The Law of Evidence and the Charter
| Author | David Stratus |
| Pages | 277-333 |
The Law of
Evidence
and
the
Charter
David
Stratas*
A.
INTRODUCTION
The
Canadian
Charter
of
Rights
and
Freedoms1
has
transformed
the law of
evidence.
Before
the
Charter
came into
force,
the law of
evidence consist-
ed of a
general rule that
all
relevant evidence
is
admissible
and a
series
of
exceptions
to
that rule. Some
of
those exceptions reflected important
underlying principles; others reflected outmoded principles.
The
excep-
tions
could
be
modified,
but
seldom were.
Too
often
the
focus
in the
cases
was on
enforcing
the
rules,
not
vindicating
the
principles.
Before
the
Charter
came into
force,
the law of
evidence focused
on
issues
in the
particular proceedings,
not
broad
principles;
for
example,
illegality
and
unfairness were generally extraneous considerations.
Under
the
pre-Charter
law of
evidence, illegally obtained
evidence,
if
relevant,
was
admissible.2
Judges
had
only
a
small, rarely exercised dis-
cretion
to
exclude evidence where
its
admission would
be
"gravely prej-
*
LL.B.
(Queen's),
B.C.L.
(Oxon.),
of the
Ontario Bar;
adjunct
member
of the
Fac-
ulty
of
Law,
Queen's University; partner
of
Heenan
Blaikie
LLP,
Toronto.
As
this paper
was
presented
at the Law
Society
of
Upper Canada Special Lectures
2003, primary emphasis
was
given
to
cases binding
in
Ontario.
1
Part
I of the
Constitution
Act, 1982, enacted
by the
Canada
Act,
1982
(U.K.),
c.
11,
Sch.
B.
2 R. v.
Wray,
[1971]
S.C.R.
272
[Wray].
277
278
DAVID
STRATAS
udicial"
to the
party against whom
it was
adduced,
its
admissibility
was
"tenuous,"
and its
probative value
was
"trifling."3
The
manner
in
which
evidence
was
obtained
was
irrelevant.
In
1960,
the
Canadian Bill
of
Rights
came into
force
but it did not
change
the law of
evidence.
It did not
create
a new
rule
for the
exclusion
of
evidence. Evidence that
was
obtained contrary
to the
Canadian Bill
of
Rights
was
treated
in the
same
way as
illegally obtained evidence
— if it
was
relevant,
it was
admissible.4
The
Charter
fundamentally changed
the law of
evidence.
In
1982,
the
Charter
gave judges
new
standards relevant
to the law of
evidence5
and new
evidentiary
remedies.6
It
gave them
the
power
to
strike down
or
modify
statutory rules
of
evidence.
It
gave them
the
power
to
exam-
ine
common
law
rules
of
evidence
by
assessing whether they
conform
to the
principles made mandatory
by the
Charter.
Having developed
the
confidence
to
measure common
law
rules against
Charter
principles,
judges began
to
measure them against
non-Charter
principles.
The
years
immediately
following
1982 were
a
period
of
tremendous
reform
in the
law of
evidence.
Less
than
one
week
after
this paper
was
presented,
the
Charter
came
of
age:
it
turned twenty-one years old.
At
birth,
the
provisions
of the
Charter
relevant
to the law of
evidence were
not
well understood
and
were
less
than
a
page long.
After
twenty-one years, those provisions
are
well-understood, with tens
of
thousands
of
pages
of
case
law
behind
them.
The
initial, broad rulings have been made. Many
decisions
flesh-
ing out
those rulings have been released. Plenty
of
implications
from
those rulings have been explored.
It is now
appropriate
to
catalogue
and
assess what
the
Charter
has
done
to the law of
evidence.
3
Ibid.;
see
also
to
similar
effect
R. v.
Rothman,
[Rothman].
4
Hogan
v.
R.,
574.
5
E.g.,
the
principles
of
fundamental
justice
under
s. 7 of the
Charter
and the
right
to a
fair
trial under
s.
ll(d).
6 The
jurisdiction
to
grant
an
"appropriate
and
just" remedy under
s.
24(1)
of
the
Charter
and to
exclude evidence that will bring
the
administration
of
jus-
tice into disrepute under
s.
24(2).
The
Law of
Evidence
and the
Charter
279
B.
EXPANDED REMEDIAL JURISDICTION
UNDER
THE
CHARTER
1)
Exclusion
of
Evidence
Under
Section
24(2)
One of the
biggest
changes
introduced
by the
Charter
is the
specific rem-
edy
under section 24(2)
for the
exclusion
of
evidence.7
Section 24(2)
changed
the
traditional position that
a
court
has no
power
to
exclude
evidence because
of the
manner
in
which
it was
obtained. Section 24(2)
gives courts
a
jurisdiction
to
exclude evidence where
its
admission
would
"bring
the
administration
of
justice into
disrepute."
When section 24(2)
was
being considered
in
1981
by the
Joint Com-
mittee
of the
Senate
and
House
of
Commons
on the
Constitution
of
Canada,
it
seems that
the
drafters
intended exclusion only
in
extreme
circumstances.8
The
courts,
particularly
the
Supreme Court
of
Canada,
have certainly
not
followed
the
drafters'
wishes!9
In
Canada, section
24(2)
makes
the
exclusion
of
evidence
for
Charter
breach
a
discretionary matter. This
differs
from
the
American exclusion-
ary
rule.
In the
United States, evidence obtained
as a
result
of a
breach
of
a
constitutional right
is
automatically
excluded.10
In
R. v.
Collins"
the
Supreme Court
developed
a
threefold test
to
guide
the
discretion
to
exclude evidence under section
24(2).
Evidence
will
be
excluded
on the
basis
of
1.
whether
the
admission
of the
evidence would
affect
the
fairness
of
the
trial;
7
Section 24(2) provides
as
follows:
"Where,
in
proceedings under subsection
(1),
a
court
concludes
that
evidence
was
obtained
in a
manner
that infringed
or
denied
any
rights
or
freedoms guaranteed
by
this
Charter,
the
evidence
shall
be
excluded
if it is
established that, having regard
to all the
circum-
stances,
the
admission
of it in the
proceedings
would
bring
the
administration
of
justice into disrepute."
8
Special Joint Committee
on the
Constitution
of
Canada,
Proceedings,
32d
Parl.
sess.
1
(1980-81)
No. 7 at
99-100
(testimony
of E.
Ewaschuk).
9
D.M. Paciocco compellingly argues that
the
Supreme Court
effectively
repealed
s.
24(2)
and
developed
its own
exclusionary rule:
see
"The Judicial
Repeal
of s.
24(2)
and the
Development
of the
Canadian Exclusionary Rule"
(1990)
32
Crim. L.Q. 326.
10
Mapp
v.
Ohio,
(1961);
Elkins
v.
United
States,
364
U.S.
206 at 217
(1960)
[Elkins].
However,
in the
United
States,
the
rule
of
automatic exclusion
is
relaxed where police acted
in
good
faith:
see, e.g.,
United
States
v.
Leon,
468
U.S.
897
(1984).
11
[Collins].
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