Exclusions of Evidence under Charter Flashcards
Old s 24(2) test
old 24(2) was based on R v Collins, which considere seriousness, trial fairness, and disrepute if excluided. Lots hinged on trial fairness so there was some criticism. It has now been subsumed by the following test in R v Grant.
To exclude under s24(2)
(1) There must be a charter violation by a state agent
- -> ● The test in R v Buhay: Would the actions of the private actors not have occurred but for the intervention of state authorities? (ex police instruce security to open locker)
(2) The evidence must be “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter” (or “overall context” violates Charter.
● Causal connection btwn charter violation and obtaining of evidence (remoteness)
● Temporal and contextual nexus in addition to or alternate to causal connection
(3) Must establish that the admission of the evidence would bring the administration of justice into direpute.
● TEST: Balance seriousness of breach and significance of impact on accuseds protected interests against societies interests in adjudication. (done case by case, no mathematical precision) – see considerations
● Note: if good points under all 3, then courts lean toward exclusion.
What are considerations under 3rd branch of s24(2) test
● TEST: Balance seriousness of breach and significance of impact on accuseds protected interests against societies interests in adjudication. (done case by case, no mathematical precision)
○ Seriousness
■ Blameworthiness/ Good faith or Bat faith (ex did they know it was against charter)
■ Degree of departure from charter standards
■ Systemic / Institutional problems (slip up vs ongoing trend)
■ Pattern of violations
■ Necessity and emergency, either: (1) evidentiary (2) public safety
○ Impact on Accuseds Charter Protected Interests
■ Incriminatory statements = highest end,likely excluded
■ Bodily Samples = varies with context, manner taken, and kind of sample
■ Non bodily physical evodence = degree to which how it was discovered impacts charter interests and privacy interests of accused
■ Derivative evidence = generally significant impact on charter interests since stems from unconstitutionally obtained statement UNLESS:
● In effect it had little impact on charter interests
● Statement would have been made notwithstanding violation
● Likely that evidence would have been obtained even if no violation (discoverable)
■ Causation and discoverability (would have found - not could have)
○ Societal Interests in the Merits
■ Reliability
■ How critical is it to crowns case?
● Consider if exclusion harms truth seeking function, if it is make or break.
What is a court of competent jursidiction for s24(2) applications
Court of Competent Jurisdiction for Section 24(2) Applications
● Courts of superior jurisdiction have inherent plenary jurisdiction (same as high courts of england)
● Provincial courts, Courts of Appeal, SC, have statutory grants of jurisdiction over crim offences
● This excludes prelim inquiries and admin tribunals.
If s24(2) exclusion fails… what else can you do?
Exclusion Under s11(d) of Charter
● Possible to exclude under 11(d) if admission of evidence would result in an unfair trial.
● Rare but can be used if s24(2) fails.
● No need for charter violation, just effect on fairness
○ Unreliable manner of obtaining
○ Misleading by nature
○ Seriousness of misconduct in obtaining
○ Whether accused was compelled to self incrimination
■ (ex, came from foreign jurisdiction where it would have violated charter if charter applied)
● No need to consider it brings admin of justice into disrepute
S13 and 7 provide protection to persons compelled to make self incriminating statements
