What factors will determine the seriousness of a Charter violation for exclusion of evidence?

British Columbia, Canada


The following excerpt is from R. v. Guilbault, 2001 BCPC 118 (CanLII):

Factors relevant to the seriousness of the violation are found in Collins v. The Queen, supra at p. 20. These factors include whether the breach was committed in good faith, whether it was inadvertent or of a merely technical nature and whether it was deliberate, willful or flagrant. Also relevant is whether the breach was motivated by urgency or necessity to prevent loss or destruction of evidence. The availability of other investigation techniques and the fact that the evidence could have been obtained lawfully is an extremely important consideration. As articulated by Lamer J. in Collins v. The Queen, supra at p. 20: .. the availability of other investigatory techniques and the fact that the evidence could have been obtained without the violation of the Charter tend to render the Charter violation more serious. ... In fact, their failure to proceed properly when that option was open to them tends to indicate a blatant disregard for the Charter, which is a factor supporting the exclusion of the evidence.

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