Improperly Obtained Evidence

• Author: David M. Paciocco/Lee Stuesser
• Pages: 349-398

349

CHAPTER 9

IMPROPERLY

OBTAINED EVIDENCE

1. THE EVOLUTION OF THE INADMISSIBILITY

OF SOME IMPROPERLY OBTAINED

EV IDENCE

1.1) The Common Law

With the exception of i nvoluntary statements, the probative value of

evidence does not change because it was obtained illegally. If a court

is interested in f‌inding out whether the accused committed the cr ime

charged, t hrowing out perfectly good ev idence because of how it was

discovered therefore seem s sel f-defeating. For this reason, the notion

that ev idence should be excluded simply because it has been illegally

obtained has always been controversial. The great American jurist Ben-

jamin Cardozo captured thi s sentiment w ith his caustic paraphrase of

the American exclusionary rule: “The criminal is to go free because the

constable has blundered.”1

In order to avoid t he loss of perfectly good proof and distorted

factual f‌indings the common law generally refused to reject evidence

because of how it was obtained. Even statements obtained in viola-

tion of the voluntariness rule were traditional ly excluded not b ecause

that rule had been violated but because of the concern that induced

statements are unreliable. It was this thi nking that led common law

1 People v. Defore, 150 N.E. 585 at 587 (N.Y.C.A. 1926).

THE LAW OF EVIDENCE350

courts to reject involuntary statements but to accept any real evidence

that was discovered as a result of those statements. In the leading Can-

adian common law case of R. v. Wray,2 for example, the Court excluded

Wray’s involuntary confession but admitted t he f‌irearm that Wray’s

statements permitted the police to f‌ind. Wray’s protest that this was

unfair and that judges should have the authority to exclude illegally

obtained evidence wa s repudiated. The Supreme Court of C anada said

that it was not unfair to admit t he gun i nto evidence as it was reliable

proof that would produce an accurate rather than unfair verdict. In

taking thi s approach the common law courts were not saying that they

did not care if police off‌icers broke the law. They were saying that at the

trial of the accused, the issue is not whether the police off‌icers acted

legally; the issue is whether the accused acted illegally, and relevant

reliable evidence on that question should be admitted. The time to deal

with the illegal ity of police conduct is in other legal proceedings about

the police off‌icer’s conduct.

The real ity, though, was that prosecution and d isciplinar y action

against police off‌icers were rare. As a result, police illegality was most

often left unaddressed. Many believed that this harmed the repute of

the administration of justice. Citizens were prosecuted for breaking the

law, but police illegalities were ignored. The Law Reform Commission

of Can ada therefore recommended that judges have the discretion to

exclude il legally obtained evidence,3 but to no avail. It was not until

1982 that things changed with the proclamation of the Charter and the

adoption, in section 24(2), of an exclusionary rule for unconstitution-

ally obtained evidence.

1.2) The Charter

Since the Charter wil l be violated by almost any illegal i nvestigative

technique, most evidence obtained illegally by state agents is now sub-

ject to potential exclusion under this provision; Canada’s constitu-

tional exclusionar y rule.4 This constitutional exclusionary rule, which

2 R. v. Wray, [1971] S.C.R. 272.

3 Law Reform Comm ission of Canada, Rep ort — Evidence (Ottawa: L aw Reform

Commission, 1977) s. 15 of Dra ft Evidence Code.

4 All illegal s earches contravene s. 8 of the Cha rter (R. v. Collins, [1987] 1 S.C.R.

265 [Collins]) and all illegal detent ions violate s. 9 of the Charter (R. v. Grant,

2009 SCC 32 at paras. 54 –57). The Charter impo ses legal obligations relat ing

to statements t hrough s. 7 (see the discussion at ch apter 8.5.6) where the right

to silence is pres erved, and s. 10 where the right to coun sel is provided (see the

discus sion at chapter 8.7).

Improperly Obtai ned Evidence 351

crimina l law yers h ave come to t ake for granted, was not ea sily born.

Indeed, e arly drafts of the Charter would h ave perpetuated the com-

mon law position by providing expressly that the exclusion of evidence

would not be a remedy for unconstitutional conduct. These early draft s

ref‌lected a n aversion to an American style rule that excluded crucial

evidence, even as a result of minor violations. At Parliamentary he ar-

ings, civil libertari ans, offended by the empty promise of constitutional

rights without remedy, fought against t his thinking and lobbied for an

exclusionary rule. After much debate, a compromise wa s reached. It

was agreed that unconstitutionally obtained evidence would be exclud-

ed, but only in those cases where its admission would bring the admin-

istration of justice into disrepute.5 As a result, the characteristic feature

of the Canadian constitutional exclusionary rule is that some unconsti-

tutionally obtained evidence is e xcluded, while other unconstitution-

ally obtained evidence will be admitted. It all depends on whether the

admission of the unconstitutionally obtained evidence in question will

bring the admin istration of justice into disrepute.

Although this formula — whether admission of the evidence would

bring the administration of justice into d isrepute — achieved a com-

promise, on its own it offers little real guidance. Canadian courts have

therefore struggled w ith when to exclude evidence. This struggle has

produced an unstable jur isprudence. Back in 1995 Justice Sopinka de-

scribed t he “incremental evolution in the jurisprudence in thi s area.”6

That incremental evolution culminated recently, in July of 2009, in sig-

nif‌icant changes to the analytical framework for exclusion. This i ncre-

mental evolution is likely to continue.

The earliest lower court cases rendered after the proclamation of

the Charter tended to be slow to exclude unconstitutionally obtained

evidence. Most judges reasoned that the exclusion of illegally obtained

evidence would have to be highly exceptional, given the long history of

admitting it. Things began to change after the f‌irst few Supreme Court of

Canada Charter decisions, which left no doubt that the highest Court’s

position was t hat the Charter had ushered in a new era.7 In its earliest

decisions, however, t he Court offered little technical guidance. That

5 “August 28, 1980 Draft.” See Roy Roman ow, John Whyte, & Howard Le sson,

Canada . . . Notwith standing (Toronto: Carswell /Methuen, 1984) at 256.

6 R. v. Burlingham, [1995] 2 S.C.R. 206 at para. 154, Sopin ka J.

7 Hunter v. Southam Inc., [1984] 2 S.C.R. 145, adopted an aggressive, pur posive

interpretat ion of the Charter and imposed h igh standards for police se arches,

while R. v. Therens, [1985] 1 S.C.R. 613, rejected established and n arrow notions

of detention and, over the st rong objection of Justice McIntyre, e xcluded the

results of alcohol te sting in an impaired d riving case.