How bad is bad? When a trial judge decides to throw out the evidence.

When an accused person alleges that one of their charter rights have been violated, it’s an uphill battle toward their desired goal—the exclusion of evidence obtained in the investigation resulting in a dismissal of the charges.

The Canadian Charter of Rights and Freedoms came into force in 1982 and entrenches in the Constitution the rights and freedoms that Canadians believe are necessary in a free and democratic society. The charter regulates interactions between the state and individuals; it does not govern interactions between individuals (and that includes corporations and businesses).

In the criminal arena, the charter has been subject to innumerable court cases with defence lawyers, Crown counsel, and judges continuously grappling with the meaning of different charter rights and how sections of the charter should be applied. Criminal case law has shaped how law enforcement agencies conduct themselves when investigating crime and when dealing with suspects or accused persons. The last thing a police officer wants is to have all the evidence gained from an investigation thrown out at trial due to breaches of an accused’s charter rights, especially if that investigation took weeks, months, or years to complete.

Sections 7 to 14 are the legal rights guaranteed under the charter. The charter rights most commonly litigated in a criminal trial are sections 8 (the right to be secure against unreasonable search or seizure), 9 (the right not to be arbitrarily detained or imprisoned), and 10(a) (the right on arrest or detention to be informed promptly of the reasons for the arrest or detention) and 10(b) (the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right). This article will not go into these charter rights in any detail as there are 20 years worth of case law that outlines what each of these rights entail, what specific words in each section mean, and how these guarantees are to be applied.

What I want to outline is the general process by which an accused launches a charter argument and the steps taken in a trial.

Notice must be provided to the Crown if a charter argument will be advanced. Of course, if evidence comes out during the trial that raises a new unforeseen charter argument, that can usually be argued at trial subject to any objections of the Crown. Charter arguments are heard in voir dires, which are trials within trials. The onus is usually on the accused to prove on a balance of probabilities (more than 50 percent) that their charter right has been violated by the police. This is done by eliciting testimony from the police witnesses and sometimes by the accused taking the stand and providing evidence themselves.

If the trial judge rules that a charter right has been violated, that’s not the end of the inquiry. The remedy for a breach is found in section 24(2) of the charter. Where a court finds that evidence was obtained in a manner that infringed or denied any rights or freedoms under the charter, the evidence shall be excluded if it’s established that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.

The Supreme Court of Canada has developed the test to be applied by trial judges when considering whether to admit or exclude evidence. The test has been overhauled in a recent SCC case, R. v. Grant, which was handed down in 2009. A trial judge must consider and weigh the following three branches of inquiry: 1. the seriousness of the charter-infringing state conduct (would the admission of the evidence send the message that the justice system condones serious state misconduct?), 2. the impact of the breach on the charter-protected interests of the accused (would the admission send the message that individual rights count for little?), and 3. what is society’s interest in the adjudication of the case on its merits?

In my next article, I’ll go into more detail regarding what factors a judge must consider under each line of inquiry, as well as provide some examples to put this whole process into context.

Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at straight.reasonable.doubt@gmail.com.

A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.