THE CONSTITUTIONAL RIGHT TO PRESENT DEFENCE EVIDENCE IN CRIMINAL CASES

Abstract

Section 7 and section 11(d) of the Charter of Rights and Freedoms should be interpreted to make unconstitutional any exclusionary rules of evidence that prevent an accused in a criminal case from adducing potentially exculpatory information, unless the exclusion of such evidence is demonstrably justifiable in the particular circumstances of that case. An examination of pre-Charter Anglo- Canadian authority reveals that the general principle that an accused be entitled to raise a reasonable doubt as to his guilt was a fundamental component of our non-constitutionalized criminal justice system. This article examines the impact that tthis principle had upon pre-Charter authority, discusses the similarities between that authority and American decisions which develop, at a constitutional level, a similar protection, and describes the impact that the constitutionalization of the principles of fundamental justice and the right to a fair hearing should have upon the role that this principle will play in Canadian jurisprudence.