R. v. Kang

R. v. Kang

The court held that excision is a procedural mechanism employed in a Garofoli review and that excision of information obtained in breach of Charter rights is personal: information found to have been obtained in violation of an accused's Charter rights is to be excised from the information to obtain only as against the accused whose rights were breached. An accused cannot rely on breaches of third parties' or co-accused's Charter rights to obtain excision unless the Crown concedes excision for all.

Citation
2020 BCSC 1151
Parties
Crown: Regina; Accused: Sam Kang; Accused: Gary Kang; Accused: Manveer Braich; Accused: Kristoffer Ghuman; Accused: Jitesh Vagh; Accused: Gurcharn Singh Kang; Accused: Mohanbir Kaur Kang; Accused: Kyle Latimer; Accused: Craig Latimer; Accused: Jacob Pereira; Accused: Anduele Pikientio; Accused: Csongor Szucs; Accused: Pashminder Bopari
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
5 August 2020
Procedural Posture
Criminal Part VI Wiretap/authorization Review / Reasons for Judgment on Joint Hearing Re: Legal Framework for Excision (garofoli Review / Pre Trial)
Outcome
Court adopts 'excision for one' approach: excision of unconstitutionally obtained information from an ITO applies only against the accused whose Charter rights were breached
Legal Topics
Excision, Standing, Wiretap/part VI Authorization, Garofoli Review, Section 8 Charter, Section 24(1) Charter, Section 24(2) Charter, Misleading Disclosure/fraud on Court
Source Language
English
Criminal Law Constitutional Law Evidence Procedural Law Administrative Law Excision Standing Wiretap/part VI Authorization +5 more

Case Brief

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Parties

Regina

Crown

Sam Kang

Accused

Gary Kang

Accused

Manveer Braich

Accused

Kristoffer Ghuman

Accused

Jitesh Vagh

Accused

Gurcharn Singh Kang

Accused

Mohanbir Kaur Kang

Accused

Kyle Latimer

Accused

Craig Latimer

Accused

Jacob Pereira

Accused

Anduele Pikientio

Accused

Csongor Szucs

Accused

Pashminder Bopari

Accused

Procedural Posture

Criminal Part VI Wiretap/authorization Review / Reasons for Judgment on Joint Hearing Re: Legal Framework for Excision (garofoli Review / Pre Trial)

Legal Issues

  1. 1 Whether information obtained in breach of one accused's Charter rights must be excised from an affidavit as against all accused or only as against the accused whose rights were breached
  2. 2 Whether excision is a Charter remedy (s.24(1) or s.24(2)), a common law remedy informed by Charter values, or a procedural mechanism
  3. 3 Whether an accused can rely on breaches of third parties' Charter rights to obtain excision

Ratio Decidendi

The court held that excision is a procedural mechanism employed in a Garofoli review and that excision of information obtained in breach of Charter rights is personal: information found to have been obtained in violation of an accused's Charter rights is to be excised from the information to obtain only as against the accused whose rights were breached. An accused cannot rely on breaches of third parties' or co-accused's Charter rights to obtain excision unless the Crown concedes excision for all.

Court Disposition

Court adopts 'excision for one' approach: excision of unconstitutionally obtained information from an ITO applies only against the accused whose Charter rights were breached