Noticeboard
| Published date | 01 December 2003 |
| Date | 01 December 2003 |
| DOI | http://doi.org/10.1350/ijep.7.4.274.21941 |
| Subject Matter | Noticeboard |
Notices should be sent to Rosemary Pattenden, School of Law, University of East
Anglia, Norwich NR4 7TJ, UK. E-mail: R.Pattenden@uea.ac.uk
Admissibility of evidence infringing privacy—Canada
The European Court of Human Rights and the English courts have been criticised
by English commentators for admitting evidence in criminal proceedings that
was obtained in breach of Article 8 of the European Convention on Human Rights
(respect for private life) on the grounds that the right to a fair hearing guaranteed
by Article 6 will not be impaired. These critics may find the Canadian approach
more acceptable.
The point of departure for the Canadian courts is the Charter of Rights and
Freedoms, s. 24(2) which provides:
Where, in the proceedings … 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 justice into disrepute.
In R v Buhay [2003] SCC 30 security guards at a bus depot found marijuana in a
locker. They had opened the locker using a master key because of the drug’s tell-
tale smell. The marijuana was put back into the locker and the police summoned.
The police seized the marijuana without a search warrant. When the appellant
returned to the locker, he was arrested. The trial judge decided that the police
had violated the s. 8 Charter prohibition on unreasonable search and seizure and
excluded the evidence under s. 24(2) with the result that the appellant was
acquitted. The Manitoba Court of Appeal allowed the Crown’s appeal and
convicted. The Supreme Court of Canada agreed with the trial judge that the
police should have obtained a search warrant because the appellant had a
reasonable expectation of privacy in the contents of the locker and refused to
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upset the judge’s decision to exclude the evidence under s. 24(2). Arbour J referred
to the court’s landmark decision in R v Collins [1987] 1 SCR 265. In that case the
court directed lower courts to consider three factors when applying s. 24(2):
1.
the effect of admitting the evidence on the fairness of the trial,
2.
the seriousness of the police’s conduct, and
3.
the effects of excluding the evidence on the administration of justice.
Where an accused is compelled to incriminate himself (‘conscriptive’ evidence)
adjudicative fairness is affected and the evidence must be excluded because to
receive it could bring the administration of justice into disrepute. The admission
of evidence of unlawfully seized marijuana (‘non-conscriptive’ evidence) does not
affect adjudicative fairness but the second and third factors may still militate in
favour of exclusion. In this case the trial judge had heard evidence from one
officer that obtaining a warrant had not crossed his mind and from the other
that although he had considered obtaining a warrant, he had thought that he
lacked sufficient grounds for one. The former displayed a casual attitude towards
the appellant’s Charter rights and the latter a blatant disregard of those rights.
The police officers could have obtained a search warrant, but did not although
there was no urgency or necessity about the situation. The trial judge had been
of the opinion that the breach of s. 8 was serious and his opinion was entitled to
considerable deference. Arbour J noted that the third Collins factor ‘is generally
related to the seriousness of the offence and the importance of the evidence to
the case for the Crown’ (ibid. at [67]). The trial judge must decide whether the
legal system’s repute will be better served by admitting or excluding the evidence.
Interference with that decision is justified only when the decision reached is
unreasonable. There were precedents for admitting non-conscriptive evidence
such as drugs on the basis that exclusion would bring the administration of justice
into more disrepute than admission, but the evidence should not be admitted
automatically merely because it was essential to the Crown’s case. The trial judge
was concerned that admitting the evidence might encourage similar police
misconduct in the future. ‘The administration of justice does not have to be
brought into disrepute on a national scale before courts may interfere to protect
the integrity of the process within which they operate’ (ibid. at [70]). The judge’s
decision to exclude the evidence was well within the limits of reasonableness.
Video link evidence—Australia
V, a member of the NSW State Parliament, was shot outside his home on 5
September 1994. In 2001 a NSW Supreme Court jury convicted N, a political rival,
of masterminding the murder. The Crown accused him of having conducted
surveillance of the deceased’s home on the night of 3 September 1994. To support
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this claim, the Crown called Mr and Mrs L, who lived in a nearby street, to testify
that they had seen and recognised N, who, being a counsellor, was a well-known
figure in the locality. A voir dire was held at which the judge concluded that Mr
and Mrs L held genuine fears for their safety and that of their family which would
prevent or impede them from giving adequate evidence in court if N discovered
their identity. He directed that the Ls give evidence by video link. The accused
heard but...
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