The Exclusion of Evidence under the Canadian Charter of Rights and Freedoms: What to Do and What Not to Do

McGILL LAW JOURNAL

REVUE DE DROIT DE McGILL

Montreal

1984

Volume 29

No 4

The Exclusion of Evidence under the Canadian Charter of
Rights and Freedoms: What To Do and What Not To Do

Yves-Marie Morissette*

The enactment of the Canadian Charter of
Rights and Freedoms changed fundamentally
the law governing the exclusion of illegally
obtained evidence. The actual effect of the
constitutional guarantee contained in section
24(2) however will depend upon the inter-
pretation accorded to this provision. After a
brief review of the law prior to the Charter,
the author isolates the three key issues to be
addressed when applying section 24(2): caus-
ation; the factors to considerin decidingwhether
to exclude evidence; and the meaning of the
phrase to “bring the administration ofjustice
into disrepute”. Critically considering a wide
selection of case law and doctrinal commen-
tary on the exclusionary principle, the author
urges Canadian lawyers and judges to ex-
amine and profit from the experience of other
jurisdictions. He draws a number of conclu-
sions which in his opinion lead to a correct
interpretation of section 24(2). The author
rejects public opinion analysis as a useful
method of deciding when to exclude evi-
dence, and considers the logic of deterrence
not to be highly relevant in the Canadian con-
text. Finally, concerned to ensure an element
ofJudicial discretion, the authorcautions against
adopting a narrow or literal view of section
24(2).

L’entr~e en vigueur de ]a Charte canadienne
des droits et libert&s a chang6 le droit de ma-
nitre fondamentale quant A Ia recevabilife d’une
preuve ill~galement obtenue. L’effet reel de
cette nouvelle garantie constitutionnelle d6-
pendra toutefois de l’interprftation qu’accor-
dera la jurisprudence A l’article 24(2). Apr~s
un brefhistorique du droit au Canada avant
l’entr~e en vigueur de cet article, l’auteur se
penche sur les questions fondamentales que
soul~vent son application, telles que le prin-
cipe de causalitE, l’6valuation des facteurs
pertinents, et le sens de l’expression <( dfcon- sid~rer l'administration de la justice >. Lau-
teur nous encourage A examiner et A profiter
de ‘exp~rience acquise dans d’autres juridic-
tions. D’un oeil critique, l’auteur n’h~site pas
A se rferer A lajurisprudence
trang~re et aux
motifs 6voqu~s par Ia doctrine. II en tire des
conclusions importantes qui constituent se-
lon lui la base d’une interpretation juste de
l’article 24(2). I1 rejette, par exemple, l’ana-
lyse de l’opinion publique comme fagon de
d
ider de l’exclusion d’une preuve, et il pr6-
tend que l’argument de dissuasion n’est pas
aussi pertinent au Canada que dans d’autres
pays. Soucieux de la ncessit6 d’un 6lment
de discretion judiciaire, l’auteur conclut fi-
nalement qu’il est indispensable d’6viter une
interpretation 6troite ou litt~rale de l’article
24(2).

*Associate Professor, McGill University, and member of the Quebec Bar. This paper was
originally presented during the 1984 annual convention of the Canadian Association of Law
Teachers.

McGill Law Journal 1984
Revue de droit de McGill

McGILL LAW JOURNAL

[Vol. 29

Synopsis

Identifying the Real Issues

Introduction
I.
II. Resisting the Lure of Empiricism
M. Shaking Off the Hold of Precedent
IV. Avoiding the Pitfalls of Literalism

Conclusion

Postscript

Introduction

Some constitutional safeguards have origins lost in the mist of time
and serve mostly as reminders of ancient feuds. Others are creatures of a
recent past and look to the future. The exclusionary principle in section
24(2) of the Canadian Charter of Rights and Freedoms falls in this latter
category. I

The courts of Anglo-American jurisdictions long regarded the admis-
sibility of evidence and the propriety of its obtainment as two entirely
separate issues. There was only one notable exception to this practice. For
well over two centuries, the common law treated confessions with a good
dose of skepticism and this sentiment inspired much discussion on their

‘Part I of Schedule B, Canada Act 1982, c. 1I (U.K.) [hereinafter cited as the Charter.

Section 24 of the Charter states:

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), 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.

1984]

THE EXCLUSION OF EVIDENCE

admissibility. 2 Criminal courts to this day spend considerable time probing
the circumstances in which an accused made the statements tendered against
him at his trial. The admissibility of these statements depends, and will no
doubt continue to depend, on how they were obtained. The “how” refers
primarily, but not exclusively, to the Ibrahim rule.3 From this rule, any
reasonably competent police officer can infer that it is generally pointless,
though perhaps not illegal, to make threats or promises to a suspect.

At common law, however, real evidence was never worthy of such a
particularized treatment. This distinction made some sense in a system
which conceived of itself as an elaborate machinery for the discovery of
“truth”, that is, all the facts relevant to the charge. In most cases, there
existed no apparent connection between the inherent value of real evidence
and the propriety or legality of the means by which it had been procured.
Punch a suspect until he confesses; his statement is just as likely to be a
lie, and a plausible one at that, for the more believable is the lie, the greater
is the probability that the punching will stop; the statement is apt to mislead
and should therefore be excluded. Knock a suspect senseless and pump his
stomach until he regurgitates stolen diamonds; diamonds do not speak and
so they cannot lie; the diamonds and evidence of where they came from
should therefore be admissible. The matter was, of course, a great deal more
complicated, and the authorities never so simplistic. But the notion that a
court should exclude real evidence because it was improperly obtained ap-
peared, by and large, heretical.

It is against this background that the Supreme Court of the United
States decided in 1914 the case in which this heretical doctrine would first
receive high-level recognition. 4 Weeks v. United States5 had begun with a
banal, warrantless search and the seizure of various objects, some of which
were relevant to a gambling charge. Weeks brought a pre-trial petition for
the recovery of his property, the petition was denied in part and he was
convicted. He persevered and challenged the pre-trial ruling in the Supreme

2See F Kaufman, The Admissibility of Confessions, 3rd ed. (1979) ch. 1, on the history of
the rule. The modem doctrine of admissibility has been traced back to White’s trial (1741) 17
How. St. Tr. 1079, 1085: see Wigmore, Evidence (1970) vol. 3, 819, fn. 2.

3lbrahin v. The King [1914] A.C. 599, [1914-15] All E.R. 874.
4The exclusion of evidence as a means of enforcing constitutional safeguards had been con-
sidered in Boyd v. United States, 116 U.S. 616 (1886), a case involving the compulsory dis-
closure of real evidence under a customs statute and where the decision rested primarily on
the Fifth Amendment. Prior to Weeks v. United States, infra, note 5, only one state court had
extended the reasoning to cover improperly seized evidence. In Iowa v. Sheridan, 96 N.W.
730 (1903), the defendant, an ice dealer, had allegedly destroyed a large quantity of ice belonging
to a competitor by pouring on it a barrel of salt. The evidence was the empty barrel, seized
illegally and produced at the trial. The Iowa Supreme Court excluded it.

3232 U.S. 383 (1914).

REVUE DE DROIT DE McGILL

[Vol. 29

Court. The Court, narrowly distinguishing an earlier decision in a manner
promptly denounced by Wigmore, 6 upheld the “seasonable application ‘ 7
for the return of letters that incriminated the defendant. These letters were
not yet evidence in a trial at the time of the petition, nor were they con-
traband. But their recovery before trial (or expost facto on appeal) obviously
had the same practical result as excluding evidence at trial. Wigmore saw
the decision as an aberration and wrote, in a purple yet somewhat vacuous
passage, that it “exemplifie[d] an inveterate trait of our Anglo-American
judiciary peculiar to the mechanical and unnatural type of justice.”‘ 8 The
inveteracy must have been in the mechanicalness and nowhere else, for
Weeks was unquestionably an atypical decision. It was also, as Anglo-Amer-
ican lawyers would eventually discover, the thin but cutting edge of a very
large wedge.

Fifty years later, all the American federal and state courts were bound
under Mapp v. Ohio9 by an unusually controversial doctrine known as the
Exclusionary Rule. Scotland had innovatively opted for a policy of discre-
tionary exclusion’ and several other Commonwealth jurisdictions would
soon follow this example.” 1 Some English decisions also supported a similar
view.’ 2 But Canadian courts seemed altogether opposed to it; indeed, as late
as 1970, the Supreme Court of Canada, in The Queen v. Wray, 13 decided
by a majority that the Kuruma’4 principle would prevail in this jurisdiction.
The severe deficiencies of Kuruma had gone largely unnoticed.15 The Canadian

6The case was Adams v. New York, 192 U.S. 585 (1904), the basis of the distinction was,
semble, the timeliness of the application, and Wigmore’s short but vigorous critique is published
at (1914) 9 Nw. U.L. Rev. 43.

7Supra, note 5, 398.
sSupra, note 6, 43.
9367 U.S. 643 (1961).
‘OLaivrie v. Muir, [1950] S.C. 19 (H.C.J.), [1950] S.L.T. 37, [hereinafter cited to S.C.].
“See, infra, notes 121-4.
12See R. v. Court [1962] Crim. L.R. 697 (C.C.A.), R. v. Payne [1963] 1 All E.R. 848 (C.C.A.)
and Callis v. Gunn [1964] 1 Q.B. 495 (C.A.); the subsequent cases of R. v. Foulder [1973]
Crim. L.R. 748 (Cent. Crim. Ct.) and R. v. Ameer and Lucas [1977] Crim. L.R. 104 (Cent.
Crim. Ct) are also worth considering, but Ameer was overruled and the doctrine greatly curtailed
in R. v. Sang [1980] A.C. 402, [1979] 2 All E.R. 1222.

13[1971] S.C.R. 272.
“4Kuruma v. The Queen [1955] A.C. 197, [1955] All E.R. 236 [hereinafter cited to A.C. as

Kuruma].

15 n Wendo v. The Queen (1963) 109 C.L.R. 559 (Aust. H.C.), Sir Owen Dixon C.J. had
written: “I do not think that in this or any other jurisdiction the question [whether evidence
which is relevant should be rejected on the ground that it is come by unlawfully or otherwise
improperly] has been put at rest by Kuruma.” The case of Kuruma did exactly that in Canada,
even though it was an extremely weak decision. The authorities cited therein were, at best, of
minimal relevance: R. v. Leatham (1861) 8 Cox C.C. 498 (Q.B.), involved evidence produced
under compulsion of statute and contained an obiter dictum perhaps eloquent but hardly
significant; Lloyd v. Mostyn (1842) 152 E.R. 558, (1842) 10 M. & W. 476 (Exch.), and Calcrafl

1984]

THE EXCLUSION OF EVIDENCE

practice thus remained for some time the exact opposite of its American
counterpart, perhaps because the fear of total contamination had increased
judicial resistance to American influence.’ 6 In the end, it took a constitu-
tional reform to set Canadian law on a different course. With the advent
of the Charter, all evidence, whether real or in the form of out-of-court
statements, can be excluded for reasons of extrinsic policy.

