9. Improperly Obtained Evidence and Civil Cases

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

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The general common law rule that relevant evidence is admissible regardless of how it has been obtained applies in both civil and criminal

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cases. While this rule has been displaced by the Charter, the Charter’s exclusionary remedy is tenable only against the state. The conventional view is that subsection 24(2) is therefore available only in criminal cases and in civil cases conducted before courts of competent jurisdiction where the state seeks to rely on unconstitutionally obtained evidence, but not in private civil proceedings.218Judges conducting civil trials do, however, have an exclusionary discretion. This discretion should be exercised consistently with Charter values and can therefore result in the exclusion in private civil litigation of unconstitutionally obtained evidence.219In Mooring v. Canada (National Parole Board)220the Supreme Court of Canada recognized that the duty of fairness that applies to public authorities to make administrative decisions can, depending on the case, require the exclusion of unconstitutionally obtained evidence based on concerns related both to fairness and reliability. Had the police misconduct been egregious, the parole board review panel may have been obliged to exclude the evidence. In Thomsen v. Alberta (Transport and Safety Board)221it was also held that an administrative tribunal under its duty of fairness must consider the source of evidence or information, including whether it was gathered in breach of the Charter, and decide whether to exercise its discretion to receive the evidence.

In exercising this discretion, context is critical. In R. v. Daley, dealing with proceeds of crime legislation even in a criminal milieu, the Alberta Court of Appeal indicated that a section 24(2) analysis would not include the criminal law’s trial fairness doctrine that excludes automatically conscriptive evidence because the notion "makes little sense in [a] proceeding where there are no charges, no accused and no risk of conviction."222The Ontario Court of Appeal made the same point in P.(D.) v. Wagg.223Even though the automatic exclusion of conscriptive evidence has now been rejected for section 24(2) cases, the under-

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lying point made by these courts remains true. Practices developed in criminal cases should not be mimicked in civil cases without regard for the differences in interests, concerns, and principles between criminal and civil litigation.

[218] Monsanto Canada...

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