Le but d'une requête en vertu de la Charte ne peut pas être exploratoire ou constituer une expédition de pêche

R. v. Sandham, 2009 CanLII 59687 (ON SC)

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[26]      In the Report of the Chief Justice’s Advisory Committee on Criminal Trials in the Superior Court of Justice (Ontario), May, 2006, at para. 278, the authors of the report state the following:

Pre-trial applications should not be fishing expeditions, with counsel seeking to find a Charter  violation.  Neither should they become “try-out camps” or “examinations for discovery” for witnesses’ evidence at trial.

[27]      Charron J., speaking for a unanimous court in R. v. Pieres; R. v. Lising, 2005 SCC 66 (CanLII), [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67 (at para. 34), adopted the comments of Finlayson J.A., in R. v. Durette (1992), 1992 CanLII 2779 (ON CA), 72 C.C.C. (3d) 421 at 440 (Ont. C.A.), as to the need to restrict Charter motions to those where some basis for the violation of a right has been established:

The Supreme Court of Canada and appellate courts across Canada have been attempting in recent years to restrict the issues that go to a jury to those which have, on the evidence, an air of reality to them.  Just as we have tried to restrict the trial of an accused on the merits to factual issues that are directly raised in the particular case, so should we strive to restrict pre-trial Charter motions to matters of substance where defence counsel can establish some basis for a violation of a right.  Unless we, as courts, can find some method of rescuing our criminal trial process from the almost Dickensian procedural morass that it is now bogged down in, the public will lose patience with our traditional adversarial system of justice.  As Jonathan Swift might have said, we are presently sacrificing justice on the shrine of process.

[28]      No factual basis has been established to support the allegation that the Charter rights of Mr. Aravena have been infringed by reason of the manufacturing of evidence.  It is based on speculation and nothing more.  To call evidence and hold an “inquiry” would amount to a fishing expedition, the purpose of which would be to see if some evidence of a Charter violation could be found.  This court is not prepared to engage in that exercise.