Liberty Law Blog

Updated September 11, 2026

When investigating criminal offences, police must follow rules regarding how they can gather evidence that can be used against you. Some of these rules are outlined in the Canadian Charter of Rights and Freedoms, like your s. 8 right not to be subjected to an illegal search or seizure, or your s. 9 right against unlawful detention or arrest, to name a few. 

When these Charter rights are infringed on by the state, there are remedies available. One such remedy is the exclusion of the evidence obtained as a result of the breach of rights. If a Court concludes that evidence was obtained by police in a manner that infringed or denied the rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of the evidence in the Court proceedings would bring the administration of justice into disrepute.

Whether the admission of evidence obtained through a breach of the Charter would bring the administration of justice into disrepute involves three avenues of inquiry. A court must balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter infringing State conduct, (2) the impact of the breach of the accused, and (3) society’s interest in the adjudication of the case on its merits.

Step 1 in Assessing Disrepute – Gauging the Seriousness of the Charter-infringing State Conduct

The seriousness of the breach involves assessing the egregiousness of the conduct. This primarily focuses on the police officer’s state of mind regarding Charter compliance. For example, the conduct will be deemed more serious when it is part of a larger pattern of Charter violations committed during the investigation of the accused.

There are 3 considerations that help evaluate the seriousness of the Charter breach: (1) the blameworthiness of the conduct, (2) the degree of departure from Charter standards, and (3) the presence or absence of “extenuating circumstances.”

Blameworthiness of the Conduct

• Did the officer act in good faith or bad faith?
• Was there misleading or false evidence from a police officer concerning Charter compliance?
• Was there a pattern of Charter violations?

Degree of Departure from Charter Standards

• Was the Charter breach substantial, or was it merely a technical breach of Charter rights?
• Was racial profiling a factor?
• Was there abusive police conduct?
• Did the officers exploit the vulnerability of the accused? (i.e. an intoxicated individual).

Extenuating Circumstances

• Did the Charter breach occur in a emergency situation  where public or police safety was at stake?

Step 2 in Assessing Disrepute – Gauging the Impact of the Charter Violation on the Accused

We determine how extensive the impact of the Charter-infringing conduct was on the accused by examining the nature and degree of intrusion of the Charter breach into the Charter-protected interests of the accused. The way the impact is assessed varies depending on the kind of evidence:

1. Statements: Generally speaking, the degree of intrusion that occurs when statements are unconstitutionally obtained is high because statements by the accused engage the principal of self-incrimination, one of the cornerstones of Canadian criminal law. Unconstitutionally obtained statements are presumptively inadmissible.

1. Bodily Samples: The degree of intrusion caused when bodily samples are secured depends upon the extent to which privacy, bodily integrity, and human dignity are compromised given the nature of the samples and the manner in which they are secured.

1. Non-bodily physical evidence: The degree of intrusion is primarily influenced by the nature of the search or seizure that produces the evidence, and how compromising that search or seizure is of privacy interests of the accused. Some personal searches and seizures, including body cavity searches and strip searches, represent more serious intrusions into privacy rights then other personal searches, such as “pat-down” searches. Unreasonable pat-down searches of one’s person tend to be more offensive than property searches, while searches of one’s home are more serious than searches of one’s office or car.

1. Derivative Evidence: Since derivative evidence comes from unconstitutionally obtained statements, that degree of intrusion will generally be significant, unless it can confidently be concluded that there is a likelihood that the derivative evidence would have been discovered even if there had been no Charter violation.

Step 3 in Assessing Disrepute – Judging Society’s Interest in an Adjudication on the Merits

There are two central factors in examining the impact of excluding the evidence on the truth-seeking function of the Court: (1) the reliability of the evidence, and (2) the importance of the evidence to the prosecution’s case. Exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

Conclusion

In summary, Courts must balance several factors when considering whether to exclude evidence obtained through state misconduct. Ultimately, if the Court finds that, having regard to all of the circumstances, the admission of evidence in the Court proceedings would bring the administration of justice into disrepute, they must exclude the unlawfully obtained evidence.

If you think your Charter rights have been breached, it is important to contact an experienced Criminal Lawyer to help ensure that you are making the best possible arguments to get the most drastic remedies available. Other remedies for infringements of your Charter rights may be a stay of proceedings (which stops the prosecution entirely), or a reduction in sentence, or even costs in rare circumstances. 

To learn more, contact us for a free consultation at 1-833-784-7500.