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)

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→‎H. Admission of evidence obtained illegally (24(2))
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== H. Admission of evidence obtained illegally (24(2)) ==
== H. Admission of evidence obtained illegally (24(2)) ==
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.


(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 theproceedings would bring the administration of justice into disrepute.  
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.


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 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.


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 helps just the victim of the search (in that example, the court may say that the drugs found during the illegal search can't 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.
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.


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.
(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 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.
 
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 helps just the victim of the search (in that example, the court may say that the drugs found during the illegal search can’t 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.
 
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.
 
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. The most 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 only 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 for example R v. Hart 2014 SCC 52 For more in depth information on s. 24(1), it is highly recommended that legal advice be sought.  


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