has broadly
waived sovereign immunity by statute. See Pilkington, ibid., at p. 563.
invokes idealistic notions of the individual being protected

from the excesses of the State.9" Therefore, any judge who
finds that an individual's rights have been violated under the
Charter will be loath to deny a meaningful remedy.9
90. The Remedy Principle causes considerable legal angst in the United States, where
arcane doctrines of sovereign immunity seriously impede many constitutional liti-
gants from redressing violations. See Pilkington, ibid., at p. 534. For a landmark
American discussion on Congress' remedial authority and its power to strip the
federal courts of jurisdiction to remedy federal violations, see H.M. Hart, Jr., "The
Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in
Dialectic" (1953), 66 Harv. L. Rev. 1362. For the phenomenon of sovereign immu-
nity impeding remedies, see generally R.H. Fallon, Jr. and D.J. Meltzer, "New
Law, Non-Retroactivity, and Constitutional Remedies" (1991), 104 Harv. L. Rev.
1731 at pp. 1779-91 and R.H. Fallon, Jr., "Of Legislative Courts, Administrative
Agencies, and Article III" (1988), 101 Harv. L. Rev. 915 at pp. 956-58. The irony
of sovereign immunity being a bedrock legal principle in the United States, a coun-
try purportedly formed on the rebellion against the supremacy of the Crown, has
been noted by others: seeAlden v.Maine, 119 S. Ct. 2240, 2273-75 (1999) (Souter
J., dissenting).
91. See, e.g., R. v. M (T.C.) (1982), 70 C.C.C. (2d) 123 (Ont. Prov. Ct.); R. v.
Crossman (1984), 9 D.L.R. (4th) 588, 12 C.C.C. (3d) 547, [1984] I F.C. 681
(T.D.), Judges even engage in "fictions" to grant remedies. See R. v. Burns (1982),
144 D.L.R. (4th) 132, 2 C.C.C. (3d) 283, 40 O.R. (2d) 64 (H.C.J.). An interesting
recent example of the extent to which courts strain under restrictions on remedies
is R. v. 974649 Ontario Inc. (1998), 42 O.R. (3d) 354, 130 C.C.C. (3d) 1, 166
D.L.R. (4th) 593 (C.A.), leave to appeal to S.C.C. granted 137 C.C.C. (3d) v, 176
D.L.R. (4th) vi, 66 C.R.R. (2d) 376n. The Remedy Principle likely accounts for the
drafters' discomfort with Hogan's spectre of unremedied rights. See McLellan and
Elman, supra, footnote 4 (discussing legislative history of the Charter).
A contrary view is revealed by Paciocco, who suggests that the Charter not only
countenances but encourages some rights to remain unredressed in the criminal
domain. See Paciocco, supra, footnote 34, at p. 172: "[T1he principle of propor-
tionality means that there will be no remedy for many accused persons now reap-
ing the benefits of their constitutional rights, thereby leaving them without
meaningful enjoyment of their constitutional rights."; see also idern, at p. 173:
"[This] 'right without remedy' rhetoric has never carried the day in the context of
excluding evidence. Nor should it. When the admission of evidence would not
undermine the fairness of the trial we let it infrequently, leaving the accused with-
out a meaningful remedy." There are profound problems with Paciocco's logic on
this point. First, if "proportionality" is meant to convey a correspondence between
harm and remedy, then no remedy should exist only when there is no constitutional
wrong. Second, the fact that the law has heretofore been under-protecting certain
Charter infringements (an equally plausible alternative to Paciocco's position)
cannot be relied upon to prove that those rights should not be protected in the first
place. In sum, even Paciocco falls victim to the mentality that s. 24(2) is an exclu-
sive remedy and suggests that when exclusion is not warranted no constitutional
redress is in order. His conclusion would have been more accurate had he said,
"When the admission of evidence would not undermine the fairness of the trial we
The problem is that the Remedy Principle directly conflicts

