5. Requirement 1: “Obtained in a Manner”

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University
Pages:367-372
 
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Evidence can be excluded under subsection 24(2) solely where it has been "obtained in a manner" that breached the Charter rights of the applicant. Although a non-remote causal connection between the breach and the discovery of the evidence will satisfy the "obtained in a manner" requirement, a causal connection is not strictly required. Instead, a generous approach is to be taken. Courts should examine whether there is a sufficient connection, given temporal, contextual, and/or causal factors, for it to be said that the evidence has been tainted by the Charter breach.

5. 1) "Obtained in a Manner" and the Sufficiency of the Connection

The phrase "obtained in a manner" requires that the applicant establish a connection between the Charter breach and the discovery of the evidence. The purpose of this requirement is to ensure that evidence will be excluded under subsection 24(2) only if the discovery of the evidence can be linked in a meaningful way to the Charter violation.41

"[T]he sufficiency of the connection between the Charter breach and the subsequent obtaining of the evidence . . . can only be determined by a case-specific factual inquiry."42The "decisive question" is whether the evidence has been tainted by the Charter breach. As the Supreme Court of Canada explained in R. v. Wittwer:43In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and [the evidence. The evidence] will be tainted if the breach and the impugned [evidence] can be said to be part of the same transaction or course of conduct. The required connection between the breach and the [evidence] may be "temporal, contextual, casual or a combination of the three."

While such fact-specific inquiries invariably produce a complicated jurisprudence, in the overwhelming majority of cases the "obtained in

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a manner" requirement does not become a real issue because a causal link between the breach and the discovery of evidence is obvious.

5. 2) Cases with a Causal Connection

A "causal connection" is established where the unconstitutional investigative technique leads to the discovery of the evidence. For example, items found with an unconstitutional warrant meet the test. So, too, do statements that are made during an interview that is being conducted in breach of the right to counsel, or breath samples that are obtained during an arbitrary detention. "Derivative evidence" can also meet the test. Unconstitutionally obtained evidence is "derivative" when it is discovered as the result of finding other unconstitutionally obtained evidence, or where its relevance becomes apparent only because of the Charter breach. In R. v. Burlingham, for example, a gun that was discovered as a result of the confession made by the accused to the police after his right to counsel had been violated was derivative evidence that was ultimately excluded along with the confession.44Even where there is a factual connection between the breach and the discovery of the evidence, where that connection is so remote or attenuated that the factual connection is not material, evidence will not be "obtained in a manner" that violated the Charter and therefore cannot be excluded under section 24(2). In effect, while the Charter breach is an antecedent to the discovery of the evidence, it is not the material cause of its discovery. In R. v. Goldhart,45for example, the police learned of a witness during an unconstitutional search. In a sense, the witness’s testimony was evidence that became available as a result of the Charter breach, yet no "causal connection" was found. The Supreme Court of Canada held that this factual connection was too remote given that simply finding the witness did not make the testimony available. What made the testimony available in a meaningful sense was the decision of the witness to co-operate and his agreement to provide testimony. Had the witness not done so, his discovery during the search would have led to no evidence.

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