Questioning Police on their Understanding of the Charter Right that has been Violated
The state of the police officer’s knowledge of the right breached is relevant to the seriousness of a violation under the s. 24(2) Charter analysis. An officer, who violates a Charter right while knowing better, commits a flagrant breach. For those officers who do not know of the relevant right, the reason they do not know can properly influence where on the good faith/bad faith continuum the Charter breach might fall. Ignorance may result, for example, from disinterest or an absence of care on the part of the individual officer, or systemic training deficiencies within the police service. In R. v. Adler , 2020 ONCA 246, the Court of Appeal for Ontario held that the trial judge erred in precluding counsel for the accused from questioning police officers as to their understanding of the accused’s rights, as doing so prevented the accused from developing the very evidence that went to the issue of the good faith of the police. Written by Stuart O’Connell (Barrister