with the gate-keeping restriction intended by setting a thresh-
old for the application of s. 24(2). In other words, if s. 24(2) is
taken on its own terms, then only some violations of the
Charter earn a remedy - those where admission of resulting
evidence would bring the administration of justice into disre-
pute - whereas the other, lesser "non-disreputable" breaches
apparently garner no redress at all. Exacerbating the problem
is the all-or-nothing character of the exclusionary tool in the
remedial arsenal: either the remedy is ordered or it is not. The
judge cannot exclude half of a knife. Therefore the exclusion-
ary rule, as currently interpreted by the courts, is "doubly" all-
or-nothing: first, it appears to be the only remedy contemplated
(other than even more drastic relief such as a stay of proceed-
ings) for unconstitutional evidence-gathering; second, when
exclusion is invoked all the tainted evidence must be kept out
(there is no mechanism for individual tailoring). This abso-
lutist quality leaves courts with only two choices: a hefty rem-
edy or no remedy at all.9"
Put in terms of the collectivist-individualist tension, the
Remedy Principle pushes judges to the individualist side of the
spectrum.93 Guided by this force. alone, one would expect a
regime of evidentiary rules that disproportionately favour
exclusion - such as Stillman's insistence that conscriptive
evidence be automatically excluded. Under such a view, the
Remedy Principle would be fomenting judicial hostility to the
collectivist entrenchment on individual rights inherent in s.
24(2), with cases such as Stillman evincing judicial subversion
of an unpalatable constitutional compromise.94 If this were the
let it in frequently, leaving the accused without the overly drasticremedy of exclu-
sion." Paciocco would have been more on the mark to stick with his position that
"While not reducing directly the constitutional rights of those who commit the
most heinous offenses, the principle of proportionality would unquestionably
reduce access to exclusion in such cases.": idem, at p. 172.
92. Early Charter judges who recognized this potential did not do so gladly: see R. v.
Laurendeau (1983), 4 D.L.R. (4th) 702 at p. 708 (Que. C.A.): "[T]here may be a
right without a remedy - a thought repugnant to the law."
93. This idea is implicit in Roach's discussion of the differences between ss. 24(2) and
24(1), with the latter being more favourable to the accused due to its heightened
focus on the individual: see Roach, supra, footnote 7.
94. See Paciocco, supra, footnote 83.
only factor at work, matters could be solved very easily. The

individualist "left-shift" in the case law surrounding s. 24(2)
could be corrected by a counter-shift to the right: the courts
could be admonished to "toughen up" on profligate eviden-
tiary exclusion.
The problem is not so simple, however, because there is a
counter-force, driven by the all-or-nothing inelegance of the
exclusionary remedy." As Wigmore and others have demon-
strated, the exclusionary rule is a blunt and heavy-handed
instrument that arguably vindicates one wrong by creating
another.1 To be sure, it is extremely salutary to the accused,
but frequently too much so, to the extent that it can create an
outright "windfall" of constitutional relief.97 Particularly for
judges who practiced during a pre-Charter regime of the Wray
standard, it is hard to swallow the notion that relevant and reli-
able evidence, oftentimes the only way of ascertaining the
truth in a criminal proceeding, should nonetheless be excluded
from the criminal process. 98 Even in Canada, where the exclu-
sionary rule derives from the explicit text of the Charter, there
is hostility and disenchantment with this controversial reme-
dial mechanism. 99
95. See B.F. Shanks, "Comment: Comparative Analysis of the Exclusionary Rule and
Its Alternatives" (1983), 57 Tul. L. Rev. 648 at p. 658.
96. See People v.Defore, 150 N.E. 585, 587 (N.Y. 1926) (per Cardozo J.): "The crim-
inal is to go free because the constable has blundered."
97, See, e.g., Posner, supra, footnote 12. Paciocco refers to this excess with violent
imagery, calling it "a collective act of self-immolation": Paciocco, supra, footnote
40, at p. 243, and "self-flagellation [inflicting] disproportionate pain", Paciocco,
supra, footnote 34, at p. 172.
98. See, e.g., R. v.Dennison (1990), 60 C.C.C. (3d) 342, 80 C.R. (3d) 78, 109 N.B.R.
(2d) 388 (N.B.C.A.), leave to appeal to S.C.C. refused 63 C.C.C. (3d) vi, 3 C.R.
(4th) 276n, 111 N.B.R. (2d) 90n.
99. See generally ibid. The American counterpart stems not from the text of the
Constitution but from a judicially created rule deemed necessary to ensure com-
portment with the Constitution by wayward law enforcement officials. See Mapp
v. Ohio, supra, footnote 11. Implicit in the assessment that the disrepute threshold
involves some element of the public interest (vis-t-vis the collectivist vs. individ-
ualist debate) is the assumption that the public is generally unreceptive to the
exclusionary rule as a means of constitutional redress. See Bryant et al., supra,
footnote 21 (demonstrating disjunct between public acceptance of exclusionary
relief and the legal requirements for exclusion under Canadian law). One interest-
ing finding from the Bryant study is that the phrasing of the questions affected the
gauged disrepute from the hypothetical breach (i.e., whether a scenario was pre-
Criminal Law Quarterly[ [Vol. 44
This tension between the Remedy Principle and the unde-

