Section 24(2): Does the Truth Cost Too Much? (Canada‪)‬

"Truth, like all other good things, may be loved unwisely--may be pursued too keenly--may cost too much." (1) The Supreme Court of Canada in its 2009 Grant trilogy (2) significantly shifts the Canadian rationale for excluding probative evidence from a criminal trial when a state actor has breached a defendant's constitutional rights as guaranteed by the Charter. (3) The majority decision from R v Grant has broadened the trial judge's discretion to either exclude or include evidence under section 24(2) of the Charter in this new test for determining when a criminal investigation may bring the system of justice into disrepute. (4) In rewriting the test for Charter exclusion, the Court has abandoned the requirement that trial judges protect the fairness of the criminal trial by automatically excluding both conscripted testimony from the criminally accused and any otherwise non-discoverable evidence uncovered through police investigations arising from comments made during the forced testimony. (5) Trial judges may now accept into the record otherwise undiscoverable derivative physical evidence collected by police and the Crown may now attempt to use this evidence in its prosecutions. (6) The Charter remedy of exclusion which had, prior to Grant, barred this evidence also supported the expectation that the Crown bear the burden of proving its own case and respected the principle that the state cannot force the criminally accused to self-incriminate. This created a balance of power between the criminally accused and the state which may be upset if Grant is applied in a fashion that regularly allows certain kinds of evidence to be admitted into the trial record.