Difference between revisions of "Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)"

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 == H. Admission of evidence obtained illegally (24(2)) ==
-Section 24 of the ''Canadian Charter of Rights and Freedoms'' provides the remedy of exclusion of evidence implicated by the ''Charter'' violation. 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 on 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: i) the seriousness of the ''Charter'' infringing state conduct, ii) the impact of the ''Charter'' breach on the accused’s interest, and iii) society’s interest on the adjudication of the case on its merits (''R v Grant''). The burden is on the accused to establish on a balance of probabilities that evidence should be excluded under section 24(2).  See ''R v Harrison'' 2009 SCC 34, [2009] 2 SCR 494 for more information on the section 24(2) test.
 It is good practice to advise the Crown ahead of time before making a ''Charter'' argument. In the ''Charter'' notice the clinician 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''). Cite cases on which the clinician intends to rely.

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