What is the test for exclusion of evidence in a case such as the one at bar?

British Columbia, Canada

The following excerpt is from HMTQ v. Mann, 2003 BCSC 1725 (CanLII):

Counsel for the accused cites the case of Regina v. Silveira, 1995 CanLII 89 (SCC), [1995] 2 S.C.R. 297, as an indication that evidence ought to be excluded in a case such as the one at bar. The court must consider three issues in determining whether evidence obtained in violation of the Charter ought to be excluded: The effect of the admission of the evidence on the fairness of the trial; the seriousness of the Charter breach; and the effect of excluding the evidence on the justice system’s repute. Citing Regina v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, the court, in Silveira, lists a number of factors to be considered: - what kind of evidence was obtained? - what Charter right was infringed? - was the Charter violation serious or was it of a merely technical nature? - was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith? - did it occur in circumstances of urgency or necessity? - were there other investigatory techniques available? - would the evidence have been obtained in any event? - is the offence serious? - is the evidence essential to substantiate the charge? - are other remedies available?

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