Ontario Court of Appeal parses s. 24(2) Charter violation in child sex case

Law360 Canada (October 7, 2026, 8:38 AM EDT) --

John L. Hill

The Ontario Court of Appeal’s decision in R. v. Gauthier, 2026 ONCA 569 significantly clarifies the proper application of s. 24(2) of the Canadian Charter of Rights and Freedoms.

The court emphasized that exclusion of evidence is not determined solely by whether police misconduct caused the discovery of the evidence. As the document infers other unconstitutional police conduct during the investigation can be relevant to whether admitting that evidence would bring the administration of justice into disrepute.

The Waterloo Regional Police Service began investigating Gauthier after receiving a tip from the U.S. National Center for Missing & Exploited Children that a child sexual abuse image had been uploaded to a Skype account associated with an IP address in Cambridge, Ont. Police obtained a production order and then a search warrant for Gauthier’s home.

During the search, although not arrested, Gauthier was detained. Police failed to properly advise him of his s. 10(b) right to counsel. Police never told him he was detained, informed him of free legal advice or gave him the duty counsel’s number. This breach lasted six hours, during which police questioned him about the Skype account and later about the image found on his laptop.

The trial judge excluded Gauthier’s statements but admitted the computer evidence, reasoning that the police seized it lawfully and did not discover it as a result of the breach.

Eleven days later, police arrested Gauthier and conducted a routine strip search before bail court. The trial judge found this violated s. 8 under R. v. Golden, 2001 SCC 83 because it lacked individualized justification. However, she did not consider this breach when deciding whether to exclude the computer evidence.

The Court of Appeal held that this omission was an error in principle, citing R. v. McGuffie, 2016 ONCA 365 and R. v. Samuels, 2024 ONCA 786. The strip search was a relevant factor that had to be considered once the s. 24(2) inquiry was triggered.

The court relied on R. v. Boutros, 2018 ONCA 375, which held that once s. 24(2) is engaged, police conduct throughout the investigation and even the prosecution may be relevant. The absence of a causal link between a breach and the evidence does not make the breach irrelevant.

The court also cited R. v. Robertson, 2019 BCCA 116, distinguishing between the threshold connection required to trigger s. 24(2) and the evaluative stage, at which, once triggered, all relevant police misconduct may be considered. Thus, even though the strip search occurred after the evidence was seized, it still informed the assessment of the seriousness of the police conduct.

The court also referenced R. v. Harrison, 2009 SCC 34, where misconduct occurring well after the investigation, including false testimony, was relevant to the analysis in R. v. Grant, 2009 SCC 32, which established a test for determining whether evidence obtained through a constitutional violation ought to be excluded. This reinforced that misconduct need not occur within a single chain of events.

The court stressed a broader principle from Grant: many Charter breaches never reach the courts because they do not produce evidence. Therefore, courts must consider additional breaches in the same investigation to discourage systemic disregard for constitutional rights.

Here, two officers from the same service demonstrated ignorance of long‑established Charter standards: one regarding s. 10(b), the other regarding strip searches.

In the court’s Grant analysis, it considered the seriousness of the misconduct and its impact on Charter-protected interests.

When assessing the seriousness of the police misconduct, the court strongly favoured exclusion. The six-hour s. 10(b) breach involved questioning intended to elicit incriminating information. The document notes that the conduct showed “blatant ignorance of [the police officer’s] obligation under s. 10(b).” Further, the police conducted the strip search solely because Gauthier was being held for bail court, with no notes or individualized grounds. Officers admitted this was routine practice, suggesting systemic disregard for Charter standards.

In assessing the impact on Charter-protected interests, the court found the impact significant. Gauthier was deprived of legal advice for six hours while being questioned. The court relied on R. v. Rover, 2018 ONCA 745, which describes the right to counsel as a “lifeline” for detainees.

However, the court acknowledged that the absence of a causal link between the breaches and the computer evidence somewhat mitigated the impact, citing R. v. O’Brien, 2023 ONCA 197.

The court also clarified the distinction between discoverability and causation, relying on R. v. Cole, 2012 SCC 53: Discoverability concerns evidence obtained unconstitutionally but that could have been obtained lawfully. Causation concerns evidence obtained because of the breach.

The computer evidence was reliable and excluding it would end the prosecution. Such a factor would ordinarily favour admission. However, the court held that this did not outweigh the seriousness and systemic nature of the misconduct. It cited R. v. Lira, 2023 ONCA 437 for the principle that a lack of causal connection may reduce the need for exclusion, but concluded that, here, the misconduct was too serious to ignore.

The Court of Appeal held that “the long-term repute of the administration of justice requires the sacrifice of the short-term benefit of an adjudication on the merits of this case.” It excluded the computer evidence, quashed the convictions and entered acquittals on all counts.

The Gauthier decision underscores several key principles:


Ultimately, the court reaffirmed that constitutional rights must be meaningfully protected and that systemic disregard for Charter standards cannot be tolerated, even at the cost of losing reliable evidence.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). His most recent book, Acts of Darkness (Durvile & UpRoute), was shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com.

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