To Exclude or Not to Exclude

On July 17th, 2009, the Supreme Court of Canada relesaed 5 rulings pertaining to the application of s. 24(2) of the Canadian Charter of Rights and Freedoms.

http://scc.lexum.umontreal.ca/en/index.html

In R. v. Grant, [2009] S.C.C. 32 the Court clarified principles germane to s. 24(2) of the Charter:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter‑infringing state conduct, (2) the impact of the breach on the Charter‑protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits. At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. At the third stage, a court asks whether the truth‑seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown’s case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.

Unlike rights violations in the United States, where fruit obtained from the poison tree is automatically excluded, Canada does not apply the same general rule. The worry I have with the current 24(2) regime is a kind of acceptance of so called trivial breaches. To allow the State to infringe on Charter Rights, even just a little, may result in a dangerous slippery slope....

David G. Chow
Criminal Defence Lawyer

www.calgarydefence.com