What happens if a search is unreasonable?

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Is the evidence always excluded from trial?  →→→→→NO!!

What does it mean to “exclude” evidence? It means that the evidence recovered cannot be used at trial. For example, if drugs are discovered in a search and those drugs are excluded from the trial, the Crown attorney will be unable to get a conviction.

The procedure to determine whether to exclude evidence comes from s. 24(2) of the Charter:

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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.

In other words, if allowing that evidence at trial would make the justice system look bad or unfair it will be excluded.

READ:
Right to Silence and to Counsel in Canadian Law

How does a judge determine if the evidence should be excluded?

There are three considerations:

  • Seriousness of the Charter-Infringing State Conduct, which focuses on the severity of the state conduct that led to the Charter breach (which includes an analysis of whether the breach was deliberate or willful, and whether the officers were acting in good faith)
  • Impact on the Charter-Protected Interests of the Accused, which focuses on how the accused person was affected by the state conduct (which includes an analysis of the intrusiveness into the person’s privacy, the direct impact on the right not to be forced to self-incrimate oneself, and the effect on the person’s human dignity)
  • Society’s Interest in an Adjudication on the Merits, which focuses on how reliable the evidence is in light of the nature of the Charter breach.

After a consideration of each of these points a judge will make a determination as to whether to exclude the evidence.

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