Improperly Obtained Evidence

• Author: David M. Paciocco/Lee Stuesser/Palma Paciocco
• Pages: 464-518

464

CHAPTER 8

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 exclusiona ry rule: “The criminal is to go free becaus e the

constable has blundered.”1

In order to avoid distorted factual findings and the loss of per-

fectly good proof, the common law generally refused to reject evidence

because of how it was obtained. Even statements obtained in violation

of the voluntariness rule were traditionally excluded, not because that

rule had been violated, but because of the concern that induced state-

ments are unreliable. It was this thinking that led common law courts

1 People v Defore, 150 NE 585 (NYCA 1926) at 587.

Improperly Obtai ned Evidence 465

to reject involuntary statements but to accept any real evidence that

was discovered as a res ult of those statements. In the leading Canadian

common law case of R v Wray,2 for example, the Court excluded Wray’s

involuntary confession but admitted the firearm that Wray’s state-

ments enabled 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 disciplinary 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 administ ration 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 was not easily born. Indeed, early drafts

2 R v Wray, [1971] SCR 272 [Wray].

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

Commission, 1977) s 15 of Dra ft Evidence Code at 61, online: https://archive.org/

details/reportonevidence00lawr/page/60/mode/2up.

4 All illega l searches contravene s 8 of the Can adian Charter of Rights and Freedom s,

Part I of the Constitution Act, 1982, being Sche dule B to the Canada Act 1982

(UK), 1982, c 11 [Charter](R v Collins, [1987] 1 SCR 265 [Collins]), and all illegal

detentions viol ate s 9 of the Charter (R v Grant, [2009] 2 SCR 353 at paras 54–57

[Grant]). The Charter imposes lega l obligations relating to st atements through s

7 (see the discu ssion in Chapter 7, Section 5.8, “Section 7 of the Charter”), wh ere

THE LAW OF EVIDENCE466

of the Charter would have perpetuated the common law position by

providing expressly that the exclusion of evidence would not be a rem-

edy for unconstitutional conduct. These early drafts reflected an aver-

sion to an American-style rule that excluded crucial evidence, even as

a result of minor violations. At Parliamentary hearings, civil libertar-

ians, offended 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

unconstitutionally obtained evidence would be excluded, but only in

those cases where its admission would bring the administration of jus-

tice into disrepute.5 As a result, the characteristic feature of the Can-

adian constitutional exclusionary rule is that some unconstitutionally

obtained evidence is excluded, while other unconst itutionally obtained

evidence is admitted. It all depends on whether the admission of the

unconstitutionally obtained evidence in question would bring the

administr ation of justice into disrepute. Therefore, the correct question

to consider is not whether evidence should be excluded, but whether

the admission of the ev idence would bring the admi nistration of justice

into disrepute.6

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 jurispr udence. Back in 1995, Sopinka J describ ed

the “incremental evolution in the jurisprudence in this area.”7

When the Charter was initially proclaimed, trial courts excluded

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

exclusionary remedy should be taken se riously.8 By 1997, in R v Stillman ,9

the Court developed an approach that led to the quasi-automatic exclu-

sion of unconstitutionally obtained “conscript ive evidence” — statements,

the right to sile nce is preserved, and s 10, where the r ight to counsel is provided

(see the discu ssion in Chapter 7, Section 8, “Section 10(b)”).

5 “August 28, 1980 Draft.” See Roy Romanow, John Whyte & Howa rd Lesson,

Canada . . . Notwiths tanding (Toronto: Carswell Met huen, 1984) at 256.

6 R v Le, 2019 SCC 34 at para 139 [Le].

7 R v Burlingham, [1995] 2 SCR 206 at para 154, Sopinka J [Burlingham].

8 Hunter v Southam Inc, [1984] 2 SCR 145, adopted an agg ressive, purposive

interpretat ion of the Charter and impose d high standards for police s earches,

while R v Therens, [1985] 1 SCR 613 [Therens], rejected established and na rrow

notions of detention and , over the strong objection of McIntyre J, exc luded the

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

9 R v Stillman (1997), 5 CR (5th) 1 (SCC) [Stillman].