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The rule says that if any evidence is OBTAINED by illegal means, it cannot be used against the accused.

If a law violates our rights under the Charter, the evidence gathered under it will be excluded under section 24(2) of the Charter.

T/F?

What is real evidence?

Provide an example of real evidence.

·      A knife is a real piece of evidence because it is physical material.

·      For example, gun, bloodstain clothes, videotapes, or documents found at a crime scene are also real evidence.

Real evidence:

What does section 652 state?

·      Section 652 of the criminal code allows the judge or a judge and jury to take a view of any place, person, or thing. Such observations would involve the examination of real evidence.

Statements:

Witness statements are usually called?

Do police obtain statements from accused persons?

·      Witness statements are generically called “out-of-court” statements

·      Police acquire statements from witnesses for their investigations. For instance, when police arrive at a scene they will interview people who claim to have eye-witnessed an event.

·      Sometimes police obtain statements from suspects and accused persons. Accused person’s statements are treated differently in criminal law than other person’s statements.

The Common Law: Illegally obtained evidence:

·      At common law, real evidence was not excluded at trial when an accused rights were violated in obtaining such evidence.

·      The common law position on the admissibility of illegally obtained real evidence was endorsed (approved) by the majority of Supreme Court Of Canada in the Wray case.

What is the 

The fruit of the poisonous Tree in the United States?

What is Inevitable Discovery ?

The fruit of the poisonous tree doctrine or (exclusionary rule) is intended to deter police from using illegal means to obtain evidence. 

The court developed the inevitable discovery exception, where evidence is admissible if the police can PROVE that they would inevitably have discovered the evidence anyway by lawful means, regardless of their illegal action.

What is the Canadian Bill of Rights:

·      The supreme court of Canada developed enforcement procedures under the bill of rights, which was not a constitutional document, but rather was ordinary legislation that had achieved quasi- constitutional status.

·      It protects human rights and fundamental freedom.

·      For example, in a case Hogan was taken to a police station for a Breathalyzer test and was denied his right to counsel contrary to the Bill of Rights. Faced with choosing between providing a sample of his breath, or being charged with refusing to do so, Hogan obliged the police officers.

1.     Under what circumstances would a court in Canada have excluded evidence under the common law before the introduction of the charter? What was the definition of “unfairness” under the common law?

• At common law real (physical evidence) was not excluded at trial when an accused’s rights had been violated in obtaining evidence. However, the court recognized a rare exception to the general admissibility of illegally obtained evidence. It held that it was only evidence that was “gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly, and that could therefore, be excluded.
• The definition of unfairness

1.     Provide examples of the types of remedies that can be granted under section 24(1) of the charter and the circumstances under which they could be granted?

What is section 24(1) of the charter?

·      Under section 24(1) the judge will decide which remedy is “appropriate in the circumstances”. 

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.

·      The court cannot exclude evidence under section 24(1) if section 24(2) applies that is if evidence was obtained in a manner that violated the accused rights under the charter.

·      The trial judge can also exclude evidence under common law if the evidence obtained in circumstances that result in a unfair trial

·      Judges will often enter a judicial stay of proceedings under section 24(1) of the charter, if an accused’s rights to be tried within a reasonable time has been violated under section 11(b)

·      The courts may adjourn a case where the crown has failed to disclose evidence (a violation of accused’s rights under section 7 of the charter, if it affects the accused’s ability to make full answer and defense).

·      Illegally seized goods might be ordered returned under section 24(1), and the court might order costs or damages paid to the aggrieved (hurt) person.

1.     What three purposes might be served by awarding damages for a charter breach?

The Supreme Court explained that Charter damages are a “unique” remedy under the ambit of s. 24(1). An award of Charter damages must serve one or more of the following objectives: A court can award damages under section 24(1) of the Charter in order to compensate a person for personal lost. 

1.     Compensation: Charter damages are to compensate the plaintiff for her personal losses and suffering as a result of the breach;

2.     Vindication: The damages are to vindicate the right by emphasizing its importance to society; and

3.     Deterrence: Charter damages may be awarded to deter state agents from future breaches.

1) Compensation for personal loss

Case example:

In R.C. v. Cybulski, 2017 ONSC 4331, the plaintiff was arrested without cause. A total of seven police officers were involved in detaining the plaintiff, transporting her to the police station, searching her, restraining her upper and lower limbs and leaving her naked in a cell for several hours before she was permitted to leave the Ottawa police station. The plaintiff pursued the officers and the Ottawa Police Services Board for both false arrest and false imprisonment. She also sought Charter damages.

The Superior Court of Justice awarded the plaintiff $90,000 in general damages, $120,000 for loss of earning capacity, and $37,226.84 for out-of-pocket and future expenses. In addition, the court awarded the plaintiff $7,500 in damages for the breach of her Charter rights.

When does section 24(1) apply and in what circumstances does section 24(2) apply?

·      If evidence was obtained in a manner that violates an accused’s rights, the evidence may be excluded under section 24(2) of the Charter, but never under section 24(1).

·      The “bottom line” is that if evidence is obtained in a manner which violates the accused’s rights, then section 24(2) is the appropriate section. However, if evidence is obtained without a violation of the accused’s rights, the evidence may be excluded under section 24(1) if the admission of the evidence would violate rights under the Charter. The evidence can also be excluded under the common law duty of the trial judge to exclude evidence that might render the trial unfair.

What is the “fruit of the poisonous tree” doctrine? How does it differ from the law under section 24(1) of the charter?

The fruit of the poisonous tree doctrine is intended to deter police from using illegal means to obtain evidence. For example, A doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was derived from evidence that was illegally obtained.