sirability of the exclusionary rule produces an even deeper
problem with s. 24(2). My suspicion is that judges seek to have
it both ways by trying to satisfy both the Remedy Principle and
the skepticism over exclusion - but they unfortunately do so
at an unacceptable price. The only way a judge can feed both
beasts is to find no Charter breach at the outset, and hence
avoid the need to consider the remedy. As such, the judge
assuages the Remedy Principle that tugs at her conscience by
rationalizing that there is no right in need of remedying in the
first place."re This is obviously the most speculative of my
chain of propositions; very few judges, many of whom I doubt
would even be doing so at a conscious level, would include in
their judgments an express reference to their undermining an
accused's substantive rights due to difficulties in crafting sat-
isfactory remedies. But sometimes the process can be divined
indirectly from a particularly striking holding: res ipsa
loquitur.
Take for example the otherwise unremarkable judgment in
R. v. Liew, 0' which involved the alleged violation of an
accused's s. 7 right to silence by police deception, contrary to
the rules set out in R. v. Hebert and R. v. Broyles (which pro-
hibit "active elicitation" of information of suspects in custody
by undercover officers). °2 At a voir dire, the trial judge held
sented as requiring "admission" or "exclusion" of evidence). This result lends cre-

dence to the criticisms of some that s. 24(2) should focus on whether the admis-
sion of the evidence would draw the administration of justice into disrepute: see,
e.g., Mahoney, supra, footnote 1, at p. 463.
100. I am not alone in this concern. Others have worried that profligate remedies sti-
fle the substantive pronouncements of rights. See A. Amar, "The Future of
Constitutional Criminal Procedure" (1996), 33 Amer. L. Rev. 1123 at p. 1138;
J.C. Jeffries, Jr., "Damages for Constitutional Violations: The Relation of Risk to
Injury in Constitutional Torts" (1989), 75 Virg. L. Rev. 1461 at p. 1476. Cf K.
Cooper-Stephenson, "Tort Theory for the Charter Damages Remedy" (1988), 52
Sask. L. Rev. 1 at p. 62: "The adoption of [a generous remedial framework]
'might dissuade the court from proclaiming the right in the first place."' (quoting
R.J. Sharpe, "Injunctions and the Charter"(1984), 22 Osgoode Hall L.J. 473 at
p. 483: "Courts do not mechanically decide rights without considering possible
remedial conundrums.").
101. [1999] 3 S.C.R. 227, 137 C.C.C. (3d) 353, 27 C.R. (5th) 29.
102. R. v. Hebert, supra, footnote 6; R. v. Broyles, supra, footnote 52. In Hebert the
court established that the police may not plant undercover agents in cells for the
that an undercover agent's conversation with the accused in a

