On April 17, 1982, the Canadian Charter of Rights and Freedoms was proclaimed into force. By
including a set of constitutionally entrenched core legal rights (i.e. ss. 8, 9, and 10(b), and a
remedial mechanism designed to enforce those rights (i.e. s. 24(2)), the Charter had the potential
to alter certain repressive elements of the criminal justice system that had endured in Canada for
over a century. Despite this potential, both the core legal rights and s. 24(2) were drafted using
vague terminology. As a result, the Charter ‘s ability to succeed where previous attempts at
instituting effective due process protections for Canadians had failed would depend largely on
the judiciary’s ability to satisfactorily craft such protections out of imprecise statutory language.
This thesis will argue that the Supreme Court of Canada has created a test for the
exclusion of unconstitutionally obtained evidence under s. 24(2) that fails to adequately protect
the core legal rights of the socially, racially and economically marginalized individuals to whom
the Canadian criminal justice system is disproportionately applied. In advancing this argument,
the relevant jurisprudence and academic literature will be analyzed according to a methodology
inspired by the Critical Legal Studies movement. The issue of exclusion will be examined in its
social context, primarily by analyzing the current system of Canadian criminal justice and
acknowledging its over-application to the socially disenfranchised. It will be argued that the
Supreme Court’s test for exclusion has developed as it has because of the judiciary’s
subconscious tendency to interpret unclear constitutional provisions in keeping with the
dominant conservative ideology, a method that favours maintaining the social status quo.
The purpose of this thesis is to set out a framework for a reform of the Charter ‘s
exclusionary mechanism. This new approach will attempt to situate social context at the forefront
of the s. 24(2) decision-making process. It will be argued that the concept of “disrepute” within
s. 24(2) must be redefined so that it captures investigatory practices made possible by unjust
social, racial and economic divisions that render certain groups powerless, and thus more
vulnerable to police surveillance.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:BVAU.2429/4124 |
| Date | 11 1900 |
| Creators | Hauschildt, Jordan William Derek |
| Publisher | University of British Columbia |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
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