I.

Identifying the Real Issues

In the first two years of its existence, the exclusionary principle con-
tained in section 24(2) of the Charter 17 elicited a good measure of doctrinal
commentary.’ 8 It also supplied defence counsel with an adaptable tool now
used by them with considerable industry, as can be seen from the plethora
of cases on the point.’9 Several issues emerged in the process. One of these
– whether section 24(2) operates retroactively – will soon become moot. 20
Others will be resolved in a manner which might subject the exclusion of
evidence in all cases to the single test of section 24(2) or, alternatively, might

v. Guest [1898] 1 Q.B. 759, [1895-9] All E.R. Rep. 346; both dealt with the legal professional
privilege instead of rules applicable to the obtaining of evidence; Noor Mohamed v. The King
[1949] A.C. 182, [1949] 1 All E.R. 365, and Harris v. Director of Public Prosecutions [1952]
A.C. 694, [1952] 1 All E.R. 1044, concerned similar fact evidence, a problem of intrinsic, not
extrinsic policy. No mention was made in Kuruma of Jones v. Owens (1870) 34 J.P. 759, the
only truly relevant precedent, decided at a level and in a manner which made it clear that the
issue had to be considered anew and on principle. The treatment of Scots and American cases
in Kuruma, supra, note 14, 204-5, is positively inadequate, the law of these jurisdictions being
summarized in twenty lines and cast aside with barely comprehensible or unconvincing dis-
tinctions. Finally, as will be discussed, infra, p. 549, the actual outcome of the appeal is at
odds with the law laid down in Lord Goddard’s speech.

‘6The influence, however, could be felt at another level, and it did cause some discomfort:
see the Protection of Privacy Act, S.C. 1973-74, c. 50, s. 2 (which amends the Criminal Code,
R.S.C. 1970, c. C-34, to add the special exclusionary rule of s. 178.16(1)) and the Criminal
Law Amendment Act, 1977, S.C. 1976-77, c. 53, s. 10 (which restricts the scope of the exclu-
sionary rule contained in s. 178.16(1), thereby almost providing an affirmative answer to
Herbert’s question, “Couldst thou both eat thy cake and have it?”).

17Supra, note 1.
18See, in particular, McLellan & Elman, The Enforcement of the Canadian Charter of Rights
and Freedoms: An Analysis of Section 24 (1983) 21 Alta. L. Rev. 205; Gibson, Shocking the
Public: Early Indications of the Meaning of “Disrepute” in Section 24(2) of the Charter (1983)
13 Man. L.J. 495, fn. 3, where several other sources are cited. Additional materials will be
referred to elsewhere in _$his article.

ing at the Weekly Criminal Bulletin.

19Anyone doubting the correctness of this unsupported statement will be reassured by glanc-
20Despite occasional hesitations, the prevailing view is that s. 24(2) does not operate ret-
roactively: see R v. Hynds (1982) 1 C.R.R. 378, (1982) 70 C.C.C. (2d) 186 (Alta Q.B.); R. v.
Kevany (1982) 1 C.C.C. (3d) 511 (Ont. Co. Ct); R. v. Steube (1982) 38 O.R. (2d) 168 (Dist.
Ct); R. v. Esau (1983) 147 D.L.R. (3d) 561, (1983) 4 C.C.C. (3d) 530, (1983) 20 Man. R. (2d)
230 (C.A.); R. v. Longtin (1983) 147 D.L.R. (3d) 604, (1983) 5 C.C.C. (3d) 12 (Ont. C.A.).
Compare, on the American Rule, Linkletter v. Walker, 381 U.S. 618 (1965).

McGILL LAW JOURNAL

[Vol. 29

open up other remedial channels leading to exclusion by a different itinerary.
Motions for the recovery of property illegally seized 2’ and motions for the
discretionary exclusion of evidence under section 24(1)22 are examples of
such alternatives; the granting of a stay of execution could also have a
comparable effect. 23 These questions, however, are almost peripheral. Closer
to the core of section 24(2), and probably richer as well, are three other
issues: causation, the range and kind of factors one may consider in deciding
whether to exclude evidence, and the meaning of disrepute. 24 The first two
will be summarized in the following pages. The third, probably the most
important, will be discussed throughout the other parts of this article.

Causation creates analytical difficulties everywhere in the law and was
bound to do so under a provision that allows for the exclusion of evidence
only where it “was obtained in a manner that infringed or denied [a Charter
guarantee]”. 25 What is the “manner”? The very act that uncovers the evi-
dence, the successive steps that lead to it or the entire investigation phase
in the case –
the shot, the scene, the sequence, or the whole film? “In a
manner” that infringes is certainly looser than “by reason of an infringe-
ment”, and the provision does not appear to require an exacting causation

21R. v. Taylor (1983) 35 C.R. (3d) 80 (Sask. Q.B.); Batsos v. Laval (1983) 5 D.L.R. (4th)
180, (1983) 35 C.R. (3d) 338 (Que. S.C.); see also Re Gillis and The Queen (1982) 1 C.C.C.
(3d) 545, (1982) 2 C.R.R. 369 (sub nom. Gillis v. Breton) (Que. S.C.). Re Trudeau and The
Queen (1982) 1 C.C.C. (3d) 342, (1982) 2 C.R.R. 345 (sub nom. Trudeau v. Melancon) (Que.
S.C.); Lambert v. A.-G. Quebec (1982) 31 C.R. (3d) 249 (Que. S.C.).
22The leading case on this point, R. v. Therens (1983) 148 D.L.R. (3d) 672, (1983) 5 C.C.C.
(3d) 409, (1983) 33 C.R. (3d) 204 (Sask. C.A.), now before the Supreme Court of Canada,
(1983) 148 D.L.R. (3d) 672n, (1983) 5 C.C.C. (3d) 409n, (1983) 36 C.R. (3d) xxiv, was relied
upon in R. v. Ahearn (1983) 4 C.C.C. (3d) 454 (P.E.I.S.C.), reversed on other grounds, (1983),
8 C.C.C. (3d) 257, in R. v. Lajoie (1983) 4 D.L.R. (4th) 491, (1983) 8 C.C.C. (3d) 353 (N.W.T.S.C.),
in R. v. Santa (1983) 6 C.R.R. 244 (Sask. Prov. Ct), and in several other cases cited by Professor
Don Stuart in his annotation on R. v. Gibson (1983) 37 C.R. (3d) 175, 178 (Ont. H.C.). See,
contra, R. v. Simmons (1984) 11 C.C.C. 193 (Ont. C.A.).
23See, for example, R. v. Engen (1982) 17 M.V.R. 270 (Alta Prov. Ct), reversed on other
grounds (1983) 23 M.V.R. 144′(Alta Q.B.), affirmed (1984) Alta R. (2d) 304, [1984] 2 W.W.R.
590 (Alta C.A.).
24Obviously, other issues, such as standing under s. 24(2), or the use of evidence improperly
25Charter, supra, note 1, s. 24(2) [emphasis added]. See Gibson, supra, note 18, 501. Causation
preoccupied American lawyers ever since the appearance of the Exclusionary Rule, but it is
known in the United States under a different and metaphorical appellation as the “Fruit of
the Poisonous Tree” doctrine: see NV. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment, (1978) vol. 3, 612-80, where the matter is discussed in all its intricate details.
Much of the American case law proceeds from the assumption that exclusion cannot be justified
where it is unlikely to deter future illegal searches, an assumption which permeates the dis-
cussion on causation. Deterrence is not the aim of s. 24(2), which apparently exists for the
purpose of enforcing constitutional safeguards. Therefore causation ought perhaps to be seen
here in a different light.

obtained by private parties, will sooner or later come to the fore.

1984]

THE EXCLUSION OF EVIDENCE

test. Suppose, however, that a suspect makes a confession and immediately
thereafter is denied the opportunity to retain counsel, is locked up for a
fortnight and subjected to cruel treatment in the process. Should or can the
court exclude the confession? It is probably better to remedy this sort of
situation at another level, for example with a stay of prosecution under
section 24(1). The exclusionary principle, after all, is an evidentiary mech-
anism and by its nature ought to relate to infringements that somehow
account for the availability of the impugned evidence. The infringement,
in other words, must precede chronologically the obtaining of the evidence.
But should it coincide so closely in time with the discovery that the in-
fringement, the manner and obtaining are in fact one and the same act? For
the time being, search and seizure cases provide no firm guidelines; the
courts simply ask, in the familiar terminology of causation, whether or not,
on the facts, there was “one transaction”. 26 Breathalyzer cases are slightly
more revealing and there are signs that the Brownridge27/Hogan28 dichot-
omy may reappear under the Charter.29

The courts have frequently been reluctant to enumerate the factors
relevant in making a decision under section 24(2). In R v. Manninen,30 for
instance, MacKinnon A.C.J.O. remarked: “I do not think it is either wise
or helpful to attempt to outline in any exhaustive detail the circumstances
that are to be considered [under section 24(2)]. ‘ ‘ 31 This reluctance to artic-
ulate guidelines seems odd when one notes the insistence with which the
same Court reiterates that the provision operates as a rule, not as a discre-
tion.32 Many decisions are surprisingly succinct when the time comes to
characterize and weigh the pertinent circumstances of the case.33 The most

427.

26See R. v. Cohen (1983) 148 D.L.R. (3d) 78, 79 (trial judge), 82 (Traggart J.A.) 90 (Craig,
J.A.) and 93 (Anderson J.A., dissenting), 5 C.C.C. (3d) 156 (B.C.C.A.), and R. v. Cuff (1983)
6 C.C.C. (3d) 311, 324 (B.C. Co. Ct).

27Brownridge v. The Queen [1972] S.C.R. 916, (1972) 28 D.L.R. (3d) 1.
28Hogan v. The Queen [1975] 2 S.C.R. 574, (1974) 9 N.S.R. (2d) 145, (1974) 48 D.L.R. (3d)
29See R. v. Engen, supra, note 23; R. v. Farrell (1982), 17 M.V.R. 223 (Ont. Prov. Ct); R.
v. Anderson (1983) 19 M.V.R. 33 (Ont. Co. Ct) and R. v. Watchell (1983) 32 C.R. (3d) 264
(B.C. Prov. Ct). In R. v. Messier (1983) 22 M.V.R. 34 (Que. S.C.), Hugessen A.C.J. rejected
the evidence on a charge of failure to provide a breath sample because the accused had been
denied his right to counsel. He observed at page 36: “le d6ni de son droit, garanti par Particle
10(b), est devenu, en quelque sorte, un pi~ge pour M. Messier, l’incitant commettre l’infraction
dont il est accuse. A mon point de vue, cela constitue certainement une circonstance de nature
A d~consid6rer l’administration de la justice.”

