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

EvidEnCE

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 therefore seems self-defeating. For this reason, the notion

that evidence should be excluded simply because it has been illegally

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

jamin Cardozo captured this sentiment with 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 traditionally 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 Evidence353

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 the 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 was repudiated. The Supreme Court of Canada said

that it was not unfair to admit the gun into evidence as it was reliable

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

taking this 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 illegality of police conduct is in other legal proceedings about

the police off‌icer’s conduct.

The reality, though, was that prosecution and disciplinar 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 Canada therefore recommended that judges have the discretion to

exclude illegally 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 will be violated by almost any illegal investigative

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

ject to potential exclusion under section 24(2), Canada’s constitutional

exclusionary rule.4 This 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.

265) and all illegal dete ntions violate s. 9 of the Charter (R . v. Grant, 2009 SCC

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 perpetuated 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 rule that excluded crucial evidence, even as a result

of minor violations. At Parliamentary hearings, civil libertarians, of-

fended by the 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 As 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 unconstitutionally obtained evidence in question will bring the

administration of justice into disrepute.

Although this formula — whether admission of the evidence would

bring the administration of justice into disrepute — achieved a com-

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

therefore struggled with when to exclude evidence. This struggle has

produced an unstable jurisprudence. Back in 1995 Justice Sopinka de-

scribed the “incremental evolution in the jurisprudence in this area.”6

When the Charter was initially proclaimed, trial courts exclud-

ed little evidence. Then the Supreme Court of Canada signalled that

the exclusionary remedy should be taken seriously.7 By 1997, in 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 rigid 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.

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.

8 (1997), 5 C.R. (5th) 1 (S.C.C.).

9 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. Dolnychuk (2004), 184 C.C.C. (3d) 214

(Man. C.A.).