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When we talk about criminal law, we are talking about the individual’s encounter with the state. In this report, it is quite clear that the individual is in a weak position vis-à-vis the state. To restore the balance between the power of the state and the citizens, Parliament has enacted, in the Canadian Charter of Rights and Freedoms, which is a fundamental law that protects the rights and freedoms of all Canadian citizens. When a person is charged with a crime, he or she has certain rights under the Charter.

Thus, sections 7 to 11 of the Charter foresee procedural guarantees in the investigation and prosecution process. These rights include, but are not limited to, the right to a fair trial, the right to be presumed innocent, the right to be secure against unreasonable search and seizure, and the right not to be compelled to testify against oneself.

Section 24 (2) gives full effect to the rights thus enshrined. It is the appropriate remedy for violations of Charter rights.

What to do if a Charter right is violated?

Section 24 (2) of the Charter provides that if:

Evidence was obtained in a manner that infringes the rights or freedoms guaranteed by this Charter, such evidence shall be excluded if it is established, having regard to the circumstances, that its admission would bring the administration of justice into disrepute.

Rights-guaranteed-charter

An accused whose rights have been violated may therefore apply to exclude the evidence that has been obtained.

The first step is to establish a violation of Charter rights. You can read more about some rights that are frequently violated:

The next question is whether the evidence is being obtained in a manner that infringes the rights of the accused. Finally, if the answer to the second step is yes, the court will determine whether the admissibility of the evidence would bring the administration of justice into disrepute.

The connection between the evidence and the violation must be sufficiently close to permit the exclusion of the evidence obtained as a result of the violation.

Once the violation of rights has been established and the evidence has been obtained under conditions that infringe the rights of the accused, it must be determined whether the admission of the evidence would bring the administration of justice into disrepute.

On this question, the Supreme Court developed three criteria for analysis in the Grant decision:

  • The seriousness of the conduct of the state;
  • The impact of the violation on the rights of the accused;
  • Society’s interest in the case being decided on its merits.

What happens if the Judge excludes the evidence?

If the judge excludes evidence, the prosecution will not be able to use it. In the event that the judge excludes all evidence, it is clear that the prosecution will not be able to meet its burden of proving the guilt of the accused beyond a reasonable doubt. In the absence of evidence, the accused will be acquitted.

Ultimately, these Charter rights are essential to ensuring a fair trial and protecting the criminal rights of the accused. It is important for accused persons to understand their rights so that they can assert them and ensure that they receive a fair trial.

Each case remains a case in point. If you are charged with a criminal offence, contact us immediately. We will conduct a detailed analysis of the prosecution’s evidence to determine whether your Charter rights have been violated and make the necessary applications to have them excluded, if necessary.