holding cell had crossed the line from passive discussion to
active elicitation, and hence had violated the accused's Charter
right to silence under clearly established law. The judge
ordered exclusion of the (conscriptive) incriminating state-
ments under s. 24(2) without debate. On Crown appeal, the
divided Alberta Court of Appeal, in an unusual judgment,
reversed the trial judge on legal grounds, holding that in addi-
tion to the "active elicitation" threshold of Hebert-Broyles,
there was afurther requirement that a police deception contain
an "atmosphere of oppression" to violate s. 7 of the Charter.
Finding no "atmosphere of oppression" in the custodial decep-
tion under its modified Hebert-Broyles test, the Court of
Appeal ordered the conscriptive confessional evidence admit-
ted at trial °3
On further appeal to the Supreme Court of Canada, the court
unanimously rejected the Alberta Court of Appeal's "atmos-
phere of oppression" addition to the Hebert-Broyles test. But,
in an even more remarkable decision, it nonetheless affirmed
the appeal on alternative grounds: that the custodial conversa-
tion did not constitute "active elicitation" under its existing
standards - a fact-based position endorsed by none of the
judges in the courts below.' Indeed, even the Court of Appeal
purpose of actively eliciting information from suspects as a subversion of the
right to silence. While the police may engage in conversation and are not mute
"listening posts", they may only engage in passive elements of conversation and
may not ask questions or "actively elicit" information by steering the conversa-
tion to provocative subjects on which they need information. Broyles elaborated
on the definition of "active elicitation" and held that the substance of the
exchange was more important than the format, and that the police, even if not
posing questions, could not "direct the conversation to those areas where [they]
needed information" (p. 613). In other words, active elicitation does not require
literal questioning, it requires only statements or comments that can be consid-
ered "the functional equivalent" of questioning (p. 611).
103. See R. v. Liew (1998), 212 A.R. 381, 124 C.C.C. (3d) 202, 15 C.R. (5th) 325
(C.A.).
104. As part of a "sting" operation, a police undercover agent posed as a drug buyer
,from one Lee. The accused, Liew, was apparently involved with Lee in some
lesser capacity as a type of driver or lookout. When the potential bust went awry
and the suspects fled the scene, the police arrested Liew, and, in a clever tactic,
"arrested" the undercover agentl"buyer" as well, placing him in the same cell as
Liew. It was unclear what happened to Lee.
A jail cell conversation began between the undercover agent and Liew, in
3 - 44 C.L.Q.
majority apparently conceded that if it were incorrect in its

modification of Hebert-Broyles, then there was a clear viola-
tion of s. 7 and exclusion would be warranted. Yet with only
one dissent, the Supreme Court bent over backward to deny
the breach of a constitutional right and hence avoid the thorny
issue of whether exclusion of the conscriptive evidence would
be an appropriate remedy under s. 24(2).
A very likely explanation for this judicial contortion at both
the appellate and Supreme Court levels is surely discomfort
with the remedial consequences. If there was a breach of s. 7,
Stillman would require the automatic exclusion of the evi-
dence, as it was conscriptive. Yet the facts in Liew were highly
sympathetic toward admission, because the disrepute to the
administration of justice seemed so minimal: an undercover
police agent crossed the difficult line between "passive dis-
cussion" and "active elicitation" in cajoling incriminatory
utterances. Indeed, the agent, an experienced veteran, was
fully aware of the accused's rights and gave uncontroverted
evidence that he was acting in good faith in respect thereof and
trying to stay on the right side of the line. Still further, the
"tainted" evidence was not even being sought for the Crown's
case-in-chief. 05 Exclusion of the evidence therefore seemed
gratuitous overkill in light of the trivial nature of the breach
which Liew discussed his alleged co-conspirator Lee, and the agent played along
in his undercover role as the "arrested" drug buyer. The police, however, only
had evidence of Liew's presence (as a driver) at the bust, but had no evidence of
his actual possession of drugs. Consequently, in the midst of the conversation
between the undercover agent and Liew regarding the money and Lee (but not
the drugs), the agent, out of the blue, turned the discussion to the drugs them-
selves, with the provocative: "Yeah, they got my fingerprintson the dope." Liew
fell for the ruse and concluded "[M]e ...too", conceding possession.
The governing standard for a violation of s. 7 is whether "there is a causal link
between the conduct of the state agent and the making of the [incriminating]
statement by the accused" (Broyles, supra, footnote 52, at p. 611), and whether
the police "direct the conversation to those areas where . . .the police need[]
information" (idem, at p. 613). In defending the remarkable position that the
agent's comments did not so direct Liew's conversation, the court explained that
the agent's statement "did not stray from the flow of the conversation about the
arrest" (emphasis added). I leave for the reader to assess whether any undercover
agent's conversation regarding a drug bust could not be characterized as being
"about the arrest". For a more detailed critique, see the dissent of Lamer C.J.C.
105. The Crown wanted the evidence simply to corroborate the accused's presence in
a conspiracy.
(too much deception in a context where some deception is

