A Jurisprudential “House of Cards”
The Power to Exclude Improperly Obtained Evidence in Civil Proceedings
Keywords:law of evidence, evidence, exclude, civil trial, illegally obtained, judicial discretion, Bentham, inadmissibility, probative value, R v Wray, Charter, law reform
Prior to the enactment of the Charter of Rights and Freedoms, courts were extremely reticent to exclude evidence that had been improperly obtained, preferring instead to advance the “search for truth” by admitting any proof relevant to the matter being tried. In criminal cases, this changed through section 24(2) of the Charter, which provided a specific route to exclusion. But in civil cases, there was no legislated change to the common law. Notwithstanding this fact, trial courts over the past 25 years have begun recognizing a power to exclude evidence that was illegally obtained by a party to the case. Despite the emerging consensus that such a power exists, the relevant jurisprudence reveals a reliance upon questionable lines of reasoning in which the cited authorities are nothing more than other trial level decisions that have done the same, a veritable legal “house of cards”. This development prompts two significant questions that shall be explored in this article: (1) can judges exclude evidence in this manner; and (2) if they can, should they?