30(1983) 8 C.C.C. (3d) 193, 37 C.R. (3d) 162 (Ont. C.A.).
31Ibid., 202.
32See note 135, infra, and accompanying quotation.
33See however Re TL. W. (1982) 5 C.R.R. 241 (Ont. Prov. Ct), a child welfare case where
the competing policies of the applicable legislation and the protection against illegal searches
are carefully considered.

REVUE DE DROIT DE McGILL

[Vol. 29

comprehensive judgment in this regard probably remains that of Borins Co.
Ct J. in R v. Samson.34 This case did not involve section 24(2) of the Charter
but section 178.16(2) of the Criminal Code,35 whose wording, though not
identical, is similar to that of the Charter. The nature of the infringement
(whether it was brutal or innocuous, substantial or technical, deliberate or
in good faith) and the gravity of the offence investigated (essentially, how
serious it is, or threatening to others) form part of the factors listed by
Borins Co. Ct. J. Both come from Scotland where the High Court of Ju-
diciary, in the early nineteen-fifties, identified them as significant in the
exercise of an exclusionary discretion. 36 They have now been picked up by
Canadian courts37 and may well become determinative under section 24(2).
The second factor would appear more problematic than the first, partly
because it reinstates from within the system of criminal justice an issue
which is essentially legislative. Of course, objective criteria do exist for
classifying offences according to their gravity. Public welfare offences, de-
fined along the lines of The Queen v. Sault Ste-Marie,38 arguably form a
category of their own;39 summary conviction offences are presumably less

34(1982) 37 O.R. (2d) 237, (1982) 29 C.R. (3d) 215 (Ont. Co. Ct), reversed on other grounds

by the Ontario Court of Appeal at (1983) 36 C.R. (3d) 126.

35R.S.C. 1970, c. C-34.
36Laivrie v. Muir, supra, note 10, 27 and Fairley v. Fishmongers of the City of London [ 195 ]
S.C. 14, 24 (H.C.J.), [1951] S.L.T. 54. Other factors considered relevant by Scottish courts,
such as the surreptitiousness of the offience (Hopes and Lavery v. H.M. Advocate [1960] S.C.
104 (H.C.J.), [1960] S.L.T. 264), the risk of removal of the evidence (H.M. Advocate v. Hepper
[1958] S.C. 39 (H.C.J.), [1958] S.L.T. 160) or the perishable nature of the evidence (Bell v.
Hogg [1967] S.C. 49 (H.C.J.), [1947] S.L.T. 290, and Hay v. H.M. Advocate [1968] S.C. 40
(H.C.J.), [1968] S.L.T. 334) might also be significant in Canada, but should logically pertain
to the reasonableness of the search rather than the justification for exclusion.

37R. v. Burton (1982) 40 Nfld & P.E.I. R. 335 (Nfld Prov. Ct), reversed on other grounds
(1983) 7 C.C.C. (3d) 87 (Nfld C.A.); R. v. Hynds, supra, note 20; R. v. Chapin (1983) 7 C.C.C.
(3d) 538, 43 O.R. (2d) 458 (Ont. C.A.); R. v. Collins (1983) 33 C.R. (3d) 130, (1983) 5 C.C.C.
(3d) 141, (1983) 148 D.L.R. (3d) 40 (B.C.C.A.) [hereinafter cited to C.R. as Collins]; R. v. Esau,
supra, note 20; R. v. Gibson, supra, note 22; R. v. Lajoie, supra, note 22; R. v. Manninen
(1983) 8 C.C.C. (3d) 193, (1983) 37 C.R. (3d) 162 (Ont. C.A.); R. v. Singh (1983) 8 C.C.C.
(3d) 38 (Ont. C.A.); and The Queen v. Rao (16 May 1984) unreported (Ont. C.A.).

38[1978] 2 S.C.R. 1299, (1978) 85 D.L.R. (3d) 161.
39Are they “less serious” or “more serious”? Lawrie v. Muir, supra, note 7, involved a milk
marketing offence and it is implicit in the decision that the Court saw it as comparatively less
serious. On the other hand, in the United States, the Supreme Court has been prepared to
relax the Fourth Amendment probable cause standard in cases of administrative searches,
which consequently restricts the scope of the Exclusionary Rule and allows for the introduction
of more “windfall” evidence in public welfare cases than in criminal cases: see Camara v.
Municipal Court of San Francisco, 387 U.S. 523 (1967) especially at 538, and LaFave, supra,
note 25, 178 et seq. The American view is predicated on eminently rational considerations,
such as the fact that administrative appraisals of whole urban areas are often the only practical
way of determining where inspections should be conducted; the Exclusionary Rule, having no
discretionary content, simply responds to this assessment, In Canada, a court could logically
come to a similar conclusion under s. 8 of the Charter, in which case, of course, s. 24(2) could
not be invoked.

1984]

THE EXCLUSION OF EVIDENCE

serious than indictable offences, some of which attract greater penalties than
others; in principle, and subject to various factual qualifications, victimless
offences are less serious than others. The seriousness of an offence depends
also on a range of subjective elements which the courts assess as a matter
of course whenever they hear representations on a sentence. Procedurally,
it is difficult to see how this last information can be made available to the
court at the stage when the defence raises an objection to the admission of
evidence. But, apart from these difficulties of interpretation, this factor also
raises a more basic question. How can the extent of the constitutional pro-
tection to which one is entitled depend on the nature of the charge one
faces? Is not such a notion abhorrent to the legal order? Since when do
accused murderers have fewer procedural rights than accused traffic offenders?

The argument against the use of this factor was developed eloquently
by Merredew P.J.O. in R. v. Texaco Canada Incorporated4 and is cited by
Professor Don Stuart in a recent annotation.4’ Judge Merredew concludes:
“if the Charter is to protect rights, if Section 8 is a prospective right to keep
one ‘secure against unreasonable searches’ how can the seriousness of the
offence be a relevant circumstance? Do we have rights only if a matter proves
in retrospect to be trivial?” 42 Expressed in this fashion, the question almost
irresistibly calls for a negative answer. One should bear in mind, however,
that the exclusion of evidence is an enforcement mechanism, as suggested
by a sub-title in the Charter. Given the wording of section 24(2), it cannot
be said that there exists in any meaningful sense a constitutional right to
the exclusion of evidence. The factor which is discussed here conditions the
entitlement to exclusion, not the right to be secure against unreasonable
searches. This right, at any rate and ex assumptio, already has been violated.
It is practically impossible to remove from the discussion of this question
any consideration of the seriousness of the offence. Even the Supreme Court
of the United States occasionally alludes to it in interpreting the Fourth
Amendment’s reasonableness requirement, an approach which in that ju-
risdiction amounts to calibrating the Exclusionary Rule in accordance with
the seriousness of the offence. 43 Australian courts regard it as relevant in
the exercise of their jurisdiction to exclude evidence; as a result, exclusion

40(10 November 1983) unreported (Ont. Prov. Ct).
41(1983) 37 C.R. (3d) 175, 177.
42Supra, note 40, 31.
43See Payton v. New York, 445 U.S. 573, 602 (1980) and Welsh v. Wisconsin, 52 L.W. 4581,
4584 (1984) where Justice Brennan, delivering the opinion of the court in a warrantless home-
arrest case, says: “When the government’s interest is only to arrest for a minor offence, that
presumption of unreasonableness [in cases of warrantless entry] is difficult to rebut, and the
government usually should be allowed to make such arrests only with a warrant issued upon
probable cause by a neutral and detached magistrate.”

McGILL L4W JOURNAL

[Vol. 29

will occur for the most part in cases of intoxicated driving, gambling, pos-
session of drugs and similar offences.44 Experiences in other jurisdictions,
and not only within the Commonwealth, indicate that this position has
coherence as a legal doctrine.

One such experience is the German exclusionary doctrine, based on
two distinct principles. 45 The Rechtsstaatsprinzip (or Rule of Law) requires
the exclusion of evidence, regardless of its weight or value, in cases of police
brutality or other aggravated illegality. 46 The Verhidtnismassigkeit (or prin-
ciple of proportionality) calls for the exclusion of probative evidence where
the means by which it was obtained are excessively intrusive in view of the
triviality of the offence investigated and the particular sphere of privacy
thus invaded. According to one fitting metaphor, the principle of propor-
tionality means that one should not shoot sparrows with a cannon.47 The
principle pervades continental European administrative law48 and is con-
ceptually analogous to the private law doctrine of abuse of right in civilian
jurisdictions: finality determines whether the exercise of a power or a right
is legally acceptable in any given case.

Proportionality and finality can prove useful concepts in articulating a
coherent doctrine of exclusion. Police officers may enter a private house
and ransack the premises to investigate a minor statutory offence, or they
may do so to uncover evidence of a grave crime. The tolerance of the legal
system for these actions will vary accordingly, and in the former case the
courts will go to greater lengths in restoring the statu quo ante; not only will
they award damages when the aggrieved party makes a claim but they will
also exclude the resulting evidence as if the search had not taken place.
Along the same line of thought, the courts may accept that the enforcement
of the right to be secure against unreasonable searches (and the subjacent

44The High Court of Australia considered the question twice in recent years, first in Bunning
v. Cross (1978) 19 A.L.R. 641 and subsequently in Cleland v. The Queen (1982) 43 A.L.R.
619. See also, among other cases, R. v. Padman (1979) 25 A.L.R. 36 (Sup. Ct Tasmania),
Shervill v. Shearer (1979) 26 A.L.R. 454 (Sup. Ct Northern Territory), Phillips v. Cassar [ 1979]
2 N.S.W.L.R. 430 (C.C.A.), French v. Scarman (1979) 20 S.A.S.R. 333 (Sup. Ct), R. v. Conley
(1979) 21 S.A.S.R. 166 (Sup. Ct), R. v. Killick (1979) 21 S.A.S.R. 321 (Sup. Ct), McMahon v.
Casey andMcMahon [1980] Qd. R. 230 (Sup. Ct), R. v. Migliorini (1981) 38 A.L.R. 356 (Sup.
Ct of Tasmania), R. v. Clune [1982] V.R. I (Sup. Ct Victoria), R. v. Tiler (1983) 33 S.A.S.R.
344 (Sup. Ct) and R. v. Curran and Torney [1983] 2 V.R. 133 (Sup. Ct Victoria).

45See generally Bradley, The Exclusionary Rule in Germany (1983) 96 Harv. L. Rev, 1032,

where all the relevant primary sources are reviewed.

46Bradley, ibid., 1040, fn. 33, draws a parallel between the Rechtstaatsprinzip and the doctrine

developed in Rochin v. California, 342 U.S. 165 (1952), discussed infra at p. 541.

