Improperly Obtained Evidence

• Author: David M. Paciocco/Lee Stuesser
• Pages: 316-357

316

1. IMPROPERLY OBTAINED EVIDENCE AT

COMMON LAW

1.1) The Admissibility of Improperly Obtained Evidence

With the obvious exception of induced statements, the probative value

of evidence does not normally change because it has been obtained by

illegal or unfair means. It remains useful in resolving the factual issues

to which it relates, regardless of how it was found. Whether illegally or

unfairly obtained evidence should be excluded, then, depends on pri-

orities. If priority is given to making accurate factual findings, the evi-

dence should be received. If priority is given to fairness and due

process, there will be times when it should be excluded.

At common law, the view was taken that the propriety of police con-

duct was not at issue in a criminal prosecution; the guilt of the accused

was. The goal was to arrive at accurate decisions about those factual

issues that were before the court. Hence, illegally or unfairly obtained

evidence was receivable. Admissibility depended on the relevance and

probative value of the information, not upon how it got before the court.

Common law courts did not consider that they were condoning

improper police conduct by accepting the fruits of improper investiga-

tive techniques. The law did not allow the improper techniques to be

used. It was just that the improper police conduct was not the matter

at issue during the criminal trial where the evidence was being offered.

IMPROPERLY OBTAINED

EVIDENCE

chapter 9

The police misconduct could be dealt with another day in a separate

hearing where it was the matter in issue, such as during a prosecution

of the officer where a penal law was violated, or through a civil suit or

a disciplinary proceeding. In practice, though, it was rare for anything

to be done about the use of improper investigative techniques. When

the Charter was proclaimed in force, all of this changed. Courts were

given the duty by subsection 24(2) to exclude unconstitutionally

obtained evidence in some cases.

2. SECTION 24 OF THE

CHARTER

INTRODUCED

Accused persons must apply to the trial court to have unconstitu-

tionally obtained evidence excluded. Before a court can even con-

sider whether to exclude the evidence, the applicant must establish,

on the balance of probabilities, that his Charter rights have been

breached by a state agent. If the accused is successful, the court

will go on to consider whether the two exclusionary requirements

have been met:

The First Requirement: “obtained in a manner”

Evidence can be excluded under subsection 24(2) solely where it has

been “obtained in a manner” that breached the Charter rights of the

applicant. Evidence will be “obtained in a manner” that violates the

Charter where a Charter violation leads to the discovery of evidence

in a non-remote way. Even in the absence of this kind of factual,

causal connection, evidence will be “obtained in a manner” that vio-

lates the Charter where both the breach and the discovery of the evi-

dence occur as integral parts of the same event or transaction.

The Second Requirement: “the admission of the evidence in all of

the circumstances [c]ould bring the administration of justice into

disrepute”

Where the admission of the evidence would render a trial unfair, it

could bring the administration of justice into disrepute to receive it

and it must therefore be excluded. This will occur where the evi-

dence is

1. “conscriptive,” and

2. where the Crown fails to establish on the balance of probabili-

ties that it would have discovered the evidence in any event.

Improperly Obtained Evidence 317

Subject to rare exception, evidence will be characterized as “con-

scriptive,” thereby satisfying the first of those requirements, where

two conditions are met. The first prerequisite of “conscriptive” evi-

dence is that

1. it is a statement;

2. it is a bodily sample;

3. its discovery involved “the use as evidence of the body” of the

accused, or

4. it is derivative evidence that would not have been discovered

but for the unconstitutional obtainment of the kinds of evidence

described in 1 to 3 above.

The second prerequisite is that the accused somehow be com-

pelled to participate in the creation or discovery of the evidence.

Where evidence is not conscriptive, or it is conscriptive and the

Crown has established that it would probably have been discovered

in any event, its admission will not undermine the fairness of the

trial. Such evidence will nonetheless be excluded where the breach

is serious enough to outweigh the disrepute that would be caused

to the administration of justice by the exclusion of the evidence.

Section 24 provides:

24.(1) Anyone whose rights or freedoms, as guaranteed by this Char-

ter, have been infringed or denied may apply to a court of competent

jurisdiction to obtain such remedy as the court considers appropriate

and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes

that evidence was obtained in a manner that infringed or denied any

rights or freedoms guaranteed by this Charter, the evidence shall be

excluded if it is established that, having regard to all the circum-

stances, the admission of it in the proceedings would bring the

administration of justice into disrepute.

Subsection 24(2) of the Charter is the primary basis for excluding evi-

dence under the Charter.1A party seeking exclusion on the basis that

318 The law of Evidence

1 In R. v. Therens (1985), 45 C.R. (3d) 97 at 128 (S.C.C.), LeDain J. (dissenting on

another point), described subs. 24(2) as the sole exclusionary remedy. It has

since been recognized that judges have discretion to exclude evidence under s.

24(1) to remedy abuses of process, where a stay of proceedings is not appropri-

ate: R. v. Caster (2001), 159 C.C.C. (3d) 404 at 412 (B.C.C.A.). Section 7, pro-

tecting principles of fundamental justice, can also produce the exclusion of