3. The Application for Exclusion

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

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3. 1) The Technical Components Introduced

Accused persons must apply to the trial court to have unconstitutionally obtained evidence excluded. Before a court can even consider whether to exclude the evidence, the applicant must establish, on the balance of probabilities, that his Charter rights have been breached by a state agent.

The phrase in subsection 24(2), "Where, in any proceedings under subsection (1)," makes it clear that the exclusionary remedy operates only

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after the preconditions of subsection 24(1) have been complied with. Subsection 24(1) requires:

(i) an application to,

(ii) a court of competent jurisdiction,

(iii) brought by "anyone whose rights or freedoms, as guaranteed by the Charter, have been infringed or denied.

3. 2) The Application

A number of appellate courts have supported the proposition that impromptu Charter applications should not be made.23Still, practices vary. Some courts require formal notices of motion to be served and filed. Others allow mere submissions to suffice. Often these applications are dealt with during a voir dire conducted at the start of the trial, particularly in jury cases. Sometimes the voir dire is held during the trial, at the time the evidence is presented.

Whatever procedure is in use in the jurisdiction or court in question, it remains true that criminal courts have traditionally been reluctant to deny relief because of procedural flaws. This is because substance is generally considered to be more important than form when it comes to the rights of accused persons.24It also happens occasionally that the Charter breach does not become apparent before the evidence in the case unfolds. Hence, the "application" requirement is not always applied rigorously. Indeed, it has been held that where "uncontradicted" evidence discloses a significant Charter violation, the trial judge is obliged to enter into an inquiry to determine whether that infringement occurred, even in the absence of an application by the aggrieved individual.25This is particularly so where the accused is unrepresented.26

3. 3) A Court of Competent Jurisdiction

The application must be made to "a court of competent jurisdiction." "[A] court of competent jurisdiction . . . is a court that has jurisdiction over the person and the subject matter and has, under the criminal or penal law, jurisdiction to grant the remedy."27For the purposes of the

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remedy of exclusion of unconstitutionally obtained evidence, this will be the trial court. Even though any superior court can be a court of competent jurisdiction for the purpose of granting Charter relief, subsection 24(2) applications are brought before the trial court, typically at the time the impugned evidence is being offered for admission. Canadian courts have disapproved of holding "suppression hearings" before the start of a trial.

The significant limitation that is posed by the "court of competent jurisdiction" requirement is that judges conducting preliminary inquiries cannot exclude evidence as a subsection 24(2) remedy.28The jurisdiction of preliminary inquiry judges is derived exclusively from statute and does not include the power to grant Charter relief. Hence, accused persons are sometimes committed to stand trial at a preliminary inquiry after the admission of unconstitutionally obtained evidence that will not be admissible at their trials. Similarly, judicial officers conducting bail hearings and parole board panels are not courts of competent jurisdiction that can refuse to consider information on...

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