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  • AHS Writer (law student)

If you can be proven guilty, shouldn’t you be held accountable? (A Student’s Perspective)

Sitting around the Thanksgiving dinner table, I was thinking about a question that had been posed to my class a couple of weeks ago; the question was whether a person accused of a crime who can be proven guilty, should be entitled to an acquittal, re-trial or have evidence excluded if a Charter violation can be demonstrated. The courts have established through case law that this is their supported view, as per the R v Grant test that deals with section 24(2) of the Charter. This case outlines the test for whether evidence obtained through a Charter breach can be admitted or not, based on three main steps.

The first scrutinizes the seriousness of the Charter infringing conduct, the second looks at the impact on the Charter-protected interests of the accused and the third examines society’s interest in adjudication of the case on its merits. The main purpose of this test is to ensure that by the admission of evidence obtained in a breach of a Charter right, that it will not bring the justice system into disrepute. Bringing the justice system into disrepute essentially means having the citizens lose confidence in the justice system.

I have come to understand that this is a very controversial topic with varying opinions, possibly depending on your nationality, the way you were raised or even if a crime has personally affected your life. At the dinner table, my uncle spoke up first, and stated that his opinion was that if a crime can be proven then accountability for it should follow. My aunt’s view was that the Charter exists for a reason, claiming that individuals should be entitled to a remedy of sorts if a violation took place that affected how fair their case could be going forward in the courts. My aunt said this knowing that the purpose of the Charter is to protect our rights.

My opinion falls very closely in line with my aunt. Where a breach of a Charter right occurs, then section 24(2) exists to protect us and have the evidence excluded, although it is possible for section 24(2) to be misunderstood if one does not have a legal background. Personally prior to law school I was unaware of its existence. The section 24(2) test, may seem to be helping an individual who is obviously guilty remain free through the exclusion of incriminating evidence. The reality is though, our justice system is a system of checks and balances, and this test is an example of one of these checks and balances. Allowing someone who could have been proven guilty to walk free is not a flaw in the system, but rather a reassuring stance that our Charter rights cannot be breached so easily and the breach supported by our courts in the furtherance of justice.

Take the case of R v A.M. for example. Here a police officer, with the permission of the principal of St. Patrick’s High School, attended to the school with a sniffer dog to search the school for drugs. The children were instructed by the principal to remain in their classrooms for the duration of the search. The police went to the gymnasium and the sniffer dog alerted to one of the backpacks that was lying on the floor unattended. The police then physically searched the bag where they located ten bags of marijuana, around ten psilocybin (also known as magic mushrooms), and other drug paraphernalia. The trial judge and the Ontario Court of Appeal both acknowledged that there was a warrantless search that took place and that A.M. could expect a level of privacy in his belongings, thus they would acquit on the charges. The Supreme Court of Canada was extremely split on the decision but the plurality held that the police had not constitutionally conducted this warrantless search and as such the evidence that was obtained was a breach of section 8 Charter right to be free from unreasonable search and seizure and the evidence should be excluded as per section 24(2) of the Charter.

The take away from this case is that the Crown clearly would have been able to demonstrate the charges against A.M., of possession for the purposes of trafficking marijuana and simple possession for the psilocybin. Both are serious charges and have their respective penalties, however the main issue in this case was not proving that A.M. was guilty but rather examining the manner in which the police found out A.M. had possession of the drugs. As evidenced by the case, the finding of the drugs was a breach of section 8 of the Charter and although it is largely accepted that a crime occurred, admitting evidence obtained from a breach such as this that affects one’s personal privacy and autonomy is so serious that the evidence must be excluded.

After I finished explaining the case of A.M. to my family, everyone to my surprise began to nod in agreement. Everyone seemed to understand that this crime, although could be proven by the Crown, contained a serious breach. My aunt even commented that she would not want her belongings randomly searched. I think one of the important takeaways from the section 24(2) test of the Charter is that the goal is to maintain citizen confidence in our system and in turn prevent abuses of power. Although this test can be used to easily rationalize a simple possession of narcotics crime, my uncle asked what about a more serious charge such as child pornography. My answer was simple the same test still applies. This crime is egregious and should not be taken lightly, however our Charter rights are there for a reason, and I personally believe that no matter, what they should be upheld and respected.


Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

R v A.M. [2008] 1 SCR 569, 2008 SCC 19, [A.M.].

R v Grant, [2009] 2 SCR 353, 2009 SCC 32, [Grant]

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