Impact on the Charter-protected interests of the accused To what degree did the violation actually undermine the interests protected by the infringed? Weighs in favour: Fleeting, technical impact; discoverable derivative evidence Weighs against: Profoundly intrusive; non-discoverable derivative evidence. The court makes it clear that discoverability, while a factor, is not the test. Society’s interest in an Adjudication on the Merits Would the truth-seeking function of the criminal trial process be better serviced by the admission of the evidence, or by its exclusion? Weighs in favour: evidence is highly reliable and relevant; reliable evidence that, if excluded, guts the Crown’s case; serious case (adjudication on merits). Weighs against: evidence of questionable reliability; unreliable evidence that is a major part of the prosecution’s case; serious case (justice system beyond reproach). *seriousness both ways”, as does role that evidence in “cuts prosecution’s case *The way to work through the test is to consider each of the three factors in detail and then to weigh them against one another. In practice, when two factors weigh in favour of admission, the evidence tends to be admitted. Similarly, when two factors weigh against admission, the evidence tends to be excluded. The court analyzes the factors as follows, and concludes that the evidence is admissible: The police conduct was not ideal but it was not egregious or reckless. No suggestion of racial profiling. Weighs in favour of admissibility. The fact that there were multiple breaches is important (9 and 10(b)). discoverability of evidence aggravates impact. The impact of the breach was significant, but not at the high-end of the scale. Weighs against admissibility. Gun is highly probative and reliable. Weighs in favour of admissibility. Charter-protected interests (Grant): Arbitrary detention (s. 9): liberty interest Statement obtained in breach: section 7 right to silence and the principle against self-incrimination (one of the most important interests, appears to have more weight than others). Courts have tended to exclude statements obtained in breach of the Charter. 10(b) violations will result in an unlawfully obtained statement. 10(b) interests include liberty and autonomy, right to be free from
Impact on the Charter-protected interests of the accused To what degree did the violation actually undermine the interests protected by the infringed? Weighs in favour: Fleeting, technical impact; discoverable derivative evidence Weighs against: Profoundly intrusive; non-discoverable derivative evidence. The court makes it clear that discoverability, while a factor, is not the test. Society’s interest in an Adjudication on the Merits Would the truth-seeking function of the criminal trial process be better serviced by the admission of the evidence, or by its exclusion? Weighs in favour: evidence is highly reliable and relevant; reliable evidence that, if excluded, guts the Crown’s case; serious case (adjudication on merits). Weighs against: evidence of questionable reliability; unreliable evidence that is a major part of the prosecution’s case; serious case (justice system beyond reproach). *seriousness “cuts both ways”, as does role that evidence in prosecution’s case *The way to work through the test is to consider each of the three factors in detail and then to weigh them against one another. In practice, when two factors weigh in favour of admission, the evidence tends to be admitted. Similarly, when two factors weigh against admission, the evidence tends to be excluded. The court analyzes the factors as follows, and concludes that the evidence is admissible: The police conduct was not ideal but it was not egregious or reckless. No suggestion of racial profiling. Weighs in favour of admissibility. The fact that there were multiple breaches is important (9 and 10(b)). of evidence aggravates impact. The impact of the breach was significant, but not at the high-end of the scale. Weighs against admissibility. Gun is highly probative and reliable. Weighs in favour of admissibility. Charter-protected interests (Grant): Arbitrary detention (s. 9): liberty interest Statement obtained in breach: section 7 right to silence and the principle against self-incrimination (one of the most important interests, appears to have more weight than others). Courts have tended to exclude statements obtained in breach of the Charter. 10(b) violations will result in an unlawfully obtained statement. 10(b) interests include liberty and autonomy, right to be free from discoverability