R V Burlingham Case Analysis

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Canada: A Comparative approach
It seems fair that, following a critical analysis of the law in JC, another jurisdiction should be considered in order to facilitate a proper outlook on what may be needed, and what has worked elsewhere. This section is intended to outline the operation of the exclusionary rule in Canada.

The Canadian courts rely on legislative enjoined exclusionary rules that are justified by judicial integrity. This justification is given effect to by means of the application of a balancing test. In April 1982, Canada codified its exclusionary rule in the Canadian Charter of Rights and Freedoms. Section 24(2) in particular, provides for the exclusion of evidence in when “the admission of such evidence in the proceedings would bring the administration of justice into disrepute”. In Canada, the maintenance of judicial integrity requires a consideration of the seriousness of the offence with which the accused is charged and the extent of the violation. Initially judges had little discretion whether to exclude evidence. This, clearly, made for a more robust rule. In R v Burlingham, The Canadian Supreme Court directed the exclusion of evidence if
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The enormously significant decision of JC will have wide ranging implications in both the vindication of rights and the administration of justice in the near future. Despite it being the appropriate time to re-write the Kenny decision, it is clear that “the wrong move on evidence” has been made. While the criticisms of the JC case, will no doubt, be far and long lasting, I do believe there is a glimmer of hope in looking towards the Canadian position of R v Grant. However, this is not without its problems and could come in for some constitutional questioning if adopted. In the hope of achieving change, it is imperative that our courts adopt a more of assertive posture in the near future in setting down a balanced and workable exclusionary
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