Remedies for Unreasonable Search and Seizure

• Author: Susanne Boucher & Kenneth Landa
• Pages: 262-281

262

This chapter will address the most common remedies for breaches of the

right against unreasonable search and seizure. The chapter begins with a

discussion of Charter remedies, in particular the exclusion of evidence from

trial proceedings under section 24(2) of the Charter, and finishes with a dis-

cussion of the availability of the non-Charter prerogative remedies, such as

certiorari, to quash an investigative order.

A. SECTION 24 HARTER REMEDIES

Section 24 of the Charter grants the court the power to provide remedies, or

“Charter relief,” for violations of its protections. Accordingly, it is this sec-

tion that gives the Charter its teeth and gives life to the protections afforded

by the Charter’s guarantees. The section reads as follows:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter,

have been infringed or denied may apply to a court of competent jurisdic-

tion 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 evi-

dence was obtained in a manner that infringed or denied any rights or free-

doms 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.

chapter 9

c

Remedies for Unreasonable Search and Seizure

1) Starting the Process: Giving Notice of Motion

Charter relief under section 24 is typically obtained from the court by way of

a pretrial motion.1Evidence in support of the motion is received outside the

presence of the jury (or outside the trial proper), during a voir dire.2

The accused generally commences the process by objecting to the

admissibility of the evidence in question, optimally before the Crown prof-

fers the evidence.3Prior objection is preferable, especially in the case of a

jury trial; if the accused waited to object until the jury heard the evidence,

mistrials could result. This objection can be made by filing an application in

writing that specifies which Charter right has allegedly been breached.4If the

accused is challenging an authorization to intercept private communication,

the jurisprudence requires specific notice; in R. v. Parmar,5Watt J. held that

an application to set aside an authorization ought to be commenced by fil-

ing, on reasonable notice to the prosecutor and other accused persons, a

notice of application that contains, inter alia, the following information:

(i) the date and place of hearing;

(ii) the nature of order requested;

(iii) the specific ground upon which the application is founded; and

(iv) the documentary and other evidence to be relied upon by the applicant.

The notice of application should not only identify the orders to be

impeached but equally should record, in precise terms, the nature of relief

requested, including any ancillary orders such as production of the depon-

ent for the purposes of cross-examination upon his supportive affidavit on

the return of the application. The grounds upon which the application is

founded should be articulated in the notice of application with specificity.

Conclusory statements such as:

(i) the affidavit of the affiant fails to fully, frankly and fairly disclose the

basis for the application for the Part IV.1 authorization to intercept pri-

vate communications, or

1R. v. Mills, [1986] 1 S.C.R. 863, 26 C.C.C. (3d) 481 (S.C.C.) [Mills] at 494–95; R. v.

Clauson (1986), 31 C.C.C. (3d) 286 (Alta. C.A.) [Clauson] at 287.

2Clauson, ibid. at 288.

3R. v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.) [Kutynec] at 296.

4Clauson, above note 1 at 288. The rules of criminal procedure of the particular

court or the common law jurisprudence of the province may require notice in writ-

ing or may set out a specific notice period, or notice may simply be given orally:

Kutynec, ibid.

5R. v. Parmar (1987), 37 C.C.C. (3d) 301 (Ont. Gen. Div.).

Remedies for Unreasonable Search and Seizure • 263