CRIM 330 Lecture Notes - Lecture 7: Determinative, Willful Blindness, Voir Dire

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PART II: The Gathering and Admissibility of Evidence
I. Introduction
- The law of criminal procedure is meaningless unless the Crown can prove its case… and
to prove its case the Crown requires evidence
- Recall that our system is about a “qualified search for truth”... a search for legal truth
rather than simply a search for factual truth
- An unfettered search for factual truth would mean accepting greater state powers and a
corresponding diminishing of individual rights and freedoms
- We have a sense of “fair play” when it comes to the gathering of evidence… in an
attempt to balance our desire for crime control with our desire for robust rights and
freedoms we have developed rules around the gathering and admissibility of evidence
- It is when the state has or may have gone too far in gathering evidence (thus violating
rights and freedoms) that the question of admissibility of evidence arises…
II. The Treatment of Evidence that is Illegally Obtained
1. Context
- The legal status of illegally obtained evidence in Canada today didn’t arise without a
context…
- Historically under the common law illegally obtained real evidence was admissible at
trial:
“It matters not how you get it; if you steal it even, it would be admissible as
evidence” (Leatham, 1861)
- In contrast, in the US the courts developed a strict exclusionary rule (the “fruit of the
poisonous tree” doctrine) under which almost all illegally obtained evidence was
considered inadmissible at trial
- The historical common position and the US approach represent 2 ends of the spectrum re:
the admissibility of evidence, and have influenced the evolution of the current Canadian
law on the admissibility of illegally obtained evidence…
- Poisonous tree = the state acting improperly
- Fruit that would be produced (evidence illegally obtained) = to be poisonous
2. Charter section 24(2): Use of Illegally Obtained Evidence
(a) Introduction
- Section 24 provides for remedies when there has been a Charter violation
- A violation consists of a finding of a violation of a Charter right or freedom, and
failure of the gov’t to justify the violation under section 1 of the Charter
- The Charter sections most relevant to the context of gathering of evidence are
sections 7, 8, 10(b)
- Section 7: Life, liberty, and security of the person- right to remain silent
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