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Difference between revisions of "Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)"
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Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX) (view source)
Revision as of 01:09, 30 August 2022
, 01:09, 30 August 2022→H. Admission of evidence obtained in contravention of Charter (24(2))
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Where a police officer, on reasonable and probable grounds, believes a person has alcohol or drugs in their system, that officer may require a sample of breath to be produced. A person who refuses to comply with a valid breath demand without a reasonable excuse for refusing may face criminal charges for failure to provide a breath sample. See '''Chapter 13: Motor Vehicle Law''' for more information. | Where a police officer, on reasonable and probable grounds, believes a person has alcohol or drugs in their system, that officer may require a sample of breath to be produced. A person who refuses to comply with a valid breath demand without a reasonable excuse for refusing may face criminal charges for failure to provide a breath sample. See '''Chapter 13: Motor Vehicle Law''' for more information. | ||
== H. Admission of | == H. Admission of Evidence Obtained in Contravention of ''Charter'': (24(2)) == | ||
It is good practice to advise the Crown ahead of time before making a ''Charter'' argument. In the ''Charter'' notice, the accused should provide the Crown with sufficient particulars of the argument, including the alleged breach, the remedy sought | :'''NOTE:''' It is good practice to advise the Crown ahead of time before making a ''Charter'' argument. In the ''Charter'' notice, the accused should provide the Crown with sufficient particulars of the argument, including the alleged breach, the remedy sought and the witnesses required for the application (''Voir Dire''). The accused should cite cases on which they intend to rely. | ||
Section 24 – (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. | Section 24 – (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. | ||
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(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. | (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. | ||
Section 24 of the ''Canadian Charter of Rights and Freedoms'' provides remedies to those whose ''Charter'' rights have been violated. The burden lies on the applicant to establish a ''Charter'' violation. The standard is based on a balance of probabilities. Once the ''Charter'' violation is proven, the focus shifts | Section 24 of the ''[https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html Canadian Charter of Rights and Freedoms]'' provides remedies to those whose ''Charter'' rights have been violated. The burden lies on the applicant to establish a ''Charter'' violation. The standard is based on a balance of probabilities. Once the ''Charter'' violation is proven, the focus shifts to matters concerning the possible effects on the fairness of the trial if the evidence was admitted. The three factors to be balanced in order to determine if the evidence should be excluded are (1) the seriousness of the ''Charter'' infringing state conduct, (2) the impact of the ''Charter'' breach on the accused’s interest, and (3) society’s interest on the adjudication of the case on its merits (see ''https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7799/index.do R v Grant'', [2009] 2 SCR 353). The burden is on the accused to establish on a balance of probabilities that evidence should be excluded under section 24(2). See ''[https://www.canlii.org/en/ca/scc/doc/2009/2009scc34/2009scc34.html?searchUrlHash=AAAAAQAMciB2IGhhcnJpc29uAAAAAAE&resultIndex=1 R v Harrison]'' 2009 SCC 34 for more information on the section 24(2) test. | ||
The type of remedy a court gives normally depends on the type of government action that violates the ''Charter''. If a government official took the action – for example, a police officer conducted an unreasonable search – the court will give an individual remedy that only applies to the person whose rights were breached (i.e., the court may say that the drugs found during the illegal search cannot be used as evidence in the criminal trial. This helps the accused person, but it doesn’t change the law for anyone else). In other cases, the court may be able to do something else, like stop a prosecution (a judicial stay of proceedings), order one side to pay the other side’s legal costs, or declare that certain rights were violated. | The type of remedy a court gives normally depends on the type of government action that violates the ''Charter''. If a government official took the action – for example, a police officer conducted an unreasonable search – the court will give an individual remedy that only applies to the person whose rights were breached (i.e., the court may say that the drugs found during the illegal search cannot be used as evidence in the criminal trial. This helps the accused person, but it doesn’t change the law for anyone else). In other cases, the court may be able to do something else, like stop a prosecution (a judicial stay of proceedings), order one side to pay the other side’s legal costs, or declare that certain rights were violated. | ||
