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The Exclusionary Rule

  • March 16, 2014
  • Clayton Rice, K.C.

In 1974 Parliament enacted Part IV.1 [now Part VI] of the Criminal Code known as the Protection of Privacy Act1 The legislation was a response to wiretapping by the police that was unsupervised by Parliament or the judiciary. 2 The exclusionary rule was contained in s. 178.16(1) of the Act that provided for the automatic exclusion of an unlawfully intercepted private communication from evidence at a trial as well as evidence obtained as a result of the intercept. 3  There was an exception. The intercept could be used in court if the originator or recipient “expressly consented” to the admission.

Section 178.16(2) of the Act allowed for limited judicial discretion to admit into evidence an inadmissible private communication or derivative evidence. The discretion was applicable in cases where the private communication or derivative evidence was relevant and the inadmissibility arose from a defect in form or an irregularity in procedure.

The exclusion section was modified by Parliament three years later. 4  The amendment added a trailer that signaled a softening of the exclusionary rule. Evidence obtained directly or indirectly as a result of information acquired by an intercept would not be inadmissible by reason only that the intercept was itself inadmissible as evidence. The amendment appeared in the Code in the Revised Statutes of Canada in s. 189. Sub-section (2) of s. 189 permitted a judge or magistrate to exclude derivative evidence if the admission would bring the administration of justice into disrepute. This is the first time that the disrepute test was introduced into the law of evidence in Canada. Gradually the burden on the state to establish lawfulness was shifting to a burden on the defendant to establish unlawfulness.

The shift was completed by two more developments. The first was the patriation of the Canadian Constitution in 1982 that entrenched the Charter of Rights. 5  Section 24 of the Charter is the remedy provision that includes the exclusion of evidence if its admission would bring the administration of justice into disrepute. The second was the repeal of the automatic exclusionary rule in the Code by Parliament in 1993. 6

The disrepute test has been a hotbed of contention over the last twenty years. Whether it is good for the country and the protection of privacy is the debate.

As we will see in our discussions – the jury is still out!

1 An Act to amend the Criminal Code, the Crown Liability Act and the Official Secrets Act, S.C. 1973-74, c. 50.
2 See: R. v. Demeter (1975), 19 C.C.C. (2d) 321 (Ont. H.C.J.) per Grant J. at pp. 323-5 and 328-30.
3 The term “derivative evidence” is used to describe evidence obtained as a result of an unlawful intercept.
4 Criminal Law Amendment Act, 1977, S.C. 1976-77, c. 53, s. 10.
5 Constitution Act, 1982, Schedule B of the Canada Act 1982 (UK).
6 An act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radio Communication Act, S.C. 1993, c. 40, s. 10.

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