The exclusionary rule generally requires that evidence that results from an unlawful detention or arrest be excluded from court. But not always. Suppose a warrant is out for your arrest. An officer who's unaware of the warrant detains you, but not because you were doing anything wrong.
Maybe the officer is speculating that you're up to no good. Whatever the reason, it's not reason enough: The policeperson doesn't have reasonable suspicion that you have committed or are committing a crime.
The officer asks for your identification, has dispatch run a check, and learns about the warrant. The cop arrests and searches you, finding some kind of contraband in your pockets. Even though the stop was illegal because it wasn't based on reasonable suspicion, the contraband could very well be admissible against you in court.
The U. Supreme Court has held, essentially, that arrest warrants can retroactively justify illegal detentions. For much more on the rules in this area, see this article on the "attenuation doctrine. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site.
The attorney listings on this site are paid attorney advertising. In some states, the information on this website may be considered a lawyer referral service. Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Grow Your Legal Practice. Meet the Editors. Paterson [] 1 S. Overall, the admissibility of the seized evidence must be determined on a case-by-case basis, even in the case of a serious unjustifiable limit, such as the unlawful entry into a home Silveira, supra; R.
Feeney , [] 2 S. The seriousness of the rights limitation, when combined with the effect on the administration of justice of regularly admitting such evidence, can result in the exclusion of independently existing real evidence Greffe, supra; Kokesch, supra. The second inquiry requires an evaluation of the extent to which the unjustifiable limit actually undermined the interests protected by the right infringed. The impact of a given Charter limitation may range from fleeting and technical to profoundly intrusive.
For example, an unreasonable search contrary to section 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans their dignity, is more serious than one which does not Grant, supra , at paragraph 78; Paterson , supra at paragraph The search of a personal computer is one of the most intrusive invasions of privacy that can be imagined R.
Morelli , [] 1 S. The fact that control of access to an electronic conversation is shared by two or more participants does not negate the impact of an illegal search and should not, by itself, favour admission of the evidence. To conclude otherwise would be to reintroduce at the section 24 2 stage the risk analysis that has been rejected under section 8 of the Charter R.
Marakah , [] 2 S. Physical vulnerability can also be a consideration. Regard should also be had for whether the evidence could have been obtained without the unjustifiable Charter limitation Grant , supra , at paragraph ; R. Dyment , [] 2 S. Mellenthin , [] 3 S. The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion Grant , supra at paragraph Askov , [] 2 S.
This line of inquiry is most important where only one of the two preceding lines of inquiry favours exclusion Le , supra at paragraph A judge on a section 24 2 application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but also the impact of failing to admit the evidence Grant, supra at paragraph 79; Collins, supra.
Further disrepute will result from admitting evidence that has the effect of depriving the accused of a fair hearing, or "from judicial condonation of unacceptable conduct by the investigatorial and prosecutorial agencies" Collins, supra at paragraph At the same time, disrepute may also result from the exclusion of evidence and this, too, must be considered Collins, Ibid.
However, the concern for truth-seeking is only one consideration under a section 24 2 application. The view that reliable evidence is admissible regardless of how it was obtained R. Wray , [] S. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused.
While the seriousness of the offence at issue may also be a valid consideration under this line of inquiry, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Thus, on the one hand, it may be reasonable to suppose that the more serious the offence in question, the greater the likelihood that the administration of justice will be brought into disrepute by the exclusion of the evidence, particularly where the evidence is crucial to conviction Plant , supra ; R.
Borden , [] 3 S. Harrison , 89 O. Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences Harrison SCC , supra , at paragraph The patterns which have emerged under section 24 2 in respect of particular types of evidence are likely to serve as guides to judges faced with section 24 2 applications in future cases Grant, supra at paragraph Quite apart from section 24 2 , under the common law confessions rule, where a statement is made to a recognized person in authority, regardless of whether its maker is detained at the time, it is inadmissible unless the Crown can establish beyond a reasonable doubt that it was made voluntarily.
With this in mind, while there is no absolute rule excluding Charter-infringing statements under section 24 2 , it is clear that statements obtained in breach of the Charter are generally excluded by the courts on the ground that admission, on balance, would bring the administration of justice into disrepute Grant, supra , at paragraph The three lines of inquiry under section 24 2 described above in Part 6 support the general, although not automatic, exclusion of statements obtained in violation of the Charter Grant, supra at paragraphs Both of these considerations will call for exclusion R.
Hart , [] 2 S. Bodily evidence refers to evidence taken from the body of the accused, such as DNA evidence and breath samples. In reaching this conclusion, the majority noted that the security of the body should be recognized as being just as worthy of protection from state intrusion aimed at compelled self-incrimination as are statements. As such, evidence obtained by means of a significant compelled bodily intrusion without consent or statutory authorization was considered, as a general rule, to adversely affect the fairness of the trial Stillman, supra at paragraph This resulted in a near-automatic exclusionary rule for bodily evidence which was obtained in a manner contrary to the Charter Grant, supra at paragraph Stillman provided a simple method by which trial judges could approach the trial fairness factor from Collins, supra.