allowed). But rather than concede the violation and deny
exclusion under s. 24(2) (which would likely have required
overruling Stillman) - and face the equally ugly notion of an
unremedied constitutional violation - the court managed to
"underdefine" the scope of the accused's s. 7 rights, standing
on the slenderest of reeds to try to distinguish its controlling
precedent. As Paciocco encapsulated in reference to another
case: "[T]he prospect of having to grant extreme remedies
encourages courts to characterize facts in a manner that avoids
finding a constitutional breach."'' 6
Thus if my theory regarding the true motivating forces of s.
24(2) jurisprudence is correct - the dominance of the Remedy
Principle followed closely by the discomfort with the exclu-
sionary rule - then one would predict a paucity of cases in
which constitutional breaches are found but exclusion is
nonetheless denied under s. 24(2). Research reveals few such
cases,"0 7 the Supreme Court's R. v. Caslake being a recent
exception." 8 In conclusion, I submit that the following chain of
propositions are affecting, and arguably warping, the interpre-
tation and implementation of s. 24(2):
1. As currently interpreted, exclusion is an all-or-nothing rem-
edy, in two ways: first, it is the only remedy available in the
evidentiary realm,19 and second, it is an indivisible, heavy-
handed remedy that can easily overshoot the constitutional
wrong.

107, See Roach, supra, footnote 59, at p. 119, note 7 (collecting the. list of such cases
and concluding that it "remains short"). Paciocco describes cases such as
Tremblay, supra, footnote 32, and R. v. Mohl, [1989] 1 S.C.R. 1389, 47 C.CC.
(3d) 575n, 69 C.R. (3d) 399 (where unconstitutional conscriptive evidence was
admitted), as ones in which the accused was in effect contributorily negligent in
bringing about the Charter breach. See Paciocco, supra, footnote 34, at p. 166,
note 8.
108. [1998] 1 S.C.R. 51, 121 C.C.C. (3d) 97, 13 C.R. (5th) 1. Moreover, Caslake, a
perfunctory decision, dealt with non-conscriptive evidence. Its s. 24(2) analysis
is fleeting: a quick three-paragraph disposition of the three Collins factors.
109. This stems from the old approach to s. 24(1), which I recommend reforming in
Part I of this article. (There are always, of course, stronger remedies available,
such as an outright stay of proceedings.)
2. A strong force operating on any judge is the Remedy

