Canada’s Charter of Rights and Freedoms provides for the exclusion of evidence that was obtained as a result of a Charter breach, but only in circumstances where admitting the evidence would bring the administration of justice into disrepute.
Section 24(2) of the Charter states that “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.”
The meaning of Section 24(2) was initially fleshed out by the Supreme Court of Canada in the 1987 Collins decision, where police obtained evidence of the illegal drug heroin from an aggressive and unreasonable search which was deemed to violate the Section 8 rights of the accused.
The Collins test was revisited in 2009 in the Grant case, which imposed a stricter standard for the type of Charter breach that would “bring the administration into disrepute,” and held that not every Charter breach should necessarily result in the exclusion of evidence.
The precedent set in Grant has expanded the ability of police to engage in aggressive search and seizure, essentially on a hunch, as we can see from cases such as R. v. Loewen. The current Supreme Court has made clear that only particularly aggravated or egregious Charter breaches will result in the exclusion of evidence.
Civil Forfeiture and the Standard of Proof
Unlike criminal proceedings, where an accused person must be presumed innocent until proven guilty and only punished once their guilt has been proven beyond a reasonable doubt, civil forfeiture proceedings operate on the balance of probabilities, meaning that the state must merely demonstrate that an individual has probably done something illegal in order to obtain forfeiture of their property.
Democratic Rights: A Broad Charter Guarantee
Democratic Rights, and specifically the right to vote in provincial and federal elections, enjoy broad constitutional protection in Canada, pursuant to Section 3 of the Charter of Rights and Freedoms. This section states that “Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”
The Right to Counsel in Canada
Section 10(b) of the Canadian Charter of Rights and Freedoms preserves the right of a detained individual to contact counsel immediately upon arrest or detention, and simultaneously imposes a duty upon police to immediately inform individuals that they have this right.