47Attributed to Professor Walter Jellinek by Ernst Forsthoff, Lehrbuch des Verwaltungsrechfs

(Mfnchen: Beck, 1973) vol. 1, 70.

48See G. Braibant, “Le principe de la proportionalit6” in M6langes ojferts Li Marcel Waline

(1974) t. 2, 297.

19841

THE EXCLUSION OF EVIDENCE

“right to privacy”) results in the suppression of evidence that would oth-
erwise prove a minor statutory offence; they will show no such tolerance if
the evidence proves guilt in a serious crime. The power to search does not
embody a power to search unreasonably conditional upon the gravity of the
offence being investigated. The right to be secure against unreasonable searches
does not embody a “right not to get caught” conditional upon the degree
of secretiveness of one’s actions. When a court is faced with abuses of both
the power and the right, it is entitled to look for the greater disproportionality
and to dispose of the case accordingly. This is not to say that there exists
a conditional power to disregard procedural requirements or, conversely, a
conditional right not to get caught. The courts simply take the view that
they must remedy to the fullest possible extent the abuses which they regard
as more detrimental to the legal order. They then implicitly accept that it
is sometimes necessary to fight fire with fire, a proposition which works
both ways. Once the courts are prepared, as was long the case in Canada,
to overlook police illegalities for the purpose of convicting the guilty, they
should also be prepared, on occasion, to overlook evidence of guilt for the
purpose of obliterating police illegalities. Naturally, the right to be secure
against unreasonable searches may be seen at times as protecting the of-
fender’s interest in avoiding punishment, but this interest is not always more
objectionable than the interest of the police in enjoying in their investiga-
tions total freedom from legal restraints. 49

The future will tell whether this angle of approach is suitable under
section 24(2). There are, however, other and more fundamental questions
which center on the meaning of disrepute and the manner in which section
24(2) should be interpreted. These aspects of the Canadian exclusionary
principle will now be discussed.

49Posner writes in Rethinking the Fourth Amendment [1981] Sup. Ct Rev. 49, 51: “What is
important is that the Fourth Amendment not be seen as protecting the criminal’s interest in
avoiding punishment.” He then proceeds to explain that an efficient tort remedy protecting
lawful Fourth amendment interests (such as privacy and mental tranquility) would constitute
a more adequate enforcement mechanism, particularly from the point of view of deterrence.
The argument has some force when it is presented to highlight the demerits of a strict exclu-
sionary rule. Yet, whatever value a tort might have as a deterrent, it would have been quali-
tatively inadequate in a case like Mapp v. Ohio, 367 U.S. 643 (1961), where the petitioner’s
interest in avoiding conviction for having knowingly had in her possession certain lewd and
namely “four little pamphlets, a couple of photographs and a little pencil
lascivious items –
doodle” (p. 668) – certainly was not as detrimental to law as the police’s interest in validating
with a conviction a massive and warrantless raid carried out on the flimsiest suspicion. Damages
are no substitute for an acquittal, a factor which ought to be given weight where the method
of investigation is grotesquely out of proportion with the charge resulting from the investigation.
If all citizens were constantly subjected in every facet of their lives to the permanent scrutiny
of countless law enforcement officials, how many could never be charged with anything?

REVUE DE DROIT DE McGILL

[Vol. 29

II. Resisting the Lure of Empiricism

In June 1960, Mr Justice Potter Stewart wrote in Elkins v. United States
that the American Exclusionary Rule was “calculated to prevent, not to
repair. Its purpose is to deter –
to compel respect for the constitutional
guaranty in the only effectively available way –
by removing the incentive
to disregard it.”5o This dictum, with which four other members of the Court
agreed, can only have meant that over the years the understanding of the
Rule and its rationale had changed significantly: there is not a word about
deterrence in the case that created the rule, Weeks v. United States,51 and
for thirty-five years after Weeks American courts simply did not discuss the
preventive value of the Rule.52 Yet the assertion that the Rule was a deterrent
became in the nineteen-sixties the principal premise of a substantial amount
of legal literature and case law. The evolution in the justification of the Rule
coincided, of course, with the growing popularity in legal academic circles
of empirical studies and the methodology of social sciences. The Rule had
always been controversial. Right from the outset, Wigmore had attacked it
with a stylistic impetuosity reminiscent of Bentham and rarely equalled in
modem legal literature.53 Now, at last, it looked as if issues would be joined
and the debate settled. Either the Rule did or did not deter. If it did not,
its failure in this regard would finally discredit it.

Several empirical studies were conducted and published throughout the
decade and later.54 Field observations, multiple area studies and the before-
after research methodology were used in turn, different cities and different
law enforcement agencies were compared, various testing variables such as

than an “Empirical Proposition”? (1982-83) 16 Creighton L.R. 565, 598.

50364 U.S. 206 (1960) 217.
5’232 U.S. 383 (1914).
52Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a “Principled Basis” Rather
53See Wigmore, Evidence, 3rd ed. (1940) vol. 8, 2184. The well-known Titus and Flavius
passage is cited by Seaton J.A. in R. v. Collins (1983) 148 D.L.R. (3d) 40, 53, (1983) 5 C.C.C.
(3d) 141 B.C.C.A. [hereinafter cited to D.L.R.].
54See, for example, Nagel, Testing the Effects of Excluding Illegally Seized Evidence [1965]
Wisc. L. Rev. 283; J. Skolnick, Justice without Trial. Law Enforcement in Democratic Society,
Effect ofMapp v. Ohio on Police Search-and-Seizure Practices in Narcotics Case(1968) 4 Colum.
J.L. & Soc. Prob. 87; Oaks, Studying the Exclusionary Rule in Search and Seizure (1970) 37
U. Chi. L. Rev. 665; Spiotto, Search and Seizure: An Empirical Study of the Exclusionary Rule
and Its Alternatives (1973) 2 J. Legal Stud. 243; On the Limitations of Empirical Evaluations
of the Exclusionary Rules: A Critique of the Spiotto Research and United States v. Calandra
(1974) 69 Nw. U.L. Rev. 740; Canon, Is the Exclusionary Rule in Failing Health? Some New
Data and a Plea Against a Precipitous Conclusion (1974) 62 Ky L.J. 681; Canon, Testing the
Effectiveness of Civil Liberties Policies at the State and Federal Levels: The Case of the Exclu-
sionary Rule (1977) 5 Am. Pol. Q. 57.

1984]

THE EXCLUSION OF EVIDENCE

the contents of police reports, the frequency of successful motions to sup-
press; the number of police raids or convictions for drug offences and the
rate of recovery of stolen property emerged from a haze of facts and figures.
Today, with the unfair advantage of full hindsight and extensive lit-
erature on the subject, an outside observer can only remark that these studies
reveal much more about the limitations of empirical methodology than they
do about the Exclusionary Rule itself. Despite fifteen years of sustained
discussion with statistics in hand, we still do not know the answer to the
question “does it or does it not deter?” What was originally intended as a
scientific inquiry into the efficacy of the Exclusionary Rule became in fact
the basis of a separate controversy on the feasibility and the relevance of
empirical investigations. This is not surprising, for as early as 1973 some
supporters of the Rule were denouncing the manner in which its detractors
had put the question. One commentator, for example, wrote:

Chief Justice Burger states that we lack sufficient evidence to determine the
deterrent effect of the exclusionary rule, which, of course, is true. The very
existence of the rule prevents making a controlled study to provide the evi-
dence. The Chief Justice then places the burden of demonstrating the deterrent
efficacy of the rule on its proponents. Obviously, the assignment of the burden
of proof on an issue where the evidence does not exist and cannot be obtained
is outcome determinative. The Chief Justice’s assignment of the burden is
merely a way of announcing a predetermined conclusion. So, of course, would
imposition of the burden on opponents of exclusion. 55
be the opposite choice –

After a lively but occasionally aimless excursion into the world of field
research, the participants in the Fourth Amendment polemics returned al-
most to their point of departure, made reluctant use of empirical data (which
they regarded as inconclusive but nevertheless somewhat favourable to their
own thesis) 56 and resumed a vigorous exchange of ideas on what ought to
be the policy of the Rule.57

55Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Laivyering

(1972-73) 48 Ind. L.J. 329, 332.

56See, for example, LaFave, The Fourth Amendment in an Imperfect World: On Drawing

“Bright Lines” and “Good Faith” (1982) 43 U. Pitt. L. Rev. 307, 317-19.

57A series of articles published in Judicature conveniently incapsulates the main arguments
in this debate and shows that the empirical branch of the controversy has come to a stalemate:
see Kamisar, Is the Exclusionary Rule an ‘Illogical’ or ‘Unnatural’ Interpretation of the Fourth
Amendment (1978-79) 62:2 Judicature 66 (August); Wilkey, The Exclusionary Rule. Why Sup-
press Valid Evidence? (1978-79) 62:5 Judicature 214 (November); Kamisar, The Exclusionary
Rule in Historical Perspective: the Struggle to Make the Fourth Amendment more than ‘an
Empty Blessing’ (1978-79) 62:7 Judicature 336 (February); Wilkey, A Call for Alternatives to
the Exclusionary Rule: Let Congress and the Trial Courts Speak (1978-79) 62:7 Judicature 351
(February); Canon, The Exclusionary Rule: Have Critics Proven that It Doesn’t Deter Police?
(1978-79) 62:8 Judicature 398 (March); Schlesinger, The Exclusionary Rule: Have Proponents
Proven that It Is a Deterrent to Police? (1978-79) 62:8 Judicature 404 (March); Canon, A
Postscript on Empirical Studies and The Exclusionary Rule (1978-79) 62:9 Judicature 455

McGILL LAW JOURNAL

[Vol. 29

The question that now needs to be resolved is the “Good Faith” ex-
ception to the Rule.58 Lately, much prose, but few, if any new statistics, has
appeared on the subject in legal periodicals. 59 At least one leading Fourth
Amendment scholar now takes the view, despite his earlier advocacy of the
deterrence rationale, that the true justification of the Rule is its unique
effectiveness in the enforcement of constitutional safeguards. 60 Even Mr
Justice Stewart, who had provided the essential premise and starting point
for this long drawn-out debate, recently implied in his Harlan Fiske Stone
Lectures that, regardless of the data, he still believed in deterrence. 6′ In a
sense, one should be thankful that the facts, whatever they are, did not
disclose a final answer. The Exclusionary Rule has provoked over the years
a great deal of intense thinking and much scholarly creativity: the aims and
achievements of the system of constitutional safeguards are continuously
re-examined through the scrutiny of one of its parts. It would be unfortunate
if some of these safeguards receded into near invisibility because the Rule
does not fulfill the expectations of its pavlovian apologists.