Principle, which maintains that it is repugnant to the rule of
law to countenance the violation of a right - especially a
constitutional right - without a meaningful remedy.
3. Countering the Remedy Principle, albeit subordinate in
force, is skepticism and aversion toward the exclusionary
rule, especially due to its inelegance flowing from (1)
above.
4. Courts are drawn to the robust and generous definition of
individual liberties under the Charter, although this force is
subservient to (3) above.
5. Therefore, ajudge who believes that exclusion is the appro-
priate remedy for a given constitutional breach faces no
problems.
6. However, a judge who believes that exclusion is an inap-
propriateremedy for a given breach runs against force (2)
above by virtue of (1). To assuage this concern, she has the
following options, in decreasing order of perceived attrac-
tiveness:
a. "Under-construe" the right and find no substantive vio-
lation, which violates (4) above, but satisfies the more
powerful forces of (2) and (3).
b. Declare the violation and order exclusion, which
although being against the result the judge wants to
reach, assuages force (2) at the expense of force (3).
c. Declare the violation but deny exclusion. Although this
most accurately accords with the judge's desired dispo-
sition, it satisfies (3) above only by violating (2).
The first of the three alternatives in (6) above can only be
operating subconsciously; it remains the domain of Critical
Legal Studies to expose (as I have tried to do above by dis-
secting the Liew case). However, the preference of the second
over the third is what I believe is the true force that animates
rules that require or lean toward exclusion in s. 24(2) cases.
This is what drives Stillman and all its attendant logical fallac-
ies. By creating rules that "force" courts toward exclusion, the

judiciary has relieved itself of the unpleasant situation of con-
doning the breach of the Charter without a remedy, and has
successfully eschewed s. 24(2)'s near-impossible mandate of
balancing the seemingly irreconcilable individual-collective
tension. Note also that the arrangement does not result in "too
much" or "too little" exclusion from either a positive or nor-
mative standpoint. Although looking at Stillman alone would
lead a critic to suggest that there is too much exclusion being
ordered, the legion of cases such as Liew, that might be falling
under (6)(a) above, must be balanced on the other side of the
ledger. Therefore, while "net exclusion" may be correct in
terms of quantity, it is likely being improperly and hence sub-
optimally distributed, because for every Stillman, there is a
Liew.
The root of all these problems returns to Proposition (1)
above: that exclusion under s. 24(2), as currently interpreted,
is an exclusive remedy. But as the first part of this article
demonstrated, that is a mistaken assumption that need not be
true. Because the Remedy Principle, which drives judges to
create automatic rules under s. 24(2) (to ensure that a remedy
will be granted when the Charter is breached), can be assuaged
with alternative remedies under s. 24(1). "0 The re-integration
of s. 24 proposed in the first part is therefore much more than
an effort to return Charter jurisprudence to greater textual
fidelity. Rather, it is also an attempt to facilitate refinement of
s. 24(2), by providing judges facing constitutional evidentiary
110. 1 should add a brief comment on the various forces I hypothesize shape s. 24(2).
As Ashby (discussed supra, footnote 86) demonstrates, the Remedy Principle is a
justifiably well entrenched principle of constitutional and common law. By con-
trast, the aversion to the exclusionary rule is only half-valid. It is only valid in
cases where it results in a "disproportionately" excessive remedy. But there is
nothing wrong with exclusion when it is "proportionately" necessary, in the judg-
ment of the trial judge, to correct a significant constitutional wrong. Broad-based
attacks against the rule globally are thus excessive in themselves. To be fair, the
American commentators, such as Posner (discussed supra, footnote 12 and infra,
Part IIl), who decry the rule in favour of tort remedies, write in a context where
a judge crafting constitutional relief does not enjoy the benefit of the vast flexi-
bility conferred by s. 24 of the Canadian Charter. Thus the American critiques are
at least not excessive; they are merely inapposite. See MacDougall, supra, foot-
note 15, at p. 663: "American cases have different complexions . . . Canada,
through its s. 24 procedure ... may limit the use of American judgments."
CriminalLaw Quarterly4 [Vol. 44
violations with a scalpel where before they had only an axe.'

