Section 10(b) of the Canadian Charter of Rights and Freedoms preserves the right of a detained person to contact a lawyer immediately after arrest or detention, and simultaneously imposes a duty on the police to immediately inform persons that they have this right.

The section states that “Everyone has the right to arrest or detention…

to hire and instruct a lawyer without delay and to be informed of that right”.

The duty of the police to inform suspects of their rights under Section 10(b) was firmly established by the Supreme Court of Canada in R. v. Bartle in 1994, where the defendant was arrested for allegedly driving while intoxicated and was not informed by the police of his right to contact a lawyer at the time of the arrest. The evidence against Mr. Bartle was excluded on the basis of violation of the Charter.

Rv Feeney was a similar case in 1997, where a second-degree murder charge was dismissed after police entered the suspect’s home without a warrant and proceeded to question him without informing him of his right to counsel.

Unlike the US Constitution, the Bill of Rights and Freedoms does not expressly provide the right to a state-funded lawyer when the defendant cannot afford to hire a lawyer. However, the Ontario Court of Appeal has interpreted Section 7 of the Charter as requiring the government to fund defense attorneys in certain and limited circumstances. This reasoning for this was set out in the Rowbotham decision of 1988.

Section 11(b) of the Charter protects Canadians’ right to a speedy trial in Canada, stating that “anyone charged with an offense has the right… to be tried within a reasonable time.

The Supreme Court of Canada breathed life into this constitutional guarantee in 1990 with the Askov decision, ruling that a two-year delay in bringing four suspects to trial for extortion and firearms offenses constituted a violation of their right to be prosecuted within a reasonable time pursuant to Section 11(b). This led to the stay of proceedings against Askov and his co-defendant, along with thousands of other defendants across Ontario. It also laid the groundwork for thousands of so-called “Askov applications” across Canada in subsequent years.

In 1992, the Supreme Court of Canada raised the bar for future Askov applications with the Morin decision. Although the length and cause of the delay remain an important factor, the Supreme Court made it clear in Morin that other factors must also be considered, placing some onus on the defendant to show that the delay prejudiced their defense or adversely affected them. in some way.

The Canadian Charter of Rights and Freedoms provides for the exclusion of evidence that was obtained as a result of a violation of the Charter, but only in circumstances where admitting the evidence would bring the administration of justice into disrepute.

Section 24(2) of the Charter states that “where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by this Charter, the Evidence will be excluded if it is established that, taking into account all the circumstances, its admission in the process would lead to the discredit of the administration of justice.

The meaning of Section 24(2) was first developed by the Supreme Court of Canada in the 1987 Collins decision, where police obtained evidence of the illegal drug heroin from an aggressive and unreasonable search that was found to violate the rights of Section 8 defendant.

The Collins test was revised in 2009 in the Grant case, which imposed a stricter standard for the type of Charter violation that would “bring the administration into disrepute” and held that not all Charter violations should necessarily result in debarment. of evidence.

The above set in Grant has expanded the ability of police to engage in aggressive searches and seizures, essentially on a hunch, as we can see in cases like R. v. loewen. The current Supreme Court has made it clear that only particularly aggravated or flagrant breaches of the Charter will result in the exclusion of evidence.