L'EXCLUSION DE LA PREUVE ILLEGALEMENT OBTENUE ET LA CHARTE

Authors

  • CLAUDE-ANDRE LACHANCE

Abstract

Even if at common law evidence may not be excluded because of the manner in which it was obtained, the courts at times refuse to admit evidence if to do so would be unfair to the accused. On the other hand, section 178.16(2) of the Criminal Code and section 24(2) of the Charter of Rights and Freedoms permit judges to exclude evidence whose admission would be likely to bring the administration of justice into disrepute. Section 24(2), midway between the common law inclusionary model and the American exclusionarv one, is a compromise which requires judges, when confronted with improperly obtained evidence, to give precedence to the due application of the law, or to the search for the truth. In so doing, they must consider the circumstances in which the evidence was obtained in light of criteria found in Scottish and Australian cases, in legal literature and, should it be necessary, the obiter dicta of Canadian judges, who accepted the rule that improperly obtained evidence may occasionally be excluded. Thus, section 24(2) raises questions of judicial ethics . it lays down minimal norms of conduct, while allowing a certain flexibility in the particular circumstances of each case in assessing the manner in which the evidence was obtained.

Keywords:

Evidence

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Published

1984-09-01

Issue

Section

Legal Commentary

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