Improperly Obtained Evidence
| Author | David M. Paciocco/Lee Stuesser |
| Profession | Justice of the Ontario Court of Justice/Professor of Law, Bond University |
| Pages | 352-402 |
352
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 involuntary 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 crime
charged, throwing out perfectly good evidence because of how it was
discovered t herefore seems self-defeating. For th is re ason, t he notion
that ev idence should be excluded simply because it has been illegally
obtained has always been controversia l. The great American jurist Ben-
jamin Cardozo c aptured this sentiment wit h his caustic paraphrase of
the American exclusionary rule: “The criminal is to go free because the
constable has blundered.”1
In order to avoid the 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 t raditionally excluded not because
that rule had been violated but because of the concern that induced
statements are unreliable. It was this thinking that led common law
1 People v. Defore, 150 N.E. 585 at 587 (N.Y.C.A. 1926).
Improperly Obtai ned Evidence 353
courts to reject involuntar y 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 th is was
unfair and that judges should have the authority to exclude i llegally
obtained evidence was repudiated. The Supreme Court of Canada said
that it was not unfair to admit the gun into ev idence as it wa s reliable
proof that would produce an accurate rather t han 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 i s not whether t he 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 illegality of police conduct is in other legal proceedings about
the police officer’s conduct.
The real ity, though, was that prosecution and disciplinar y action
against police officers were rare. As a result, police illegality was most
often left unaddress ed. 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 L aw Reform Commission
of Can ada t herefore recommended that judges h ave the discretion to
exclude illegally obtained evidence,3 but to no avail. It wa s not until
1982 that things changed with the proclam ation 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 will be violated by almost any illegal investigative
technique, most evidence obta ined illegally by state agents is now sub-
ject to potential exclusion under section 24(2), Canada’s constitutional
exclusionary rule.4 Thi s rule, which criminal lawyers have come to
2 R. v. Wray, [1971] S.C.R. 272.
3 Law Reform Comm ission of Canada, Repor t — Evidence (Ottawa: Law R eform
Commission, 1977) s. 15 of Dra ft Evidence Code.
4 All illegal s earches contravene s. 8 of the Char ter (R. v. Collins, [1987] 1 S.C.R.
32 at paras. 54–57). The Charte r imposes legal obligations r elating to statements
through s. 7 (see the di scussion at chapter 8, section 5.6) where the r ight to
silence is pres erved, and s. 10 where the right to couns el is provided (see the
discus sion at chapter 8, section 7).
THE LAW OF EVIDENCE354
take for granted, was not easily born. Indeed, early drafts of the Charter
would have per petuated the common law position by providing ex-
pressly that the exclusion of evidence would not be a remedy for un-
constitutional conduct. These early drafts reflected an aversion to an
American style r ule that excluded crucial evidence, even as a result
of minor violations. At Parliamentary hearings, civil libertari ans, of-
fended by t he empty promise of constitutional rights without remedy,
fought against this thinking and lobbied for an exclusionary rule. After
much debate, a compromise was reached. It was agreed that uncon-
stitutionally obtained evidence would be excluded, but only in those
cases where its admission would bring the administration of justice
into disrepute.5 A s a result, the characteristic feature of the Canadian
constitutional exclusionary rule is that some unconstitutionally ob-
tained evidence is excluded, while other unconstitutionally obtained
evidence will be admitted. It all depends on whether the admission
of the unconstitutiona lly obtained evidence in que stion will bring the
administration of justice into disrepute.
Although this formula — whether admission of the evidence would
bring the administr ation of justice into disrepute — achieved a com-
promise, on its own it offers little real guidance. Canadian court s have
therefore strug gled wit h when to exclude evidence. This struggle has
produced an un stable jurisprudence. Back in 1995 Justice Sopinka de-
scribed the “increment al evolution in the jurisprudence in th is area.”6
When the Charter was initially proclaimed, trial courts exclud-
ed l ittle evidence. Then the Supreme Court of Canada signalled t hat
the exclusionary remedy should be t aken seriously.7 By 1997, i n R . v.
Stillman,8 the Court had developed an approach which led to the quasi-
automatic exclusion of unconstitutionally obtained “conscriptive evi-
dence” — statements, bodily samples, or evidence derived from the use
by the accused of his body such as by compelled participation in police
line-ups. This aggressive and r igid approach provoked criticism,9 and
5 “August 28, 1980 Draft.” See Roy Romanow, John Whyte, & Howa rd Lesson,
Canada . . . Notwith standing (Toronto: Carswell /Methuen, 1984) at 256.
6 R. v. Burlingham, [1995] 2 S.C.R. 206 at para. 154, Sopinka J.
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.
8 (1997), 5 C.R. (5th) 1 (S.C.C.).
C.C.C. (3d) 553 (Man. C.A.), and R. v. Dolnychuk (2004), 184 C.C.C. (3d) 214
(Man. C.A.).
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