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Suppose during the arrest of the accused, the police for no apparent reason violently beat up his brother, does the accused have any claim to a remedy for the Charter violation?

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Thompson, [1990] 2 S.C.R. 1111 at 47:

“…In my view, the extent of invasion into the privacy of these third parties is constitutionally relevant to the issue of whether there has been an “unreasonable” search or seizure. To hold otherwise would be to ignore the purpose of s. 8 of the Charter which is to restrain invasion of privacy within reasonable limits. A potentially massive invasion of the privacy of persons not involved in the activity being investigated cannot be ignored simply because it is not brought to the attention of the court by one of those persons. Since those persons are unlikely to know of the invasion of their privacy, such invasions would escape scrutiny, and s. 8 would not fulfill its purpose.”

MONTOUTE, [1991] A.J. No. 74 (ABCA):
Although the accused’s s. 8 rights were not violated he was entitled to have the evidence excluded pursuant to s. 24(2) of the Charter if to admit the evidence would bring the administration of justice into disrepute. If a co-conspirator’s Charter rights have been breached in obtaining his declarations furthering the conspiratorial objectives to the extent that its admission would bring the administration of justice into disrepute, it would further bring the administration of justice into disrepute to give judicial condonation to unacceptable conduct by the admission of that evidence on the pretext that s. 24(2) was not available to the accused as his Charter rights had not been breached. The accused was therefore entitled to raise and rely on the infringement of the co-conspirator’s rights protected by s. 8 of the Charter. In the circumstances of this case to admit the evidence of the private communications which were intercepted on the co-conspirator’s telephone would bring the administration of justice into disrepute. There was no evidence to suggest that the co-conspirator used the telephone solely to communicate with the undercover officer. In addition, there was evidence that other persons in the co-conspirator’s residence had access to those telephones and that one of them, by the use of those telephones, communicated with a person other than the officer. On the evidence the police had surreptitiously electronically recorded the private communications of the co-conspirators by means of an interception of telephones in his private residence. There was no evidence of any attempt at supervision to ensure that the only private communications intercepted were within the ambit of the police officer’s prior consent to interception. Where an interception of private communications takes place in those circumstances there has been a very grave breach of an individual’s Charter rights. The method used to obtain the private communications created a potential for unlawful interception of private communications emanating from a private residence and the admission of the private [page484] communications would give judicial condonation to the method used in this case. Accordingly, the private communications should be held to be inadmissible against the accused pursuant to s. 24(2) of the Charter.
However, remember, this approach was rejected by the Ont C.A. in Paolitto (Ont. C.A.), [1994] O.J. No. 1220:
23 The decision of this Court in R. v. Pugliese (1992), 71 C.C.C. (3d) 295 precludes the approach suggested by the appellant. (See also R. v. Leaney and Rawlinson (1987), 38 C.C.C. (3d) 263 (Alta C.A.), aff’d on other grounds [1989] 2 S.C.R. 393, and R. v. Fraser(1990), 55 C.C.C. (3d) 551 (B.C.C.A.) to the same effect.)
24 Section 24(1) clearly states that it is the person whose rights have been infringed who has standing to apply to have the evidence excluded. In Pugliese, supra, Finlayson J.A. held, on behalf of the Court, that it was the accused who must discharge the burden of satisfying the court that her personal constitutional rights have been violated. Here, it is not the appellant Paolitto’s rights which have been infringed, but those of the third party Altomare.
25 The appellant argues that the admission of the evidence at Paolitto’s trial constitutes a violation of her rights. Section 24(2) requires that the evidence be “obtained in a manner that infringed” Paolitto’s rights. The evidence was obtained in a manner which infringed Altomare’s rights. It cannot be said that Paolitto’s rights were infringed at the time the evidence was obtained.
See also Chang et al. [2003] O.J. No. 1076 (Ont. C.A.).

Further, in Cheung (1997), 119 C.C.C. (3d) 507 (B.C.C.A.), the Montoute decision was held to be inconsistent with Edwards (-decided later) and with the constitutional principle that Charter rights are personal.

In Rendon (1999), 140 C.C.C (3d) 12 at p. 45, the Quebec Court of Appeal agreed that, as in Cheung, Edwards is the controlling authority and held that “… Montoute should be discarded because an accused cannot claim the personal right of a third party.”

The Quebec Court of Appeal also qualified this position respecting standing in wiretap cases on the basis of Shayesteh (1996), 111 C.C.C. (3d) 225 (Ont. C.A.).

Finally, an oft quoted paper written by Mr. Justice Watt titled “Charter Exclusion”, National Criminal Law Program – Criminal Evidence, University of New Brunswick, July 15 to 19, 1991 dealt with a further complication with respect to an accused relying on third-party Charter violations to exclude evidence under s. 24(2):
Further, its ineluctable effect would be to erect an absolute exclusionary rule in place of present s. 24(2), for if the admission of the evidence is unconstitutional (a breach of Charter s. 11(d)), a court could never receive it irrespective of whether its admission in the proceedings could bring the administration of justice into disrepute.I hope this was somewhat helpful, as I don’t have the time right now to flesh this topic out in greater detail.

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