What are the factors used to determine the exclusion of evidence in a sexual assault case?

Seriousness of the Violation • The second set of factors concerns the seriousness of the Charter violation, or in this case, violations, • Every Charter breach is by definition serious but not every Charter breach will result in the exclusion of evidence, • Each case must be examined on its facts, • Relevant to this enquiry is whether each violation: o was committed in good faith, o whether it was inadvertent or of a merely technical nature or whether it was deliberate, willful and flagrant, o whether it was motivated by urgency or to prevent the loss of evidence, and o whether the evidence could have been obtained without a Charter violation, • 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, • The failure of the police 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, • The courts must always be careful to refuse to condone egregious police actions and disassociate themselves from such conduct, • Where the police have nothing but suspicion and no legal way to obtain other evidence, they must not obtain the evidence illegally and unconstitutionally, • Where they do this, the Charter violation is plainly more serious than it would be otherwise, • Ex post facto justification of searches by their result is what the Hunter v. Southam (1984), 1984 CanLII 33 (SCC), 41 C.R. (3d) 97, 14 C.C.C. (3d) 97 standards were designed to prevent, • The infringement of the right to counsel is an important consideration where the search is dependent upon the consent of the accused, • The presence of reasonable and probable grounds to conduct the search mitigates the seriousness of the breach, • The absence of reasonable and probable grounds aggravates the seriousness of the breach, • The degree of the expectation of privacy in relation to searches is also important in determining the seriousness of the breach, • A person has a higher expectation of privacy to his own home.