Rights and Freedoms
The Canadian Charter of Rights and Freedoms sets out a number of rights and freedoms that apply to every single person in Canada. Â This article will provide a brief introduction to the Charter and the remedies that are available under Section 24.
The rights and freedoms protected by the Charter are central to the practice of criminal law. Â The rights protect individuals from state conduct and include:
- The right to be free from an unreasonable search and seizure (Section 8);
- The right to not be arbitrarily detained (Section 9);
- The right to be advised of the reasons for your detention and the right to speak to a lawyer upon detention (Section 10); and
- The right to be tried within a reasonable amount of time and the right to be presumed innocent (Section 11 b & d).
The CharterÂ is an exceptionally important document due to the remedies that are available. Â Because these remedies include a stay of proceedings or the exclusion of evidence, itÂ is critical that your lawyer examine your case for any Charter breaches. Â Your lawyer must advise you of a CharterÂ breach the same way he Â would have to advise you if there was a defence to your charge. Â Illegal searches that lead to seizures of contraband and unlawful detentions are rights that seem to be violated regularly. Â
However, even if the court finds that there was a CharterÂ breach, it does not mean that evidence that was illegally obtained will be excluded. Â There is a two step process that the court must go through before making a final decision. Â The first step was determining whether there was a Charter breach. Â The second step looks at whether the administration of justice would be brought into disrepute if the evidence that was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter were excluded (Section 24(2)).
In Canadian law, there is not an automatic exclusion rule. Â Instead, the judge is directed to examine whether a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. Â A judge who is asked to exclude evidence must assess and balance the effect of admitting the evidence on society’s confidence in the administration of justice. Â The three questions the judge must examine when making this decision are: the seriousness of the state-infringing conduct, the impact of the breach on the Charter-protected interest of the accused and society’s interest in adjudicating the case on its merits. Â If the judge is going to exclude the evidence, the judge must find that on a balance of probabilities the admission of evidence would bring the administration of justice into disrepute.
Charter litigation is different from other types of cases. Â Cases that involve Charter issues are often complex and involve cross examining police officers instead of civilian witnesses. Â Mr. Luft, a Toronto criminal lawyer, has successfully argued that evidence should be excluded in many cases. Â To discuss your case with Morrie Luft, contact him at 416-433-2402 or send him an email.