The Admissibility of Evidence in Criminal Proceedings: A Principled Approach in a Post-Charter World

• Author: Mr. Justice David H. Doherty
• Pages: 1-15

The

Admissibility

of

Evidence

in

Criminal

Proceedings:

A

Principled Approach

in a

Post-Charter

World

Mr.

Justice

David

H.

Doherty*

A.

INTRODUCTION

In

considering

admissibility

of

evidence

in

criminal proceedings

in

broad

terms,

I

will advance

two

claims.

First,

in the

last

twenty years,

courts

in

Canada have abandoned

a

rules-based approach

to

questions

of

admissibility

in

favour

of an

approach that determines admissibility

by the

application

of

broad principles

to

specific

fact

situations.

The

sec-

ond

claim

I

will

put

forward

relates

to

section 24(2)

of the

Charter.

I

will

suggest that, contrary

to the

general approach

I

have

just

described,

the

courts,

when determining admissibility under section

24(2),

have devel-

oped

a

rules-based approach where

the

evidence

is

characterized

by the

courts

as

conscripted evidence.

On

this approach, evidence

is

excluded

under

section 24(2) without

any

real assessment

of the

benefits

flowing

from

admission

or the

harm caused

by

exclusion

of the

evidence

in the

specific

circumstances

of the

case.

I

will

further

suggest that this rules-

based approach

to

section

24(2),

coupled with

an

interpretation

of

that

section that

has

little connection

to the

language

used,

has

resulted

in

the

exclusion

of

reliable evidence

and the

sacrifice

of the

truth

for

little

or

no

collateral gain.

Of

the

Ontario Court

of

Appeal.

1