·      Section 24(1) states “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”. In this section the judge will decide which remedy is appropriate. But evidence cannot be excluded under section 24(1).

  Should the court be required to consider social science research when deciding whether to exclude evidence under section 24(2)? Why or why not?

1.     What does “obtained in a manner” mean under section 24(2) of the charter?

If evidence was not obtained in a manner then you may have access to section 24(1) of the charter, which requires you to practice or apply a remedy.

When examining whether the evidence was “obtained in a manner” that violated the accused’s rights (under Step 2 outlined above), the Supreme Court of Canada has rejected a causal connection test. It is not necessary that the Charter violation causes the evidence to be gathered or obtained. The judge is to look at the entire chain of events. Although there is no absolute need for a causal relationship, the Charter violation has to take place before or during the gathering or obtaining of the evidence. There has to be some sort of connection between the two that is not too remote.

1.     Is the application of section 24(2) of the charter a question of law or a question of fact?

It is a question of fact Section 24(2) analysis assumes that a breach has already been established and that the breach will bring the administration of justice into disrepute. The burden then shifts to the Crown to prove that in fact the administration of justice will not be brought into disrepute.

1.     What is the Grant framework s. 24(2)? What are the three factors the court will consider?

In effect the supreme court of Canada established a thee-pronged approach to the application of section 24(2). When determining whether to exclude evidence obtained from a charter violation trial judges must turn their minds to the following three considerations:

1.)   From the public’s point of view, how serious was the police misconduct (that involved a charter violation and the acquisition of evidence thereby)? Was it flagrant, willful or egregious? Was it motivated by racism? Was it inadvertent or an honest mistake?

2.)   What was the nature and extent of the physical or psychological impacts on the accused person of the police officers’ misconduct? Did the accused person differ a significant restraint on his or her liberty? Did he or she suffer an invasive body cavity search? Did he or she experience a minor breach of a right to counsel? OR the second factor considers the impact of the charter violation on the accused’s rights.

3.)   How strongly would the public want the case to be decided on its merits (i.e. on truth, as opposed to “qualified” truth)?

What has the supreme court of Canada said about appellate courts’ deference to trial court decisions under section 24(2) of the charter? Has there been any change since grant? What are the advantages and disadvantages of this type of deference?

1.     Does the judge or jury decide whether evidence is admissible under section 24(2) of the Charter?

The judge decides whether the evidence is admissible under section 24(2) of the charter.

Discuss and evaluate the Supreme Court of Canada’s interpretation of what “will bring the administration of justice into disrepute.”

Courts have to make sure that they are not admitting evidence that is collected in a way that make people less likely to respect the justice system. For example, if the police go to a house randomly and search for drugs, the court would need to exclude any evidence they found. This is because such searches would make Canadians feel like they were in a police state and would reduce their trust and respect for their system of justice

   Discuss the three factors that the court will consider when deciding whether evidence is admissible under section 24(2) of the Charter.

This is where the Grant Framework applies. The judges must turn their minds to the following three considerations.

1.) the seriousness of the charter infringing state misconduct.

-For instance, from the publics point of view, how serious is the police misconduct? Was it motivated by racism? was it inadvertent (accidental) or an honest mistake?

2.) The impact of the breach on the charter-protected interests of the accused.

-For instance, Did the accused suffer a significant restraint on his or her liberty? Did he or she suffer a invasive body cavity search? Did he or she experience a minor breach of right to counsel?

3.) Society's interest in the adjudication of the case on its merits.

-For instance, how strongly would the public want the case to be decided on its merits?

In order for evidence to be excluded, the accused must show that one of his or her rights under the Charter has been violated. Therefore, Step 1 is: is there a violation of a Charter right? If there is no Charter violation, section 24(2) is irrelevant. If there is a Charter violation, the court will proceed to Step 2: was the evidence obtained in a manner which violated an accused’s rights under the Charter? If yes, then Step 3 is: could the admission of the evidence bring the administration of justice into disrepute?

1.     The Canadian Law and Society Association has consulted you with regard to the use of social science research as evidence in Charter litigation. They are particularly interested in how it could be used for arguments under section 24(2) of the Charter. Write a memorandum to them explaining how social science research might be helpful in terms of applying this section of the Charter. In addition, tell them how the courts presently decide these issues (the ones you have identified in your memorandum), and how they might convince the court to use social science research for arguments under section 24(2).

 Create a fact pattern that requires you to use the Grant framework, and then answer your question. Remember that before you get to the Grant framework, you must find or argue that the accused has had a Charter right violated and that evidence was obtained in a manner (see Goldhart) that violated that right. It is only after you get through these first two steps, that you can use the Grant framework.

The police officer pulled over a teenager boy after he failed to provide a signal. The police officer smelled and saw small pieces of marijuana on the floor of the vehicle. The officer arrested the teenager and the teen stated that he wanted to talk to a lawyer. The officer did not allow him to contact a lawyer. In this case, the teen’s boys arrest was unlawful and his charter rights were violated when he was not told why he was being arrested and when he was not allowed to talk to a lawyer. The evidence was also obtained in a manner that violated his rights under section 8 of the charter. In this case, the judge would use section 24(2) of the charter to determine if evidence should be excluded against the accused. This is also known as the Grant Framework, which has three different approaches.

1.)  What is the public’s view of the police misconduct? Were the actions of the police accidental or an honest mistake? Was it motivated by racism?

2.)  What was the nature and extent of the physical and psychological impact on the accused person of the police officers? Did the accused person have right to counsel? Did he or she suffer an invasive body cavity search?

3.)  How strongly would the public want the case to be decided on its merits?