CRIM 330 Lecture Notes - Lecture 8: Determinative, Information Privacy, Voir Dire
4 Jul 2018
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CRIM 330 - Lecture 8 - Evidence, Search & Seizure
Introduction
● Law of criminal procedure meaningless unless Crown can prove its case, and to prove
its case Crown requires evidence
● System is about “qualified search for truth”... a search for legal truth rather than simply a
search for factual truth
● Unfettered search for factual truth would mean accepting greater state powers &
corresponding diminishing of indiv rights & freedoms
○ Our system not focused on unqualified search for truth
● Of course we want to get to truth, but do not want to be able to do anything to get there
● We have sense of “fair play” when comes to gathering of evidence
○ In attempt to balance our desire for crime control w/ our desire for robust rights &
freedoms we have developed rules around gathering & admissibility of evidence
● It is when state has/may have gone too far in gathering evidence that question of
admissibility of evidence arises
● Challenge - to find right balance
● If state is supposed to act according to law, what do we do when state breaks law?
● Ultimately, if happens, give judges power to exclude evidence illegally obtained
Treatment of Evidence Illegally Obtained - Context
● Legal status of illegally obtained evidence in Canada today didn’t arise w/o context
● Underlying debate - how far should state be able to go in pursuing end?
● Ultimate measure - if state acts unlawfully, perhaps we should just toss evidence out
● Historically under 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”
● In contrast, in US, courts developed strict exclusionary rule under which almost all
illegally obtained evidence considered inadmissible at trial
● Historical common position & US approach represent 2 ends of spectrum re:
admissibility of evidence & have influenced evolution of current Canadian law on
admissibility of illegally obtained evidence
Charter s.24(2) - Use of Illegally Obtained Evidence
● Introduction
○ There is always risk, since Charter protects us against state powers, when state
engaged in gathering evidence, will violate Charter
○ S.24 provides for remedies when there has been Charter violation
■ Violation consists of finding of violation of Charter right/freedom & failure
of gov to justify violation under s.1 of Charter
○ Charter sections most relevant to gathering of evidence - 7, 8, 10(b)
find more resources at oneclass.com
find more resources at oneclass.com
○ S.24(1) provides for general remedies for any Charter violation, but s.24(2)
provides more specific relevant remedy (exclusion of evidence) when issue is
illegally obtained evidence as result of Charter violation
■ 24(2) - 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 circumstances,
the admission of it in the proceedings would bring the administration of
evidence into disrepute
Overview of s.24(2) Application to Exclude Illegally Obtained Evidence
● Burden of proof on person seeking exclusion of evidence to make their case - accused
● Standard of proof is balance of probabilities (civil standard, lower standard)
● To be successful, accused must prove 3 things on balance of probabilities
○ Charter right or freedom was violated
○ Evidence was obtained in process of Charter violation AND
○ Admission of evidence would bring administration of justice into disrepute
■ Implies there may be circumstances where judges to allow illegally
obtained evidence to be allowed in trial
Charter s.24(2) Analysis
● (a) Charter violation
○ Accused must prove on balance of probabilities that there has been violation of
Charter right/freedom before seeking any remedy under s.24 (including 24(2)
remedy of exclusion of evidence)
● (b) evidence was “obtained in a manner…”
○ Direct causal link (Charter violation actually was cause/necessary to obtaining
evidence) has been rejected by SCC
■ Not necessary, if you are accused, to prove that violation of right/freedom
actually caused state to be able to get evidence against you
■ All you have to do is prove that violation occurred while evidence was
being gathered - suggests link b/w the 2
○ Sufficient if Charter violation preceded/occurred while evidence was being
gathered
● (c) Admission of the evidence “would bring the administration of justice into disrepute…”
○ Question of law to be determined by judge on voir dire.. Normally higher (appeal)
courts defer to lower (trial) courts
○ “Disrepute” must be evaluated from perspective of reasonable person,
“dispassionate and fully appraised of the circumstances of the case”
○ SCC has said there are 3 factors/considerations relevant in determining whether
admission of illegally obtained evidence would bring administration of justice into
disrepute
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Crim 330 - lecture 8 - evidence, search & seizure. Law of criminal procedure meaningless unless crown can prove its case, and to prove its case crown requires evidence. System is about qualified search for truth a search for legal truth rather than simply a search for factual truth. Unfettered search for factual truth would mean accepting greater state powers & corresponding diminishing of indiv rights & freedoms. Our system not focused on unqualified search for truth. Of course we want to get to truth, but do not want to be able to do anything to get there. We have sense of fair play when comes to gathering of evidence. In attempt to balance our desire for crime control w/ our desire for robust rights & freedoms we have developed rules around gathering & admissibility of evidence. It is when state has/may have gone too far in gathering evidence that question of admissibility of evidence arises.