Deterrence, whether real or imaginary, does not appear to be an im-
portant consideration under section 24(2) of the Charter. It is sometimes
thought, and there is at least one pronouncement to this effect in a recent
Canadian judgment, that the standards of police practices are “high”, per-
haps higher, on this side of the border.62 If this were true, a strict exclusionary

(April); Schlesinger, A Reply to Professor Canon (1978-79) 62:9 Judicature 457 (April). Professor
Canon sums up the debate on empirical research in a succinct but most insightful article,
Ideology and Reality in the Debate over the Exclusionary Rule. A Conservative Argument for
its Retention (1982) S. Tex. L.J. 559. He correctly points that those critics of the Rule who
assert that it does not deter have themselves failed to support empirically their claim that
many guilty persons escape conviction because of the Rule.

58Although the Supreme Court did not decide the point, which had been argued, in Illinois
v. Gates, 103 S. Ct 2317 (1983), other appeals, such as United States v. Leon, 701 E 2d 187
(1983), certiorari granted 103 S. Ct 3535 (1983), are pending before the court and raise the
same issue. See H. Stone, The Exclusionary Rule Revisited: Good Faith in Fourth Amendment
Search and Seizure (1981-82) 70 Ky L.J. 879.

59See, for example, the proceedings of the Exclusionary Rule Symposium (1982) 23 S. Tex.

L.J. 527-685.

6″Supra, note 52, 618-9, fn. 300.
6tStewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of
the Exclusionary Rule in Search and Seizure Cases (1982) 83 Colum. L. Rev. 1365, 1394-6.
Most of the views expressed on the Exclusionary Rule depend, in the end, on an act of faith
or on ideological considerations: see Sunderland, Liberals, Conservatives and the Exclusionary
Rule (1980) 71 J. Crim. L. & Criminology 343, 375-7.
62See R. v. Collins, supra, note 37, 142, where the trial judge is quoted as saying: “with the
historical Anglo-Canadian tradition of high standards of conduct of the vast majority of our
police officers, cases where the admissibility [sic] of evidence would be calculated to bring the
administration of justice into disrepute will be rare”. See, similarly, Baade, Illegally Obtained
Evidence in Criminal and Civil Cases: A Comparative Study of a Classic Mismatch (1973) 51
Tex. L. Rev. 1325, 1348.

1984]

THE EXCLUSION OF EVIDENCE

rule might conceivably be more effective in Canada than it has been in the
United States. One may even conjecture that, after a while, exclusion would
become a very rare occurrence because the police would never blunder.
However, the underlying assumption here is a dubious one. It is equally, if
not more, plausible that the frequency of illegality in police investigations
never really came to the attention of the courts or of the public because
Canadian courts, until 1982, did not exclude improperly obtained evidence.
The large number of reported cases which in recent months have involved
illegalities, some rather serious, in routine police investigations, offers an
indication of what reality actually held in store. Since it does not appear
likely that Canadian law enforcement personnel intentionally began to per-
form illegal searches after April 1982 for the purpose of testing the effect of
the Charter, the irregular methods must have existed on a similar and per-
haps even greater scale before that date. In this regard, the Charter has been
an eye-opener. Paradoxically, it may itself bring a branch of the adminis-
tration of justice into disrepute by confronting the Canadian public with
the fact that police improprieties are not as rare an occurrence as they were
once thought to be. Now that the spotlight is on them, it will be interesting
to see if peace officers can live up to their reputation of professionalism.

Meanwhile, at the judicial level, the logic of deterrence does not elicit
much support. In R. v. Collins, Seaton J.A. remarked: “It [deterrence] is
the consideration that has led others to exclude evidence. But is is not open
to a court in Canada to exclude evidence to discipline the police.”‘ 63 On the
other hand, in his carefully considered opinion in R. v. Samson, Judge
Borins of the Ontario County Court did suggest that deterrence had some
relevance. Among other factors in exercising the exclusionary jurisdiction
under section 178.16(2) of the Criminal Code: “[i]t would be important”,
he said, “to know whether the method of surveillance used was a result of
a deliberate policy to employ that method and whether the reception of the
evidence would tend to encourage such a policy.” 64 Whether reception would
encourage illegality or whether exclusion would induce respect for the law
is really one and the same question. But it is true that for the moment in
Canada deterrence remains buried under the surface, as it once was in the
United States. The implementation of section 24(2), therefore, does not
require extensive surveys of police response to exclusion.

Yet the temptation of empiricism exists also in Canada, but under a
different form. In an article published last year in the Canadian Bar Re-
view, 65 Professor Dale Gibson of the University of Manitoba expressed the

63Collins, supra, note 37, 144.
64(1982) 37 O.R. (2d) 237, 251, (1982) 29 C.R. (3d) 215 (Co. Ct).
65Gibson, Determining Disrepute: Opinion Polls and the Canadian Charter of Rights and

Freedoms (1983) 61 Can. Bar Rev. 377.

REVUE DE DROIT DE McGILL

[Vol. 29

view, which he articulated very well, that public opinion polls can and
should assist the courts in determining the meaning of “disrepute” for Charter
purposes. Faced almost immediately with frequent motions for exclusion
under section 24(2), the courts, predictably enough, did not wait for the
polls. Nor will they necessarily be inclined to consider them: there already
is a dictum on record in which an appellate judge points out, after discussing
the significance of a community views test, that he does “not suggest that
the courts should respond to public clamour or opinion polls. ‘ 66 At the
same time, however, the courts have said that the matter of disrepute must
be seen (and I quote from a selection of cases) not through the eyes of a
policeman, a law teacher, a judge, a jurist or an idealist, but through the
eyes of the community at large, including these various categories but con-
sisting for the most part of concerned and thinking citizens, or ordinary
persons who are practical, fair-minded and right-thinking. 67

This approach is precarious. There is nothing in section 24(2) itself that
requires collective judicial speculation about community views. Apart from
the shock to the community doctrine, about which more will be said in a
moment, there is nothing in the recent, or for that matter distant, origins
of our exclusionary principle, nor in related commonwealth doctrines, that
calls for this kind of divination. Furthermore, there appears to be something
of an inconsistency here. To say and repeat that community views must
prevail but to engage at the same time in the complex exercise of weighing,
among other variables, the relative gravity of the offence and its more or
less surreptitious nature, the greater or lesser technicality of the breach, the
changeable constraints of investigation work and the degree of good faith,
deliberateness, intrusiveness, deception and physical force displayed in the
case is unrealistic. It amounts to saying that community views are decisive
on a question that the community of average, untrained laymen could not
possibly decide in this fashion.

Mere figures of speech in a cluster of decisions should not cause great
concern. But unfortunately, the language used to express this fiction, the
“views of the community at large”, really invites empirical challenge, while
the question itself is singularly ill-suited for empirical resolution. Professor
Gibson reminds us in his article of a remark once made by Mr Justice
Dickson, as he then was, in the Court of Appeal of Manitoba: “The state
of mind or attitude of a community is as much a fact as the state of one’s

66Seaton J.A. in R. v. Collins, supra, note 37, 50.
671bid., 144-5, R. v. Nelson (1982) 32 C.R. (3d) 256, 263 (Man. Q.B.), R. v. Cuff, supra, note

26, 323, and R. v. Gibson, supra, note 22, 187; see also Gibson, supra, note 65, 378, fn. 4.

1984]

THE EXCLUSION OF EVIDENCE

health. ‘ 68 No one would dispute this proposition, and to rely on the results
of scientific surveys seems perfectly reasonable if the variables, even though
subjective, are easily circumscribed. The likelihood of confusion between
particular trademarks or labels, the obscenity of a particular passage in a
book or a film, or even, arguably, the need for a change of venue in a
particular trial, lend themselves in varying degrees to polling techniques. 69
Of course, larger and more diffuse variables have also been tested by social
scientists, such as the visibility of a court, the goodwill towards the police
or public confidence in the criminal justice system.70 But surveys falling in
this latter category, while they may be useful to politicians and law reform-
ers, have not been used by courts for the purposes of adjudication.

How, then, might polls be employed to determine what disrepute is
under the Charter? Practical but self-evident reasons, such as costs and
delays, would seem to rule out these techniques in all but the most extraor-
dinary or notorious cases; and even if the introduction of this survey evi-
dence occurs only in cases of this sort, are we not then, and to a specific
end, opting for trial by mob? At the other extreme, general surveys admin-
istered on a decennial basis to a large cross-section of the Canadian public
would be too far removed from the circumstances of individual cases to
provide anything but the crudest information on public attitudes. If attempts
were made, as they should, to render surveys of this type more specific,
what sampling of cases would serve to illustrate the inherent difficulty of
decisions on admissibility? What circumstantial correlations would be used
a first-degree murder case, like Nelson,71 where
to focus the questions –
the suspect was intoxicated and mentally disturbed, where there had been
a clear denial of the right to counsel and where the impugned evidence, a
statement, was excluded partly because there was other sufficient evidence
of guilt – or a possession of weapons case, like Singh,72 where a Sikh dragnet

Gibson, supra, note 65, 380-2.

68R. v. Prairie Schooner News (1970) 1 C.C.C. (2d) 251, 261, cited in Gibson, supra, note
65, 381. Dickson J.A., with the concurrence of’Monnin J.A., ruled that the results of an opinion
survey were inadmissible in evidence but stated that such surveys might be admissible subject
to certain tests not met in the case at bar.
69See Baumholser v. Amax Coal Co., 630 F 2d 550 (1980) and the authorities cited by
70See, for example, Murphy & Tanenhaus, Public Opinion and the Supreme Court: The
Goldwater Campaign (1968) 32 Pub. Opinion Q. 31; Murphy & Tanenhaus, Public Opinion
and the United States Supreme Court: Mapping of Some Prerequisites for Court Legitimation
of Regime Changes (1968) 2 L. and Soc. Rev. 357; see also Alberta Bureau of Statistics, Res-
idents’ Attitudes Towards the Police (1976); United States Government, House Subcommittee
on Government Information and Individual Rights, Public Reaction to Privacy Issues (1980),
and finally, closer to our concerns, the very revealing text of R. LUvy and R. Zauberman,
L’image du systme penal au Qubbec (1977).

7′(1982) 3 C.C.C. (3d) 147, (1982) 32 C.R. (3d) 256 (Man. Q.B.).
72(1983) 8 C.C.C. (3d) 38 (Ont. C.A.).

McGILL LAW JOURNAL

[Vol. 29

of questionable legality led to the discovery of a weapon admitted under
section 24(2)? How many members of the Canadian public have even heard
of section 24(2)? Can the pollster expect meaningful answers if he does not
first convey a modicum of information about the rule? Why not simply ask
“Did you see the film The Star Chamber? If so, who in your opinion were
the good guys?” In all likelihood, opinion polls would raise methodological
problems different from those experienced in the United States but equally
difficult to solve. The polls themselves would become the object of controversy.

