5,109
edits
Difference between revisions of "Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)"
From Clicklaw Wikibooks
Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX) (view source)
Revision as of 01:16, 30 August 2022
, 01:16, 30 August 2022→H. Admission of Evidence Obtained in Contravention of Charter: (24(2))
| Line 168: | Line 168: | ||
(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 ''[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. | 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 | The type of remedy a court gives normally depends on the type of government action that has violated 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 bestow other kinds of remedies, like halting a prosecution (a judicial stay of proceedings), ordering one side to pay the other side’s legal costs, or declaring that certain rights were violated. | ||
=== 1. Other Charter Remedies Obtained through S. 24(1) === | === 1. Other Charter Remedies Obtained through S. 24(1) === | ||
S. 24(1) permits a court to craft any remedy it considers appropriate and just in the circumstances. One commonly sought remedy is a judicial stay of proceedings under s. 24(1) for an abuse of process. Such a remedy is rare, however, and is only provided in the clearest of cases. Recent case law has somewhat reinvigorated the doctrine of abuse of process and examined the potential for alternate remedies to judicial stays of proceedings where police conduct was abusive | S. 24(1) permits a court to craft any remedy it considers appropriate and just in the circumstances. One commonly sought remedy is a judicial stay of proceedings under s. 24(1) for an abuse of process. Such a remedy is rare, however, and is only provided in the clearest of cases. Recent case law has somewhat reinvigorated the doctrine of abuse of process and examined the potential for alternate remedies to judicial stays of proceedings where police conduct was abusive (see ''[https://www.canlii.org/en/ca/scc/doc/2014/2014scc52/2014scc52.html?searchUrlHash=AAAAAQAIciB2IGhhcnQAAAAAAQ&resultIndex=1 R v. Hart]'', 2014 SCC 52). For more in-depth information on s. 24(1), it is highly recommended that legal advice be sought. | ||
{{LSLAP Manual Navbox|type=chapters1-7}} | {{LSLAP Manual Navbox|type=chapters1-7}} | ||
