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/Solicitor)