Difference between revisions of "Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)"
Jump to navigation
Jump to search
| Line 71: | Line 71: | ||
* To be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel (''[https://www.canlii.org/en/ca/scc/doc/1990/1990canlii123/1990canlii123.html?searchUrlHash=AAAAAQALciB2IGJyeWRnZXMAAAAAAQ&resultIndex=1 R v Brydges]'', [1990] 1 SCR 190). | * To be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel (''[https://www.canlii.org/en/ca/scc/doc/1990/1990canlii123/1990canlii123.html?searchUrlHash=AAAAAQALciB2IGJyeWRnZXMAAAAAAQ&resultIndex=1 R v Brydges]'', [1990] 1 SCR 190). | ||
The ''Charter'' right to counsel is thus triggered where a person is arrested or detained. Detention under sections 9 and 10 of the ''Charter'' refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that they had no choice but to comply. See [https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html?searchUrlHash=AAAAAQAJciB2IGdyYW50AAAAAAE&resultIndex=1 'R v Grant'', [2009<nowiki>]</nowiki> 2 SCR 353], for more details. | The ''Charter'' right to counsel is thus triggered where a person is arrested or detained. Detention under sections 9 and 10 of the ''Charter'' refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that they had no choice but to comply. See [https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html?searchUrlHash=AAAAAQAJciB2IGdyYW50AAAAAAE&resultIndex=1 ''R v Grant'', [2009<nowiki>]</nowiki> 2 SCR 353], for more details. | ||
Under section 10(b), the arresting officer has a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel ([https://www.canlii.org/en/ca/scc/doc/1987/1987canlii67/1987canlii67.html?searchUrlHash=AAAAAQAMciB2IG1hbm5pbmVuAAAAAAE&resultIndex=1 ''R v Manninen'' [1987<nowiki>]</nowiki> 1 SCR 1233]). The arrested person has both the right to Legal Aid counsel and the right to be informed of this right: see [https://www.canlii.org/en/ca/scc/doc/1990/1990canlii123/1990canlii123.html?searchUrlHash=AAAAAQALciB2IGJyeWRnZXMAAAAAAQ&resultIndex=1 ''R v Brydges'' [1990<nowiki>]</nowiki> 1 SCR 190] and [https://www.canlii.org/en/ca/scc/doc/1994/1994canlii65/1994canlii65.html?searchUrlHash=AAAAAQALciB2IHByb3NwZXIAAAAAAQ&resultIndex=1 ''R v Prosper'' [1994<nowiki>]</nowiki> 3 SCR 236]. Some exceptions regarding the timing and access to these rights exist. | Under section 10(b), the arresting officer has a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel ([https://www.canlii.org/en/ca/scc/doc/1987/1987canlii67/1987canlii67.html?searchUrlHash=AAAAAQAMciB2IG1hbm5pbmVuAAAAAAE&resultIndex=1 ''R v Manninen'' [1987<nowiki>]</nowiki> 1 SCR 1233]). The arrested person has both the right to Legal Aid counsel and the right to be informed of this right: see [https://www.canlii.org/en/ca/scc/doc/1990/1990canlii123/1990canlii123.html?searchUrlHash=AAAAAQALciB2IGJyeWRnZXMAAAAAAQ&resultIndex=1 ''R v Brydges'' [1990<nowiki>]</nowiki> 1 SCR 190] and [https://www.canlii.org/en/ca/scc/doc/1994/1994canlii65/1994canlii65.html?searchUrlHash=AAAAAQALciB2IHByb3NwZXIAAAAAAQ&resultIndex=1 ''R v Prosper'' [1994<nowiki>]</nowiki> 3 SCR 236]. Some exceptions regarding the timing and access to these rights exist. | ||
| Line 163: | Line 163: | ||
S. 24 (2) 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 | S. 24 (2) 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(2) of the ''Canadian Charter of Rights and Freedoms'' provides a remedy to those whose ''Charter'' rights have been violated and are later in a proceeding where evidence obtained related to that ''Charter'' violation is sought to be introduced. 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 permitted to be used in a trial against the person whose ''Charter'' rights were breached. 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 R v Grant 2009 SCC 32). 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 for more information on the section 24(2) test. | Section 24(2) of the ''Canadian Charter of Rights and Freedoms'' provides a remedy to those whose ''Charter'' rights have been violated and are later in a proceeding where evidence obtained related to that ''Charter'' violation is sought to be introduced. 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 permitted to be used in a trial against the person whose ''Charter'' rights were breached. 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 ''R v Grant'' 2009 SCC 32). 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 for more information on the section 24(2) test. | ||
=== 1. Other ''Charter'' Remedies Obtained through S. 24(1) === | === 1. Other ''Charter'' Remedies Obtained through S. 24(1) === | ||