Redefining disrepute : acknowledging social injustice and judicial subjectivity in the critical reform of section 24(2) of the Charter

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.Law, Faculty ofGraduat