A trial is about speaking the truth
Prior to the Charter of Rights and Freedoms, the balance was in favour of admissibility of evidence, no matter how it was obtained, as it was the best method for getting at the truth.
Since the Charter, the balance has swung towards protection of individual rights, and evidence that has been obtained contrary to certain Charter principles is often excluded, with unpredictable results.
Prior to the adoption of the Canadian Charter on Rights and Freedoms in 1982, the common law dealt with illegally or improperly obtained evidence in a very relaxed manner.
Basically, there WAS a rule of law or judicial discretion to exclude evidence because of the improper or illegal method by which it was obtained.
The general rule of admissibility was that all evidence was
relevant
probative
true
reliable
Once the Charter became law, the right to certain legal protections became the law of the land.
Everyone, EXCEPT a criminal suspect or an accused became entitled to the protection of the rights contained in the Charter.
What two things are still hotly debated in legal circles concerning evidence?
how an accused should be treated in jail
how many years should an accused receive for manslaughter
balancing of the rights of the individual
seeking the truth
Which sections of the Charter of Rights and Freedoms contain Legal Rights?
sections 24-32
sections 19-23
sections 7-14
Which section says "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
s.9
s.8
s.11
s.7
Which is the search or seizure section?
s.6
s.0
Everyone has the right not to be arbitrarily detained or imprisoned says which section?
s.2
s.12
s.10
Everyone has the right on arrest or detention to:
be promptly informed of the reason for arrest/detention
retain and instruct counsel without delay and to be informed of that right
call their mom and tell them that they have just been arrested
have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful
Which section deals with unreasonable delay, reasonable time, not to be compelled and presumption of innocence until proven guilty?
s.19
s.1
Cruel and unusual punishment is covered by which section?
s.14
s.4
Incriminating evidence is covered in section 13:
If I don't speak English or French I cannot get someone to help me in court
Section 14 deals with foreign languages and people who are hearing impaired.
The exclusion of illegally or improperly obtained evidence is an EXTREMELY POWERFUL REMEDY for the violation of constitutional rights.
Section 24(2) contains the remedy for exclusion of improperly obtained evidence.
What is likely to happen if it is found that the admission of evidence obtained in violation of an accused person's Charter rights?
He could be imprisoned
He could be flogged
Case could be dismissed
He could receive 25 years
The exclusionary rule is NOT controversial at all in Canada.
Section 24(1) deals with Enforcement
For the defence to seek the right to an effective remedy such as exclusion of illegally or improperly obtained evidence, the defence must prove
that the accused's rights or freedoms have been infringed or denied
that the evidence was obtained in a manner that infringed or denied that right or freedom
that they used force
that they threatened the accused
The Plaintiff bears the initial burden of presenting evidence and of persuading the judge, on the civil standard of balance of probabilities that a violation of the accused's Charter rights occurred that could not be saved by s.1, the Oakes Test.
The first opportunity the Supreme Court of Canada had to analyze s.24(2) and provide guidance to trial judges on its application was in 1987 in the case of
R. v. Mohan
R. v. Khan
R. v. Collins
R. v. Baldree
What were the grounds of defence in the R. v. Collins case?
search took place without a warrant
no reasonable grounds
without identifying the officer
Which section of the Charter did they claim was violated?
In the R. v. Collins matter the court of first instance held that
there was a violation of Charter rights, and she was set free
there was no violation of Charter rights, but she was convicted
there was a violation of Charter rights, but she was convicted
In the Collins matter, the Court of Appeal upheld the conviction but this was overturned by the Supreme Court
The Collins test had 9 criteria for deciding the admissibility or exclusion of improperly obtained evidence.
What are the three categories into which the 9 criteria are divided?
Fairness at Trial
Seriousness of the Violation
How many persons were convicted
Effect of exclusion
Name 6 of the Collins criteria
What kind of evidence was obtained?
What Charter rights were infringed?
Was the violation serious or technical?