In fairness to Professor Gibson, who presented an original and thought-
ful argument for the use of opinion polls, it should be added that he himself
acknowledges the limitations of this kind of evidence, particularly as regards
its lack of specificity. He concludes that the “ultimate determination must
be with the courts, because they provide what is often the only effective
shelter for individuals and unpopular minorities from the shifting winds of
public passion”. 73 Once this point is conceded, the case for opinion poll
evidence seems significantly weakened.

Instead of reiterating unconvincing appeals to evanescent community
views, Canadian judges should concentrate on what they do best: finding
within themselves, with cautiousness and impartiality, a basis for their own
decisions, articulating their reasons carefully and accepting review by a higher
court where it occurs. A convenient and longstanding legal fiction exists for
the purposes of judicial dialectics: the reasonable man, whether it be the
man on the Clapham omnibus or, perhaps today in Canada, the career-
woman on the Voyageur bus. One commendable feature of this concept is
its coherence. Judges may disagree among themselves on what the reason-
able man would do in any given case, but in the end the courts never disagree
with the reasonable man. They are, in reality, the reasonable man. The
question should be: “Would the admission of the evidence bring the admin-
istration of justice into disrepute in the eyes of a reasonable man, dispas-
sionate and fully apprised of the circumstances of the case?” If in due course
the reasonable man takes into account the findings of opinion polls, so be
it, but for the time being section 24(2) should remain entirely within the
control of the courts.

III. Shaking Off the Hold of Precedent

The phrase “bringing the administration of justice into disrepute” has
an ominous flavour to it. At first blush, it evokes events such as the Dreyfus
trial or the Sacco and Vanzetti case, events on a scale not at all commen-
surate with the everyday reality of Canadian courtrooms. Obviously, much
elucidation and creative exegesis will be needed here to understand what

73Gibson, supra, note 65, 390.

19841

THE EXCLUSION OF EVIDENCE

we meant when we finally agreed on the phrasing of our Constitution. Mean-
while, certain patterns of thought and favourite formulations already recur
in the case law generated by section 24(2).

Perhaps the most frequently quoted authority in these cases is the sep-
arate opinion of Mr Justice Lamer in Rothman v. The Queen.74 This case
revolved around the common law rule on confessions. The opinion in ques-
tion, although concurring in the result of the appeal, was distinctly at odds
with several elements of the more restrictive majority judgment. For six
members of the Court, the confession rule remains primarily an instrument
of intrinsic policy and should be interpreted in this light. For Mr Justice
Lamer, the rule ought to incorporate considerations of extrinsic policy. To
quote from the judgment, the trial judge should exclude a statement “if its
use in the proceedings would, as a result of what was said or done by any
person in authority in eliciting the statement, bring the administration of
justice into disrepute”. 75

It should surprise no one that this opinion soon became the principal
source of inspiration for judicial interpretations of section 24(2). In wording,
if not otherwise, the construction bears great resemblance to the Charter
provision, hence its instant appeal to the harassed practitioner. It is set forth
in what has been called, perhaps not entirely accurately, a “majority judg-
ment”, 76 but certainly the only judgment which is not a dissent and which
discusses the notion at the highest court level. Furthermore, although section

74[1981] 1 S.C.R. 640, (1981) 121 D.L.R. (3d) 578, (1981) 59 C.C.C. (2d) 30. The following
cases adopt expressly or by implication the Rothinan test: R. v. Caron (1982) 31 C.R. (3d) 255
(Ont. Dist. Ct); R. v. Engen supra, note 23; R. v. Hynds (1982) 70 C.C.C. (2d) 186, (1982) 1
C.R.R. 378 (Alta Q.B.); R. v. Maclntyre (1982) 139 D.L.R. (3d) 602, (1982) 69 C.C.C. (2d)
162 (Alta Q.B.); R. v. Phillips (1983) 7 C.C.C. (3d) 436, (1983) 35 C.R. (3d) 330 (B.C. Co. Ct);
Re TL. W. (1982) 5 C.R.R. 241 (Ont. Prov. Ct); R. v. Chapin (1983) 43 O.R. (2d) 458, (1983)
7 C.C.C. (3d) 538 (C.A.); R. v. Cohen (1983) 148 D.L.R. (3d) 78, (1983) 5 C.C.C. (3d) 156
(B.C.C.A.); R. v. Collins (1983) 148 D.L.R. (3d) 40, (1983) 5 C.C.C. (3d) 141 (B.C.C.A.); R. v.
Cuff(1983) 6 C.C.C. (3d) 311 (B.C. Co. Ct); R. v. Esau (1983) 147 D.L.R. (3d) 561, (1983) 4
C.C.C. (3d) 530 (Man. C.A.); R. v. Gibson (1983) 37 C.R. (3d) 175 (Ont. H.C.); R. v. Longtin
(1983) 147 D.L.R. (3d) 604, (1983) 5 C.C.C. (3d) 12 (Ont. C.A.); R. v. Stevens (1983) 7 C.C.C.
(3d) 260, (1983) 35 C.R. (3d) 1, (1983) 58 N.S.R. (2d) 413 (C.A.); R. v. Watchel (1983) 32 C.R.
(3d) 264 (B.C. Prov. Ct). At least one of these decisions apparently widens the test without
saying so explicitly: see Phillips. On the other hand, Howland C.J.O., in R. v. Simmons, supra,
note 22, 218, wrote, with the concurrence of three other members of the Court:

There may, however, be instances where the administration of justice is brought
into disrepute within s. 24(2) without necessarily shocking the Canadian community
as a whole. In my opinion it is preferable to consider every case on its merits as
to whether it satisfies the requirements ofs. 24(2) of the Charter and not to substitute
a “community shock” or any other test for the plain words of the statute.

75Rothmnan, ibid., 696.
76Ewaschuk, The Charter: An Overview and Remedies (1982) 26 C.R. (3d) 54, and Search

and Seizure: Charter Implications (1982) 28 C.R. (3d) 153.

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178.16(2) of the Criminal Code had been in existence for some time when
the Charter provision acquired its definitive form, no court had yet con-
sidered its import in a reported decision; 77 therefore, while the thought may
seem inapposite to the purist, one can imagine without excessive exertions
that the drafters of the Charter had read Mr Jusice Lamer’s opinion and
had found it sufficiently inspiring to quote it in the Charter.

What makes the opinion of Mr Justice Lamer so attractive to the prac-
titioner is probably that it attempts to unravel the meaning of “bringing the
administration of justice into disrepute” with a catchy phrase and a few
sharp examples. It contains a suitable dose of general language (for example,
what is to be repressed is what “is done in a way that offends our basic
values”; 78 sometimes, a statement should “be excluded as seriously dam-
aging the system’s respectability” 79), but the passage most frequently referred
to is, of course, the one which speaks of the “shock to the community”:

The judge, in determining whether under the circumstances the use of the
statement in the proceedings would bring the administration of justice into
disrepute, should consider all of the circumstances of the proceedings, the
manner in which the statement was obtained, the degree to which there was
a breach of social values, the seriousness of the charge, the effect the exclusion
would have on the result of the proceedings. It must also be borne in mind
that the investigation of crime and the detention of criminals is not a game
to be governed by the Marquess of Queensbury rules. The authorities, in dealing
with shrewd and often sophisticated criminals, must sometimes of necessity
resort to tricks or other forms of deceit and should not through the rule be
hampered in their work. What should be repressed vigourously is conduct on
their part that shocks the community. That a police officer pretend to be a
lock-up chaplain and hear a suspect’s confession is conduct that shocks the
community; so is pretending to be the duty legal-aid lawyer eliciting in that
way incriminating statements from suspects or accused; injecting Pentothal
into a diabetic suspect pretending it is his daily shot of insulin and using his
statement in evidence would also shock the community; but generally speaking,
pretending to be a hard drug addict to break a drug ring would not shock the
community; nor would, as in this case, pretending to be a truck driver to secure
the conviction of a trafficker; in fact, what would shock the community would
be preventing the police from resorting to such a trick.80

Where does this doctrine come from? Can it be traced back to any known
line of precedents?

The choice of words, particularly “shock to the community”, the men-
tion of Pentothal injections and the allusions to societal and systemic values

34, was the first to consider the application of s. 178.16(2) and came after Rothman.

77The elaborate and careful judgement of Judge Borins in R. v. Samson (No. 7), supra, note
78Supra, note 74, 689.
79Supra, note 74, 695.
80Supra, note 74, 697.

1984]

THE EXCLUSION OF EVIDENCE

make the analogy with Rochin v. California8′ very tempting. It appears that,
once again, the Americans have been there before.

Rochin preceded Mapp v. Ohio82 by approximately ten years. It is oc-
casionally referred to as the stomach-pump case. Police officers had entered
Rochin’s house without a warrant, forced open his bedroom door and seen
him swallow two capsules. They handcuffed Rochin, took him to a hospital
and directed a doctor to introduce a tube into his stomach. The procedure,
which was done against Rochin’s will, induced vomitting and the officers
recovered two capsules containing morphine. Rochin was then prosecuted
and convicted under California state law, which law at the time did not
require the exclusion of improperly obtained evidence.

Rochin’s petition came before the United States Supreme Court almost
exactly three years after Wolf v. Colorado.83 In this last case, Mr Justice
Frankfurter, writing for the Court,8 4 had held that the Weeks doctrine and
the Fourth Amendment exclusionary rule originally developed in federal
courts would not be imposed on all American states by means of the Four-
teenth Amendment.85 Rochin now raised the same issue and the question,
simply put, amounted to this: Does the Due Process Clause of the Four-
teenth Amendment incorporate a standard of exclusion, other than the Fourth
Amendment’s unreasonableness standard, requiring state courts to exclude
improperly obtained evidence? The Court, by a majority and again under
Mr Justice Frankfurter’s pen, gave an affirmative answer.

[W]e are compelled to conclude that the proceedings by which this conviction
was obtained do more than offend some fastidious squeamishness or private
sentimentalism about combatting crime too energetically. This is conduct that
shocks the conscience. Illegally breaking into the privacy of the petitioner, the
struggle to open his mouth and to remove what was there, the forcible ex-
traction of his stomach’s contents –
this course of proceedings by agents of
government to obtain the evidence is bound to offend even hardened sensi-
bilities. They are methods too close to the rack and the screw to permit of
constitutional differentiation. 86

Both the tone and tenor of this judgment facilitate the analogy with Mr
Justice Lamer’s opinion in Rothman. References in Rochin to “methods
that offend ‘a sense of justice’ ,,,87 to “the community’s sense of fair play

81Supra, note 46. The analogy Was noted by Ewaschuk, supra, note 76, 56.
82Supra, note 9.
83338 U.S. 25 (1949).
84Justice Black wrote a separate opinion concurring with the majority; Justices Douglas,

Murphy and Rutledge dissented.

