2. The Current Law Introduced

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

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2. 1) The Law Summarized

Subsection 24(2) provides:

24. (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.

This provision is the primary basis for excluding evidence under the Charter.20A party seeking exclusion on the basis that evidence has been obtained unconstitutionally must therefore satisfy the court on the balance of probabilities that each of the components of subsection 24(2) have been met. Where those preconditions are satisfied, the evidence must be excluded. Where they are not, it cannot be excluded by way of a Charter remedy, even though the evidence may have been obtained unconstitutionally. In propositional form, the law provides that

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 her Charter rights have been breached by a state agent. If the accused is successful, the court will

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go on to consider whether each of the two exclusionary requirements has been met:

The First Requirement: "obtained in a manner"

Evidence can be excluded under subsection 24(2) solely where it has been "obtained in a manner" that breached the Charter rights of the applicant. Although a non-remote causal connection between the breach and the discovery of the evidence will satisfy the "obtained in a manner" requirement, a causal connection is not strictly required. Instead a generous approach is to be taken. Courts should examine whether there is a sufficient connection, given temporal, contextual, and/or causal factors, for it to be said that the breach and the discovery are part of the same transaction or course of conduct. Where this is so, the evidence has been tainted by the Charter breach, satisfying the "obtained in a manner" requirement.

The Second Requirement: "The admission of the evidence in all of the circumstances [c]ould bring the administration of justice into disrepute."

Where evidence has been obtained in a manner that violates the Charter, a court will exclude it if (1) the breach is serious enough and (2) the impact on the Charter-protected interests of the accused is significant enough to (3) outweigh society’s interest in the adjudication of the case on its merits. In conducting this balancing exercise, the court is to assess each of these three factors to determine whether a reasonable person, fully informed of the all of the circumstances and the values underlying the Charter, would conclude that the admission of the evidence could bring the administration of justice into disrepute. When asking this question, the focus is on the damage that condoning the Charter violation by accepting its fruits for admission could do to the long-term interest in maintaining the integrity and public confidence in the justice system.

The seriousness of the breach - Gauging the seriousness of the Charter-infringing state conduct involves...

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