Was the violation deliberate or inadvertent?
Were the circumstances urgent or necessary?
is the offence serious?
Was anyone else looking?
The Collins test was replaced by another in 1997. What was the name of that case?
R. v. Stinchombe
R. v. Stillman
Why did the Supreme Court look for another case? The Collins test was considered:
confusing and complicated
hard and compelling
vague and misleading
too easy to understand and apply
Intervenors were NOT allowed in the Stillman case
Mr. Stillman willingly gave the police hair, buccal swab and teeth impressions.
Mr. Stillman was set free by both the court of first instance and the Court of Appeal
Conscriptive Evidence is evidence that could NOT be collected without the accused person's participation.
Non-conscriptive Evidence is evidence that COULD be collected without the accused person's participation.
In the Stillman case, the bodily samples were NOT real evidence even though the accused had been compelled by the produce.
Examples of conscriptive evidence would be
forced confession
DNA sample
a gun
Examples of non-conscriptive evidence would be
a buccal swab
hair follicles
drugs
What other factors did the court list to support the fact that the evidence was improperly obtained?
the breach was very serious
the police used threat of force and intrusive measures
there was a blatant disregard of the lawyer's letter and ignored the fundamental rights of the youth
they did not ask the youth nicely
The tissue was not conscripted evidence because the police FORCED the accused to produce it.
The tissue in Stillman's case was admissible.
The wording of section 24(2) calls for a review of all the circumstances and what appears to be recommended by many of the academics is the return to the balancing as initially envisioned by the drafters of the Charter. The Stillman approach was criticized for not providing this balance.
The Stillman case was replaced by the R. v. Grant case in 2009.
Before the 2009 decision in R. v. Grant, the distinction between conscriptive and non-conscriptive evidence was really important.
If the evidence was classified as conscriptive, it was almost certainly excluded pursuant to s24(2) of the Charter because the law held that admitting conscriptive evidence obtained in violation of the accused's Charter rights made the trial unfair.
What were the concerns raised in light of the 2009 Grant case?
that the jurisprudence developed a quasi-automatic exclusionary rule
that the courts appear to distinguish between a hierarchy of rights rather than a balance of rights
that the accused had no rights
A criminal action is started by laying an information.
The two types of evidence are
Direct
Indirect
Oral
Audio
Indirect Evidence is also called:
Documentary
Real
Circumstantial
Evidence can be introduced in one of three ways.
Which of the following ways is NOT a way that evidence can be introduced into court:
Directly
Orally
Direct evidence can be Oral or Real
Oral evidence is the most common type of direct evidence.
Real evidence is only receivable if the following four criteria are met:
relevant to the matters in issue
identified as genuine, and therefore
authenticated, and be
connected tot he issues before the court
known by every body even the jury
Circumstantial Evidence is also known as Indirect Evidence
Circumstantial evidence does NOT require an inference to get from the evidence to a material fact.
A document must be authenticated by either
calling on the newspaper that printed it
calling the writer as a witness
calling a witness to the document's preparation, or
calling a handwriting expert or expert in typeface
There are three ways that courts assess the admissibility of photographs and videos
The three ways in which courts assess the admissibility of photographs and videos are
calling the witness
their accuracy
their fairness and absence of potential to mislead
verification of a witness that they are what they purport to be
Consciousness of Guilt is a term given to the behaviour of an accused that may be admitted as evidence that he was behaving in a guilty manner.
Subsequent Remediation or Repair is NOT the civil equivalent to consciousness of guilt.
The courts are careful about accepting evidence of subsequent repair for two main reasons:
evidence lacks relevance
it is argued on policy grounds that if evidence of subsequent remedial measures
everybody knows they did it
What is the best evidence rule?
...that secondary evidence, such as a copy or fax, will not be admissible if an original document exists
... that real evidence, such pictures of a gun or knife will not be admissible
Section 31.2(1)(2) of the Canadian Evidence Act is where provisions for the Best Evidence Rule is found