85Rochin v. California, supra, note 46.
861bid., 172.
871bid., 173, citing Brown v. Mississippi, 297 U.S. 278 (1935).

McGILL LAW JOURNAL

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and decency” 88 and to circumstances “calculated to discredit law and thereby
brutalize the temper of a society” 89 all point to the conclusion that the
concern really must have been the same: finding a sub-standard, an absolute
bottom line, a point of demarcation beyond which judges, regardless of
legality, will turn their heads away in disgust. This explanation of Rochin
may sound excessively subjective, but that is precisely the point.

A distinction might be attempted between the Rochin test and the Roth-
man formula, on the ground that the former focuses on the violation of a
procedural safeguard while the latter concentrates on the admission of the
evidence. This view, as will be argued later, is unconvincing and it amounts
to hair splitting. Besides, even if it had substance, it would rather bear out
the point made here, for the implication would necessarily be that the Roth-
man formula is even narrower than the Rochin test. Nor can an acceptable
distinction be made because one case speaks of “shock to the conscience”
and the other of “shock to the community”. A perusal of Mr Justice Black’s
dissent, in which he closely analyzes the majority’s terminology, shows that
the test purports to incorporate the traditions and conscience of the people,
not the merely personal and private notions of the court.90 The key here is
the concept of “shock”, recently examined by an Ontario court in an un-
reported case:

The concept of “shock” is that of an immediate, sudden, unreflective, possibly
emotional and almost certainty uninformed response: it smacks of the response
we have to a startling headline, or a sudden tragedy, or seeing or hearing,
without warning, something tragic, disgusting or degrading. I am not sure that
is the appropriate test if it is the long term repute of our system of justice
which is in question. 9′

These remarks could apply with equal felicity to the Rochin test, itself almost
certainly the origin of the “shock to the community” doctrine.

The fate of the Rochin test is interesting and may afford a good indi-
cation of where Canadian law will be heading if the courts persist in placing
much reliance on Rothman. In the twenty years that followed it, Rochin
was frequently cited (often in dissents), referred to, explained, distinguished
and written about. There are well over five hundred reported American
cases in which it received a mention. It was followed as controlling precedent
only once, in a federal District Court, at trial level, where a penis swab had
been forcibly obtained from a defendant, after some preliminary beating

881bid., 173.
89Ibid., 174.
90Ibid, 175.
91Merredew P.J.O. in R. v. Texaco Canada Inc., supra, note 40, cited at 37 C.R. (3d) 177.

1984]

THE EXCLUSION OF EVIDENCE

up. 92 The evidence in this case (a blood stain) was not even reliable because
nobody had seen fit to identify the blood group. In other words, the
Rochin exclusionary rule operated par dessus le march , as a kind of eager
latecomer tired of years of idleness. The potential for the application of the
Rochin doctrine certainly continued to exist on a large scale until Mapp v.
Ohio.93 Approximately one half of the American states retained the common
law regime of admissibility until the early sixties;94 therefore the ground for
excluding improperly obtained evidence in these states could only be the
Rochin doctrine. Furthermore, under the so-called Silver Platter doctrine,
abolished only in 1959, 95 evidence improperly obtained by state agents was
admissible in federal prosecutions despite the Fourth Amendment safe-
guards, because no federal agent had taken part in the violation. Surely,
however, one could argue in these cases that, where it applied on the facts,
the Rochin bottom line prevented the reception of the evidence. Despite
these openings, the doctrine of the shock to the conscience never blossomed.
Not only did it fail to influence the overall orientation of the case law, but
it was also repeatedly attacked by members of the Supreme Court from 1952
onwards until Mapp v. Ohio. For Mr Justice Clark, speaking in Irvine v.
California,96 the test

other than by guesswork –

makes for such uncertainty and unpredictability that it would be impossible
just how brazen the invasion of the
to foretell –
intimate privacies of one’s home must be in order to shock itself into the
protective arms of the Constitution. In truth, the practical result of this ad hoc
approach is simply that when five Justices are sufficiently revolted by local
police action, a conviction is overturned and a guilty man may go free. 97
With Mapp, the Fourth Amendment standard of unreasonableness be-
came the common exclusionary denominator throughout the United States.
The threshold of the debate having moved forward, developments in the
ongoing controversy which would recently have appeared far-fetched now
became predictable. In particular, the applicability of the exclusionary rule
in cases involving foreign investigations would inevitably arise. Would there
be, in other words, a surrogate Silver Platter doctrine where foreign officials
had carried out an unreasonable search outside the American territory?
Mapp could be read as suggesting that deterrence constituted the primary

92United States v. Towsend, 151 R Supp. 378 (1957); but see Use of Stomach Pump Vitiates

Due Process (1951-52) 4 Stanford L.R. 591, 594, fn. 21.

93Supra, note 9.
94See Elkins v. United States, 364 U.S. 206, 224 (1959) and Mapp v. Ohio, supra, note 9,

651.

95First acknowledged by the Supreme Court in Byars v. United States, 273 U.S. 28 (1927),

the Silver Platter doctrine disappeared with Elkins, supra, note 94.

96347 U.S. 128 (1954).
971bid., 138. See Mr Justice Black’s review of this evolution in Mapp v. Ohio, supra, note

9, 663 et seq.

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purpose of the exclusionary rule. Working with this rationale, there could
not be much point in extending the scope of the rule to cases involving
improprieties by foreign officials. Deterrence, after all, could hardly be seen
as an exportable commodity. A California case,98 decided by a circuit Court
of Appeals, soon dealt with the issue in authoritative terms. The case had
resulted from a warrantless search in Tijuana, Mexico. “Neither the Fourth
nor the Fourteenth Amendments”, said the Court, “are directed at Mexican
officials and no prophylactic purpose is served by applying an exclusionary
rule here since what we do will not alter the search policies of the sovereign
Nation of Mexico”. 99 Again, one could easily anticipate the next step in the
growth of this side issue: what would happen if the unreasonable search in
a foreign jurisdiction had been carried out on behalf or with the assistance
of American law enforcement agents? The Silver Platter doctrine itself of-
fered an answer. Although before Elkins’00 federal officials had been allowed
to take advantage of evidence obtained illegally under state law, this loop-
hole availed only where the reprehensible investigation methods were not
“a joint operation of the local and federal officers”.10′ Obviously, the same
reasoning could apply, mutatis mutandis, to cases of foreign searches.
Stonehill v. United States’0 2 stands for this proposition, later reformulated
as follows: “if it is shown that American agents are in privity with the search
through direct participation or procurement, the rule of exclusion may be
invoked”. 103

But there remained one further difficulty. Suppose that foreign police
officers obtain evidence outside the United States through brutally abusive
methods of the Rochin or the Mapp type. The evidence then finds its way
into the hands of an American prosecutor who introduces it into court,
knowing that American law enforcement agents are totally blameless. Can
the court consider the manner in which foreign police officers secured the
evidence and exclude it on that basis? Apparently, no reported case has yet
produced this result. But several appellate courts have addressed the issue
and reached in the abstract the conclusion that the evidence ought to be
discarded “if the circumstances of the foreign search and seizure are so

9″Brulay v. United States, 383 E 2d 345 (1967) certiorari denied, 389 U.S. 986 (1967).
99Ibid., 348.
‘Supra, note 94.
1O’Byars v. United States, supra, note 95, 33. See also Lustig v. United States, 338 U.S. 74

(1949).

1o2405 F 2d 738 (1968), certiorari denied, 395 U.S. 960 (1969).
03United States v. Phillips, 479 F. Supp. 423,431 (1979), a case resulting from an investigation
1

by the Royal Canadian Mounted Police and the Edmonton City Police.

1984]

THE EXCLUSION OF EVIDENCE

extreme that they “shock the judicial conscience”. 10 4 The adjective judicial
is actually a gloss on the original phrase, as it first appeared in 1965.105

One might have expected American courts to show greater sensitiviy
than Canadian courts in cases involving improperly obtained evidence. For
more than two decades, American law proceeded on its own separate course
and became hyper-allergic to Fourth Amendment violations. Should not
this factor have increased the judicial capacity to be shocked by illegal
investigations? Apparently, it did not. The revived “shock to the conscience”
test has had very little practical effect on the admissibility of improperly
obtained evidence. In several cases, it has lengthened the discussion, but it
has never changed its outcome. The American Bench draws the dividing
line between shock and peace of mind where deliberate brutality or wicked
deception occurs. The dictates of the Canadian judicial conscience are not
likely to be significantly different. As long as the shock to the community
remains the test, the Canadian exclusionary rule will rarely interfere with
the free intake or improperly obtained evidence: one imagines that Canadian
citizens will not often shock themselves into the protective arms of section
24(2).

A less demanding and more rational test, based on the notion of ef-
fective enforcement, would seem more suitable. In Rothman, Mr. Justice
Estey, who dissented with Chief Justice Laskin, observed that bringing the
administration of justice into disrepute means, in effect, “prejudic[ing] the
public interest in the integrity of the judicial process”. 0 6 What integrity
does the judicial process retain if, consistently, the denial or infringement
of a particular Charter guarantee does not give rise to any effective remedy?
How much integrity is there in a system which places upon investigation
methods certain explicit limitations but makes no attempt to enforce them,
uses evidence which would not have been obtained at all if the system’s
own rules had been complied with, proclaims certain rules in the abstract

104United States v. Morrow, 538 F 2d 120, 139 (1976), certiorari denied, sub nom. Martin
v. United States, 430 U.S. 956 (1977). See also United States v. Hensel, 699 F 2d 18 (1983),
and Commonwealth v. Gagnon, 449 N.E. 2d 686 (1983).

105The use of this concept in connection with foreign searches can be traced back to Birdsell
v. United States, 346 E 2d 775, 778, fn. 10 (1965), in which Judge Friendly, writing for the
Court, had observed (p. 782, fn. 10): “We do not mean to say that in a case where federal
officials had induced foreign police to engage in conduct that shocked the conscience, a federal
court, in the exercise of its supervisory powers over the administration of federal justice, might
not refuse to allow the prosecution to enjoy the fruits of such action.” Apparently, what was
originally perceived as a single exception (American participation in foreign investigations that
shock the conscience) later became a double-barrelled exception (American participation in
foreign investigations unreasonable under the Fourth Amendment or foreign investigations
which, regardless of any American participation, shock the conscience): see United States v.
Phillips, supra, note 103, 431.

106[1981] 1 S.C.R. 640, 649, (1981) 121 D.L.R. (3d) 578.

