EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, April 22, 2008

Blame Canada: Legal Experts Expect Supreme Court Of Canada To Get Rid Of Per Se Rule Excluding Illegally Obtained Evidence

Will the Supreme Court of Canada use the case of 18 year-old Donnohue Grant to rewrite the rules on when illegally obtained evidence is nonetheless admissible at trial?  Apparently, that's the consensus among the movers and shakers in Canadian legal circles.  One late autumn afternoon in 2003, Toronto Police officers grew suspicious as they watched Grant amble along a sidewalk in Toronto's east end, not far from several schools.  The officers observed Grant acting "nervous" and "twitchy" and thus stopped and questioned him for six minutes.  Whether acting out of fear, intimidation or simple honesty, Grant thereafter blurted out, "I have a firearm" and emptied his pockets, revealing a loaded gun and a bag of marijuana.  The Ontario Court of Appeal found that his rights were violated, yet it upheld the conviction and the 18-month sentence because of the seriousness of the evidence found by the officers.

On April 24th, the Supreme Court of Canada will hear Grant's appeal, with the main issue being that the Court of Appeal's decision rolled back rights that have been established since the Supreme Court of Canada's revolutionary 1997 ruling in R v. Stillman.  Before considering that case, let's look at how Canada handles illegally obtained evidence.  "A multi-factored test is used to determine whether illegally obtained evidence will be excluded in Canada: (1) whether the admission of the illegally obtained evidence affects the fairness of the trial; (2) the serious of the violation; and (3) whether the exclusion of the evidence calls the administration of justice into disrepute." Wesley MacNeil Oliver, Toward a Better Categorical Balance of the Costs and Benefits of the Exclusionary Rule, 9 Buff. Crim. L. Rev. 2001, 259 (2005).  So, what did R v. Stillman add to this framework?  It held that "[t]he admission of conscriptive evidence, evidence that emanates from the body of a person, is regarded to affect the fairness of the trial if the evidence is unlawfully gathered." Id.  In other words, illegally obtained conscriptive evidence is per se inadmissible pursuant to R v. Stillman.  And because "[c]onscriptive evidence includes confessions," id., Grant's confession that he had a firearm would be inadmissible.

So, why do Canadian legal experts think that the high court will circumscribe the ruling from R v. Stillman?  Well, Stillman was a product of Chief Justice Antonio Lamer's court, a bench which consistently stood up for the rights of the criminally accused.  Conversely, under the leadership of new Chief Justice Beverley McLachlin - who dissented in the Stillman decision - that willingness has been fading fast.    



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