Ross , [] 1 S. Brydges , [] 1 S. Hebert , [] 2 S. Broyles , [] 3 S. Babinski , [] 3 S. Richfield , C. Dolynchuk , , C. Banman , , C. Here, just as with respect to other types of evidence, admissibility should be determined by inquiring into the effect admission may have on the repute of the justice system, having regard to the seriousness of the police conduct, the impact of the Charter limitation on the protected interests of the accused, and the value of a trial on its merits Grant, supra at paragraph With respect to non-bodily physical evidence, the degree to which the first inquiry seriousness of Charter-infringing state conduct militates in favour of exclusion will depend on the extent to which the conduct is deliberate or egregious.
The fact that evidence obtained through an invasive search is not itself a bodily sample cannot be seen to diminish the seriousness of the intrusion Grant , supra at paragraph ; Simmons, supra at paragraphs ; R. Golden , [] 3 S. Derivative evidence is evidence indirectly obtained as a result of a Charter limit. More particularly, it is essentially conscriptive "real" evidence.
It involves an unjustifiable Charter limit whereby the accused is conscripted against himself usually in the form of an inculpatory statement which then leads to the discovery of an item of real evidence. In other words, the unlawfully conscripted statement of the accused is the necessary cause of the discovery of the real evidence Stillman, supra. As noted above, prior to Grant, supra , if the evidence under consideration was classified as conscriptive, that is to say self-incriminating, it was necessary to proceed to the second step of the Collins analysis and determine whether the admission of the evidence would render the trial unfair.
Since derivative evidence is a subset of conscriptive evidence, the same approach was generally taken in this context. Where it could be said that the trial's fairness would be affected by admission of such derivative evidence, the evidence was generally to be excluded, although this was not to be an automatic exclusion, and the other factors seriousness of the violation and the effect of exclusion were still to be assessed by a court as part of the analysis Stillman, supra ; R.
Generally, prior to Grant, supra , the admission of such conscriptive evidence was not seen as rendering the trial unfair where the impugned evidence would have been discovered in the absence of the unlawful conscription of the accused. As discussed above, this approach to the exclusion of evidence under section 24 2 has now been rejected by the Supreme Court. However, it must be noted that discoverability still retains a useful role in assessing the actual impact of the breach on the protected interests of the accused since it allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence.
Conversely, in cases where it cannot be determined with any confidence whether evidence would have been discovered in the absence of the statement, discoverability will have no impact on the section 24 2 inquiry Grant, supra , at paragraph Provincial appellate courts should not readily interfere with the decisions of trial judges with respect to the application of section 24 2. Loewen , [] 2 S. Mack , [] 3 S.
Thus, it would still seem to be the case that unless the trial judge makes an unreasonable finding of fact or legal error in applying section 24 2 , the issue should not be reopened Mellenthin , supra ; Grant , supra; R. Goncalves , [] 2 S. It follows, of course, that an appellate court may reverse a trial judge who has erred as to the applicable legal principles, R. Duguay , [] 1 S. The police knew that permission from those countries had been refused for the use of such devices but went ahead anyway.
The consequent abuse of process application failed, a decision upheld on appeal. However, that case was an abuse of process case, rather than an exclusion of evidence case. There is still plenty of scope to argue for exclusion of unlawfully obtained evidence because the right to a fair trial under Article 6 imports a certain standard on the behaviour of the State including police, prosecutors and Courts which can be considered when considering the fairness of the trial.
As is often the way much will depend not on the alleged conduct of the police officers, but in the preparation of the defence case — have the prosecution been put on notice; has a certain issue been raised in the Defence Statement; is the matter on the Court record?
In criminal litigation there are few guarantees except that preparation is everything. Jonathan Lennon is a Barrister specialising in serious and complex criminal defence cases at Doughty Street Chambers, London. He has extensive experience in all aspects of financial and serious crime and the Proceeds of Crime Act He is approachable, takes a common-sense attitude and is an exceptional advocate.
This browser is not actively supported anymore. For the best passle experience, we strongly recommend you upgrade your browser. All Posts. March 16, 6 minutes read The Exclusion Of Unlawfully Obtained Evidence: When a breach of the rules leads to evidence being excluded. Jonathan Lennon. The Appeal Court said: In the present case, we have no material which would lead us to suppose that the judge erred in concluding that the police officers were acting in good faith. Human Rights Overlaying the s78 and the common law rules is the Human Rights Act and the right to a fair trial under Article 6 of the Convention.
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