CHARTER COMPLIANCE AND THE ACCUSED

It is not unusual for a client to approach me, citing police misconduct in the nature of an illegal stoppage, an illegal search, or an excessive use of physical force during an arrest. There is, however, arguably an emerging trend in the case law which takes an almost forgiving approach to police misbehaviour. As a defence lawyer, I see this as lamentable. As a citizen, it is unfortunately innevitable due to the current political climate. There was a time when the Charter of Rights operated as a powerful shield against state breaches. While the Charter, in theory, continues to protect an individuals autonomy, certainly the classic view of a persons rights has been steadily watered down. Somewhat ironically, new lines of caselaw from the Supreme Court of Canada allow defence lawyers to argue for mitigation on sentence on account of state breaches. This appears perhaps, as the corollary to the jurisprudential tighetening of the Chater reins in the remedial context. In this respect, the concept of a breach permitting a stand alone remedy on the trial proper is certainly becoming less frequent. Nevertheless, the client is not without options. The argument has shifted from the manner of the breach, to what should be done with the evidentiary produce resulting from the breach. Thus, we are still able to argue for exclusion of illegally obtained evidence, with a focus on the concept of trial fairness. With a properly crafted defence and careful review of the caselaw with the presiding judge, we are able to focus the analysis on the merits of proceeding with the case at large, and thus obliquely obtain the classic remedies vis a vis exclusion of evidence, which the Courts are now more reluctant to grant. Any prospective client who has been the victim of state misconduct should contact a lawyer a the earliest opportunity to discuss their options.