What is the test for establishing that an accused has a Charter violation?
Manitoba, Canada
The following excerpt is from R. v. Strueby, 2004 CanLII 27551 (MB PC):
The accused has the onus of establishing on a balance of probabilities that his rights pursuant to Section 10(b) of the Charter have been breached. Section 10(b) requires that an individual, upon being detained, be given a reasonable opportunity to retain and instruct counsel before that detainee be required to provide evidence which may be incriminating. Any waiver of this right by the detainee must be done so with full knowledge of the consequences of giving up that right. (Clarkson v. The Queen) 25 C.C. (3d) 207 S.C.C.
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