Improperly Obtained Evidence

• Author: David M. Paciocco/Lee Stuesser
• Pages: 349-396

349

Chapter 9

IMPROPERLY

OBTAINED EVIDENCE

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 ev idence should b e excluded, then, depends on

priorities. If priority is given to making accurate factual f‌indings, the

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

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

At common l aw, the view was taken that the propriety of police

conduct wa s not at issue in a criminal prosecution; the guilt of the

accused wa s. The goal was to arrive at accurate decisions about those

factual issues th at were b efore t he court. Hence, illegally or unfairly

obtained evidence was receivable. Admissibility depended on the rel-

evance and probative value of the in formation, not upon how it got

before the court.

Common law courts did not consider that they were condoning

improper police conduct by accepting the fr uits of improper invest iga-

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

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

THE LAW OF EVIDENCE350

at issue during the criminal tr ial where the evidence was being offered.

The police misconduct could be dealt with another day i n a separate

hearing where it wa s 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

disciplinar y proceeding. In practice, though, it was rare for anything to

be done about the use of improper investigative tech niques. 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.

Jurisprudence relating to the operation of t his exclusionary rem-

edy under subsection 24(2) i s c urrently in a state of f‌lux. As will be

explained later in this chapter, the most authoritative approach at the

time of wr iting thi s edition of the text requires the use of a “two-box”

approach descr ibed by Supreme Court of Canada case law, most par-

ticularly in R. v. Stillman.1 Usi ng the two-box approach, where an e x-

clusionary application i s brought after ev idence ha s been obtained in

a manner t hat violated t he Charter, a different approach is to be taken

depending upon which “box” the evidence falls into. If the evidence

is characterized as “conscriptive” and would not have been discov-

ered without the breach, it is placed in the f‌irst box — the unfair tr ial

box — and is automatically excluded. If the evidence is not conscriptive

or, if conscriptive it would nonetheless have been discovered without

the Char ter bre ach, the evidence goes in the second box — the balan-

cing box — where its admission i s to b e deter mined by weighing the

seriousness of the breach and balancing it again st the negative impact

that exclusion would have on the repute of t he admi nistration of jus-

tice. Thi s r igid two-box approach is fa lling out of favour. After some

appellate court judges questioned the w isdom of approaching matters

in this way,2 Justice Lebel opened t he door to a more f‌lexible approach

in R. v. Orbanski3 by suggesting that the ‘two-box” approach stems from

a misunderstanding of earlier authority. Whether that is so is question-

1 (1997), 5 C.R. (5th) 1 (S.C.C.). Although the approach was g iven its closest

structure i n Stillman, other decisions s uch as R. v. Elshaw, [1991] 3 S.C.R. 24 at

25, and R. v. Bartle, [1994] 3 S.C.R. 173 at para. 66 had b een interpreted by most

courts as req uiring the same approach. W hat left matters in some doubt prior

to Stillman was th at there were other Supreme Court of Can ada decisions that

did not f‌it this pat tern, including R. v. Tremblay (1987), 60 C.R. (3d) 59 (S.C.C.);

R. v. Mohl (1989), 69 C.R. (3d) 399 (S.C.C.); and R. v. Dewald (1996), 103 C.C.C.

(3d) 382 (S.C.C.).

2 See R. v. Richf‌ield (2003), 14 C.R. (6th) 77 (Ont. C.A.); R. v. Petri (2003), 171

C.C.C. (3d) 553 (Man. C.A.), and R. v. Dolynchuk (2004), 184 C.C.C. (3d) 214

(Man. C.A.).

3 [2005] 2 S.C.R. 3.

Improperly Obtai ned Evidence 351

able,4 but what is cle ar is t hat there i s now a sweep of authority i n ap-

pellate courts rejecting the two-box approach and adopting a balancing

approach for all unconstitutionally obtained evidence. The matter is

squarely before the Supreme Court of Canada in R. v. Grant.5 It is not

clear whether the Court will reject the two-box approach but there is

a real likelihood that it wil l. Caution should therefore be taken when

reading the following proposition and the sections dealing with the

Second Requi rement — whether the “admission of the evidence i n al l

of t he circumstance s [c]ould bring the administration of ju stice into

disrepute.” The approach we take is to de scribe the law at the t ime we

are writi ng and to identi fy the alternative, more f‌lexible approach. We

have chosen to do so for two reasons. First, it would be presumptu-

ous to assume th at the two-box approach will disappear. Second, even

if t he Supreme Court of Canada does eradicate a form al t wo-box ap-

proach it is safe to predict that the concepts th at inspired t he two-box

approach will continue to be inf‌luential; evidence that is “conscriptive”

under the existi ng def‌inition and that would not have been discovered

without the Charter breach will still be more likely to require exclusion

to protect the repute of the administration of justice than other kinds of

unconstitutionally obtained proof.

2. SeCtION 24 OF the

Charter

INt rODUCeD

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 r ights have bee n

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”

4 The reason why Stillman is best i nterpreted as supporti ng the two-box approach

is explai ned with clarity by Jus tice Smith in R. v. Shepherd (2007), 45 C.R. (6th)

213 (Sask. C.A.). In R. v. Padavattan (2007), 45 C.R. (6th) 405 at paras. 68 et seq.

(Ont. S.C.J.), Justice Duchar me expressed the v iew that Stillman’s two-box ap-

proach is bindi ng, but he considered breathaly zer evidence to fall outside of the

unfair t rial box.

5 (2006), 209 C.C.C. (3d) 250 (Ont. C.A.), leave to appeal to S.C.C. granted, [2007]

S.C.C.A. No. 99.