7. Excluding Evidence under Section 24(1) of the Charter

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

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Section 24(2) applies only where unconstitutional investigation produces evidence. Evidence can be excluded under section 24(1) in one and possibly two other situations.

First, exclusion can occur under section 24(1) to remedy Charter violations that do not occur at the time the evidence is obtained, but which relate to that evidence. This form of exclusion is available, for example, to remedy an abuse of process by the Crown that affects the ability to evaluate evidence,198or where the Crown breaches the Charter by failing to disclose. The standards for exclusion are high. In R. v. Bjelland, the Supreme Court of Canada ruled that "under s.24(1) . . . exclusion is only available as a remedy where its admission would result in an unfair trial or would otherwise undermine the integrity of the justice system," and where a "less intrusive remedy cannot be fash-

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ioned to safeguard the fairness of the trial process and the integrity of the justice system."199Curiously, when the impact of exclusion on the fairness of the trial and the integrity of the criminal justice system are considered, the seriousness of the offence is a relevant and proper consideration under section 24(1),200even though it is a neutral factor under section 24(2).

Second, exclusion may also be occurring under section 24(1) where the very receipt of the evidence by a court would breach the Charter, such as where the admission of statutorily compelled statements would compromise self-incrimination principles.201This was the approach taken in R. v. White, where the trial judge used section 24(1) to reject the statutorily compelled evidence.202Justice Iacobucci chose not to interfere with this reasoning, but did leave open the possibility that exclusion should occur automatically under section 7. There is merit in this. Since it would be a Charter violation to admit such evidence, the court should arguably reject it without regard to the remedial provision. Indeed, section 24(1) provides for discretionary relief, something that is inappropriate where the receipt of the evidence would, ex hypothesi, constitute the Charter breach. When derivative evidence obtained from the compelled testimony is excluded under section 7, exclusion is not treated as a remedy. It occurs without resort to sections 24(1) or 24(2). This is the preferred view - where admission itself would violate the Charter (for example, because it would contravene self-incrimination principles...

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