Section 8

Lamer began by examining if the search violated Collins rights under section 8 that protects individuals against unreasonable search and seizure. A search can only be reasonable, Lamer held, if it met three requirements:

1. the search must be authorized by law;
2. the law itself must be reasonable;
3. the manner in which the search is carried out must be reasonable.

In this way, the Supreme Court disagreed with some lower courts, and some American jurisprudence, in holding that an illegal search was automatically unreasonable.

Lamer J. concluded that, since the Crown had not established that the search had met the requirements of section 10 of the Narcotics Control Act, it was not authorized by law. Therefore, it failed the first prong of the three-part test and was an unreasonable search under s. 8 of the Charter.

Section 24(2)

Once a violation was found, the case turned on the meaning of section 24(2) which said that once a violation of an individual's charter rights have been found, the evidence obtained through the violation must be excluded if its inclusion would bring the administration of justice into disrepute.

Lamer examined the meaning of "disrepute". He rejected the previous use of the term established in Rothman v. The Queen [1981] 1 S.C.R. 640 which suggested evidence should be excluded on grounds that it would "shock" the community. Instead, he stated, the standard should be lower. He does not give a clear definition of "disrepute" but instead gives a set of three weighted factors to determine if there has been disrepute. The factors consist of:

1. factors affecting the fairness of the trial,
2. factors relevant to the seriousness of the violation; and
3. factors relevant to the effect of excluding the evidence.

The method of analyzing the first set of factors was presented in R. v. Stillman which produced the "Stillman test". This analysis includes looking at the nature of the evidence and whether there would have been any alternative means of obtaining the evidence.

The second point of analysis examines whether admission of the evidence would implicitly condone the illegal practices of the police. The courts focus on the manner in which the evidence was obtained. This includes factors such as whether it was done in good faith. Namely, was it inadvertent, merely technical, or whether it was deliberate or wilful. As well, the courts can consider whether there was any exigent circumstances, urgency, or necessity in the act.

The third set of factors look at the effect of the exclusion on the repute of the administration of justice. The effect of the admission must be weighed against its exclusion. The courts compare the seriousness of the breach and the fairness of the trial against the importance of the evidence in the Crown's case and the overall.

The question under s. 24(2) is whether the system's repute will be better served by the admission or the exclusion of the evidence, and it is thus necessary to consider any disrepute that may result from the exclusion of the evidence. In my view, the administration of justice would be brought into disrepute by the exclusion of evidence essential to substantiate the charge, and thus the acquittal of the accused, because of a trivial breach of the Charter.