The Application of Section 24(2) of the Charter of Rights and Freedoms in a Civil Action
Advocates Quarterly, Vol. 28, p. 103, 2004
27 Pages Posted: 3 Aug 2006
Since its enactment in 1982, the Charter of Rights and Freedoms has been the subject of intense judicial and academic examination, and few sections of the Charter have received greater scrutiny than s.24(2) - the clause that permits the judiciary to exclude evidence where to admit it would "bring the administration of justice into disrepute". Owing in part to its formidable power, s.24(2) has been approached with great care by the courts. In the criminal forum, a large body of case law quickly evolved addressing the section's scope, applicability and impact. A number of controversial decisions set out guidelines to assist in the exercise of the discretion. However, in the civil context, the situation could not be more dissimilar. In this realm, very little consideration has been given towards how the section should operate and, indeed, to what extent it should operate at all. To date, instances in which this has been attempted remain relatively rare, but motions of this nature do appear to be becoming more frequent. Unfortunately, they have been met with a host of rather bewildering decisions as judges and litigants struggle to determine how s.24(2) should apply. This article will explore this issue and suggest how the Charter's evidentiary rule might be utilized in civil proceedings.
Keywords: charter, charter of rights, constitutional remedies, s.24(2), civil litigation
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