Improperly Obtained Evidence

AuthorDavid M. Paciocco/Lee Stuesser/Palma Paciocco
1.1) The Common Law
With the exception of involuntary statements, t he probative value of
evidence does not change because it was obtained illegally. If a court
is interested in find ing out whether the accused committed the crime
charged, throwing out perfectly good evidence because of how it was
discovered therefore seems self-defeat ing. For this reason, the notion
that evidence should be excluded simply because it has been illegally
obtained has always b een controversial. The great American jur ist Ben-
jamin Cardozo captured t his sentiment with his caustic paraphrase of
the American exclusiona ry rule: “The criminal is to go free becaus e the
constable h as blundered.”1
In order to avoid distorted factual findi ngs 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 th at
rule had been violated, but because of the concern that induced state-
ments are unreliable. It was this thinking t hat 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 obta ined
evidence was repudiated. The Supreme Court of Canada sa id that it
was not unfair to admit t he gun into evidence, as it was reliable proof
that would produce an accurate rather than un fair 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 t he 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 disciplin ary action
against police officers were rare. As a result, police illegality was most
often left unaddressed. M any believed that this h armed 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 t he discretion to
exclude illegally obtained evidence,3 but to no avail. It was not unti l
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
exclusiona ry rule.4 This r ule 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:
details/r eportonevidence00law r/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 Charte r”), wh ere
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 draft s reflected an aver-
sion to an American-style rule that excluded crucial evidence, even as
a result of minor violations. At Parliamentary hearings, civ il libertar-
ians, offended by the empty promise of const itutional 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 ch aracteristic feature of the Can-
adian constitutional exclus ionary r ule is that some uncon stitutionally
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 admin istration of justice into disrepute achieved a com-
promise, on its own it offers little real g uidance. 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 Charte r was initially proclaimed, trial courts excluded
little evidence. Then the Supreme Court of Canada sign alled 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].

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