I. Remedies in the Criminal Process

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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One of the most difficult issues the courts face is determining the appropriate remedy for a Charter breach. Typically, Charter rights are asserted by accused persons because the police have obtained incriminating evidence as a result of the conduct that forms the basis for the Charter claim. A judicial decision that a Charter right has been infringed will have a declaratory effect. The authorities may be expected to abide by court rulings and alter their practices and procedures to comply with the dictates of the Charter in subsequent cases. But what of the individual who is before the court and whose rights have been infringed? A decision that merely declares that his or her rights have

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been infringed will ring hollow if no further action is taken. Can a system of justice premised on respect for certain fundamental rights countenance continuation of the proceedings or reliance on evidence obtained in violation of those rights? On the other hand, if the evidence obtained as a result of the Charter breach is not admitted by the court, relevant facts are excluded and the search for the truth is inhibited. As a result, a guilty person may go free. Is exclusion of evidence acceptable in these circumstances? Is this an appropriate way to control police behaviour?

Chapter 17 considers remedial issues in general, while the specific issues of stay of proceedings and exclusion of evidence in criminal proceedings is dealt with here. Section 24 of the Charter provides as follows:

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

1) Stay of Proceedings

In certain cases, a prosecution may be so tainted by the Charter breach that a stay of proceedings is appropriate. A stay of proceedings is an order that forbids the prosecutor from taking any further steps against the accused on the charges before the court. It is obviously a drastic remedy. Before the Charter, stays were available in cases where the court found that a prosecution amounted to an abuse of the court’s process. Since the Charter’s enactment, the common law stay has been assimilated and adapted as a Charter remedy. The Supreme Court had made it clear that, given its severity, the remedy of a stay should be granted only

"in the clearest of cases," where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.186

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A stay of proceedings will be ordered only if the prejudice caused by the abuse will be aggravated by the trial and no other remedy is reasonably capable of removing that prejudice. In cases of uncertainty, the judge will balance the interests in favour of a stay against society’s interest in having a final decision on the merits.187The minimum remedy for a violation of the accused’s right to full answer and defence will be the order of a new trial, and a stay of proceedings will be appropriate and just only in the exceptional circumstances of an irreparable violation of the right.188In contrast, the Supreme Court decided in the early years of the Charter that a stay of proceedings was the minimum remedy for a violation of the right to a trial in a reasonable time under section 11(b) of the Charter, on the basis that a trial after that time would not be fair and would aggravate the prejudice caused by the pre-trial delay.189The Court has deferred to the discretion of a trial judge who stayed proceedings in relation to charges against a prison guard after having determined that the prison guard assaulted a handcuffed and chained prisoner.190

2) Exclusion of Evidence

The most commonly ordered remedy for a breach of Charter rights in the criminal process is exclusion of evidence. Prior to the enactment of the Charter, illegally obtained evidence was admissible, even where it was obtained in a manner that violated a right guaranteed by the Canadian Bill of Rights.191Section 24(2) of the Charter alters that rule but stops short of a presumptive exclusionary rule.

The first question is whether the "evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter." The issue here is the extent to which it must be shown that there was a causal link between the Charter breach and obtaining the evidence. Evidence found following an unreasonable search may well have been uncovered in any event. Was it obtained "in a manner which violated" a Charter right? The Supreme Court has interpreted these words of section 24(2) not to require a strict causal connection. In R v Strachan,192Dickson CJC stated that the inquiry should focus on the "entire chain of events" and that, ordinarily, a temporal link between

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the Charter breach and discovery of the evidence will be sufficient. The case involved a search and arrest at the home of the accused. The police refused to allow the accused to telephone his lawyer and proceeded to find drugs. Despite the tenuous causal connection between the Charter breach of denial of counsel and the discovery of the drugs, the Court found that section 24(2) was engaged. In the end, the majority held that the drugs could be admitted into evidence, but the case stands for the proposition that a strict causal relationship between the Charter breach and the discovery of the evidence is not required.

If this initial hurdle is satisfied, the Court must turn to a second issue and the central component of section 24(2), namely, whether admission...

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