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The Supreme Court of Canada has ruled that when a minor violation of a suspect’s constitutional rights leads to several subsequent violations, the sequence should be treated as minor by judges conducting criminal trials. That principle could make it easier for prosecutors to use evidence illegally obtained by police.

Under the Charter of Rights and Freedoms, evidence that is unlawfully obtained may still be used in a trial – but only if a judge decides that excluding it would cause more harm than including it. Rights violations treated as minor often result in unlawful evidence being permitted to be heard, especially when the alleged offence is a serious one.

The Charter’s approach is different than that of the U.S. Constitution, which excludes most unlawfully obtained evidence. U.S. courts have declined to accept “fruits of the poisonous tree” – evidence linked to an initial breach of a suspect’s rights.

“Far from being unremarkable events, police officers conducted a series of increasingly invasive searches, arrests and detentions in the absence of lawful authority. There is a strong social interest in denouncing a course of conduct that disregards both individual privacy and liberty, thereby undermining the rule of law,” Justice Martin and Justice Kasirer wrote.

Toronto lawyer Frank Addario expressed concern. “The police respond to the incentives that judicial decisions create. If the courts tell them that violating the Constitution is okay if they are enforcing drug laws, they get the message,” he said.