The Charter, Criminal Procedure and Evidence (parts 1-3)
Tuesday, February 26, 2013
Part 1: Constitution Act, 1982
Charter of Rights and Freedoms (charter) which was created under the constitution
o Parliamentary supremacy
The philosophy that the Parliament or legislature (properly acting) can enact or repeal
any law that it chooses.
o Division of powers
Set out in the Constitution
o Empower judge
Does not have to enforce if it does not follow the Constitution
o Roles of different laws and how they work together, and provides mechanisms for how they
can be changed
Something is beyond the federal or provincial government's power and con override
o This allows check on government power
If the judge sees that the application is not being properly used, they can send it back
to parliament or strike it down
The Charter of Rights and Freedoms
s. 7 of the Charter provides that "everyone has the right to life, liberyt and the security of person"
o What is life??? Fetus
o Security of person? What are the factors that go into it?
Strike down: the courts CAN but they use it in a measured way, they strike it down as little as
o Reading down: interpreted as narrowly as possible; less inclusive
o Reading in:
Criminal Procedure - search warrant
Police and government investigators power to search and seize
Charter- "secure against unreasonable search and seizure
o Search and seizure: a police practice where they can search property and seize evidence
that may be needed in the investigation and prosecution of crime
o Controlled Drugs and Substances Act; there are special rules when searching for drugs
11(7) provides that if by "reason of exigent circumstances it would be impracticable to
obtain" a warrant
Have 'reasonable and probable grounds to search for evidence"
Charter - Exclusion of Evidence
Way evidence is collected
"bring the administration of justice into disrepute"
R. v. Feeney (1997) o "fruit of a poisoned tree": if the police do something wrong at the start of the process, all
the evidence could be thrown out because of that
Police found Mr. Feeney sleeping with blood all over his shirt near the seen of the murder
However, police did not have reasonable grounds to enter the hou