With the greater power to award a wider array of remedies,
courts will become able to satisfy the single greatest force dis-
torting s. 24(2) - the Remedy Principle - because they will
no longer face the spectre of constitutional wrongs going unre-
dressed if they deny exclusion. Litigants, in turn, will enjoy all
the associated benefits, including a more generous interpreta-
tion of their underlying substantive constitutional rights, no
longer tainted by fears of triggering potentially inordinate
relief.
The interrelation between s. 24(1) and s. 24(2) therefore
requires that both provisions be redeveloped in concert. Any
reform of s. 24(2) is doomed to fall into the historical trap of
Stillman unless s. 24(1) is simultaneously opened up to allow
new remedies in criminal trials and provide the required outlet
for the Remedy Principle. Equally, s. 24(1), even if completely
re-invigorated, will lie useless and dormant if the automatic
rules requiring exclusion under s. 24(2) are not similarly
revised. A unified approach to s. 24 therefore demands the
joint reform and harmonization of both the subsections of the
Charter's remedy provision.
(To be continued - PartIII and the Conclusion will be
published in a subsequent issue.)
1I1. Pushing an admittedly imperfect analogy, one can envision the constitutional vio-
lation the trial judge wishes to remove as a tumour afflicting the accused. By
offering the trial judge a scalpel, I hope to solve the previous problem that pushed
the judge into the lesser of two evils: either using an axe to perform the surgery,
with all its medical carnage and inelegance, or (motivated by the horror of such
ugliness) rationalizing that the tumour perhaps was not that big after all, and so
may not even require surgery. Cf R. v. O'Connor, [1995] 4 S.C.R. 411, at para.
69, 103 C.C.C. (3d) 1,44 C.R. (4th) I (per L'Heureux-Dubd J., dissenting): "It is
important to recognize the Charter has now put into judges' hands a scalpel
instead of an axe ... "

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Citation: 44 Crim. L.Q. 34 2000-2001

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Part I: Section 24(2) in Crisis

arbitrary rules governing the treatment of constitutional reme-

(1) Section 24(2): The Tension, The Factors, and The

is legion and unrelenting.' Even those sympathetic to the

advanced the rights of the individual into the forefront,' and

ilar to the judicially crafted prophylaxis in the United States, to

that threshold. The problem, however, is that the threshold

16. A. Lamer, "Protecting the Administration of Justice from Disrepute: The

person is usually the average person in the community, but

accomplished. Indeed, for further guidance, Lamer J.grouped

(b) Stillman and the Current Section 24(2) Analysis

23. Collins, ibid., at p. 284.

the Charter violation"; and "the administration of justice".2

28. Ibid., at para. 69.

faceted balancing process, it became the final answer in itself:

Up to this point, Stillman was an entirely unremarkable and

at which it might be used unfair, thus bringing the administra-

and cannot be faulted on that basis. The fatal flaw of Stillman,

(2) Stillman's Flaws and the Fairness Fallacy

Stillman dissenters, one could accept the implicit premise that

There are also outright normative critiques of Stillman, such

47. Paciocco, supra, footnote 34, at p. 169.

(b) Critiquing the Premise: De Facto Compelled Self.

The participation of the accused in providing incriminating evi-

warrant convicting the accused and depriving her of her lib-

Restrictive Trade PracticesCommission), [1990] 1 S.C.R. 425 at p.533, 54 C.C.C.

inating evidence under oath on pain of perjury or contempt. As

58. Paciocco, supra, footnote 34, at p. 169.

more accurate name might be the "de facto compelled self-

where the facts constitute "effective" compelled self-incrimi-

ney-client confidence, uttered by the accused and that is erro-

simply point to the fact that the evidence could be character-

somehow not a "substantial wrong". Indeed, if conscriptive evidence renders a trial

The de facto compelled self-incrimination theory therefore

(3) The Origin of the Stillman Problems: a Proposed

abstract, but a "directional" rigidity - rigidity that favours the

a sensible course of action), one still must confront the prob-

invokes idealistic notions of the individual being protected

The problem is that the Remedy Principle directly conflicts

only factor at work, matters could be solved very easily. The

This tension between the Remedy Principle and the unde-

sented as requiring "admission" or "exclusion" of evidence). This result lends cre-

that an undercover agent's conversation with the accused in a

majority apparently conceded that if it were incorrect in its

(too much deception in a context where some deception is

106. Paciocco, supra, footnote 34, at p. 174.

2. A strong force operating on any judge is the Remedy

ies. By creating rules that "force" courts toward exclusion, the

violations with a scalpel where before they had only an axe.'

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