McGILL LAW JOURNAL

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and then ignores them in practice, says one thing and does the opposite?
This kind of argument, intellectually dishonest when carried this far, has
merit when it is kept in perspective and weighed against other considera-
tions. It persuaded the majority of the Saskatchewan Court of Appeal in R.
v. Therens.10 7 Why could it not be made under section 24(2) if the courts
finally discard the emotional “shock to the community” test? A reasonable
man might be prepared to compromise with search warrant requirements
when a Clifford Olson is on the loose. He will be less prepared to compromise
when the police use road blocks for random breathalyzer testing the night
the Oilers win the Stanley cup. To tolerate the former is to accept that there
are limits to search and seizure safeguards. To tolerate the latter is to accept
that, despite what the Charter says, these safeguards do not exist at all. One
is a concession to law enforcement, the other is a full surrender. Neither
would satisfy the Rochin/Rothman test. Only the second, I suggest, could
bring the administration of justice into disrepute, were the courts to admit
the evidence without batting an eyelash.

IV. Avoiding the Pitfalls of Literalism

In its first decision on the Canadian Charter of Rights and Freedoms,
Skapinkerv. Law Society of Upper Canada, 0 8 the Supreme Court of Canada
adopted a surprisingly narrow and literal line of interpretation to rule on
the applicability of sub-section 6(2)(b). The right “to pursue the gaining of
a livelihood in any province” is really a mobility right, said the Court, and
not a separate and distinct right to pursue the gaining of a livelihood in any
province. Why? To a large extent because it is included under the heading
“Mobility Rights”. The Court did not deal with the fact that, in the French
“Mobility Rights” reads “Libert6 de circulation et d’6tablissement”. 109 Whatever
the merits of this decision –
and one can accept that it actually coincides
with the intent, if not the letter, of the provision, even though in fact the
judgment purports to do the reverse –
the manner and form of the opinion
augurs a period of dry literalism in Charter interpretation cases.

Section 24(2) specifically states that evidence shall be excluded if “the
admission of it in the proceedings would bring the administration ofjustice
into disrepute”. A literal reading of the provision leaves no choice: the focal
point in the analysis must be the admission of the evidence, not the manner
in which it was obtained. The latter, it seems, will only qualify as one of
the various circumstances which the court can consider in exercising its

07Supra, note 22, 225-7.
103(1984) 53 N.R. 169 (S.C.C.).
109Supra, note 1, s. 6 [emphasis added].

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THE EXCLUSION OF EVIDENCE

jurisdiction to suppress. Because of this somewhat tortuous phrasing, punc-
tilious adherence to the letter of the provision might substantially weaken
the power to exclude evidence. Doctrinal commentary has not yet under-
scored this feature of section 24(2); in fact the steps in the analysis are
sometimes collapsed in order to ask the question “would the violation of
a Charter right bring the administration of justice into disrepute?”” I0

On the other hand, some appellate decisions do emphasize that the
section centers on the effect of admission, not the effect of the infringement.
In a case now before the Supreme Court of Canada, R. v. Trask,”‘ the Court
of Appeal of Nova Scotia observed that in the circumstances at hand, the
exclusion of the evidence, rather than its admission, would bring the admin-
istration ofjustice into disrepute, and that consequently the evidence should
not be excluded. Similar dicta are found in judgments of the Ontario 112 and
the British Columbia 13 Courts of Appeal. Section 24(2), on its face, lends
itself to this reading and supports the distinction made in these cases. Re-
grettably, however, the distinction, should it take hold, will further restrict
the scope of the Canadian exclusionary principle and will produce a con-
ceptual hotchpotch unique to Canadian law. Another Court of Appeal case,
this one from Manitoba, 114 may be the harbinger of this evolution. Evidence
in the form of drugs was admitted in this case because “[t]here was no
trickery, no forced confession and no situation where the evidence sought
to be admitted is highly prejudicial but of tenuous probative value”.’ ‘1 The
latter phrase, of course, is a reference to the Wray 16 conundrum which two
judges of the Court do in fact treat as a relevant precedent.

The notion that the admission of evidence can bring the administration
of justice into disrepute, and the words used to express this notion, come
from Mr Justice Aylesworth’s judgment in Wray. The complete passage
reads as follows:

In our view, a trial Judge has a discretion to reject evidence, even of substantial
weight, if he considers that its admission would be unjust or unfair to the
accused or calculated to bring the administration of justice into disrepute…. 1 1 7

0See, for example, Ewaschuk, supra, note 76, 52.
1
“‘(1983) 6 C.C.C. (3d) 132, 137. (N.S.C.A.).
” 2R. v. Singh, supra, note 37, 44. See also R. v. Simmons, supra, note 22, 219 (per Howland
113R. v. Collins, supra, note 37, 144.
” 4Esau, supra, note 20.
1 5 lbid., 238 [emphasis added], Huband J.A. with the concurrence of Monnin J.A. See also

C.J.O.).

R. v. Dixon (1983) 11 W.C.B. 401 (B.C.S.C.).

116Supra, note 13.
17[1970] 2 O.R. 3, 4, (1970) 3 C.C.C. 122, (1970) 9 C.R.N.S. 131.

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Clearly, the exclusionary principle contemplated here incorporates a sub-
stantial element of extrinsic policy. “Unfairness” could be interpreted as
something that hinges on reliability, but if this had been the intent, the
Ontario Court of Appeal would have declared the evidence admissible in
Wray. As we know, it decided that the trial judge, on the facts, had correctly
excluded the evidence. The decision was then reversed by the Supreme
Court of Canada, 18 which reaffirmed what it took to be the common law
rule: no exclusion unless it is on grounds of instrinsic policy. But the for-
mulation “admission of evidence which [will] [would] [is calculated to] bring
the administration of justice into disrepute” lingered on, became a part of
our wiretapping legislation and remains to this day uniquely Canadian. No
comparable formulation or construct appears in the leading cases which
have estblished an exclusionary rule or discretion in England, 19 Scotland,120
Ireland, 121 Northern Ireland, 122 Australia, 123 New Zealand 124 or the United
States. 125 The phrase “imperative of judicial integrity” which occasionally
appears in American cases refers to something else, more consistent with a
strict exclusionary rule. The Canadian test, therefore, is truly indigenous.
It is also confusing; in saying this, one must of course be fully aware that
the issue becomes the drafting of the Charter rather than its interpretation.

It is very difficult to see how the admission of evidence, in and of itself,
can ever bring the administration of justice into disrepute. The problem
may perhaps arise where there exists a well-established rule of extrinsic
policy (such as the legal professional privilege) and a court admits evidence
despite a manifestly valid claim of privilege. The problem, more likely, can
arise if the evidence itself is of manifestly insufficient relevance, weight or
reliability (all three of which pertain to intrinsic policy). But to say that
evidence shall be excluded when, having been obtained improperly, its ad-
mission would bring the administration of justice into disrepute, and to
mean it literally, is to confine the operation of the exclusionary principle
to an exceedingly small class of cases. It will arise in confession cases, for
which, however, there already exists a common law rule that fully satisfies
the requirements of intrinsic policy and occasionally exceeds them. But
where else?

” 8Supra, note 13.
” 9Kuruma, supra, note 14, and more recently, Sang, supra, note 12.
120Lawrie, supra, note 10.
121The People v. O’Brien [1965] I.R. 142 (C.C.A.).
122R. v. Murphy [1965] N.I. 139 (Courts-Martial App. Ct).
123R. v. Ireland (1970) 126 C.L.R. 321 (Aust. H.C.) and Bunning v. Cross (1978) 141 C.L.R.

54, (1978) 19 A.L.R. 641 (H.C.).

124R. v. Capner [1975] 1 N.Z. L.R. 411 (C.A.) and Police v. Hall [1976] 2 N.Z.L.R. 687

(C.A.).

125 Weeks v. United States, 232 U.S. 383 (1914) and Mapp v. Ohio, supra, note 9.

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Two cases might fit the description. The first, paradoxically, happens
to be the common law monument to indiscriminate admissibility, the very
foundation of Wray, Kuruma v. The Queen. 126 This case, it will be recalled,
began with a search performed under Emergency Regulations applicable in
Kenya. Two officers who, not being of the rank of Assistant Inspector, lacked
the authority to carry out warrantless searches, had subjected Kuruma to a
personal search. They testified at the trial that they had found on him two
rounds of ammunition and a pocket knife. Kuruma was a rural worker of
good reputation. At the time of the events, he knew that a road block had
been set up down the road and he could therefore have avoided the search.
He denied throughout his trial that he had been found in possession of these
items. They were admitted nonetheless and he was sentenced to capital
punishment. The Privy Council upheld this ruling on admissibility.

But more facts are needed to complete the picture. First, despite the
appearances, the illegality here was more substantive than procedural. As
one Canadian commentator wrote: “It is entirely likely that the ordinary
Kenya policeman has a lively hatred of the Mau Mau and.would be just as
ready to invent the finding of two bullets as would a tormented prisoner to
invent a confession”. 27 And indeed, some time before Kuruma’s appeal
reached the Privy Council, the Court of Appeal for Eastern Africa heard a
remarkable case from the same area involving the same emergency regu-
lations, Chege s/o Kamau v. The Queen ,128 and acquitted two police officers
below the rank of Assistant Inspector who had been charged with unlawful
possession of weapons. The acquittal was based on a technicality: the Court
found that the officers should have been charged with a different offence,
namely extracting money by false pretence. They had been caught planting
rounds of ammunition on passers-by and threatening to lay capital charges
against them if they did not hand over a certain sum of money. Real evi-
dence does not speak and cannot lie, but he who claims to have found it
can certainly lie through his teeth. Second, in Kuruma’s case, third parties
who had witnessed the search never testified; some of the real evidence
allegedly found on the accused (a pocket knife) disappeared and was never
produced at the trial. Third, a factor which, of course, could not have entered
into the calculation on the issue of admissibility at the relevant time, shows
the hiatus between the actual outcome of the case and the juridical prop-
osition it supports: the Privy Council upheld the conviction, but stated that
there were certain “matters of fact in the case which caused [their Lordships]

126Supra, note 14.
’27Franck, Comment on Kuruma v. The Queen (1955) 33 Can. Bar Rev. 721, 730. The same
point is made persuasively by Kasunmu, Admissibility of Illegally Obtained Evidence in Nigeria
– Based on Sadau and Another v. The State, (1969) 3 Nigerian L.J. 83, 89.

128(1954) 21 E.A.L.R. 363.

McGILL LAW JOURNAL

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some uneasiness” and recommended that the mandatory sentence of death
passed on Kuruma should not be carried out until the Secretary of State
had considered the case. 29

The illegality in Kuruma was not, in the absence of further evidence
of impropriety, of a kind that could bring the administration ofjustice into
disrepute. It had involved no violence and the degree of instrusiveness of
the search did not make it offensive. However, the admission of the evidence,
in all the dubious circumstances of the case, could bring the administration
of justice into disrepute.

City of Montreal v. Lacroix,130 decided in 1909 by the Quebec Court
of Appeal, is not nearly as well known. As a result of an unexplained sub-
urban feud, the police had placed a prostitute in a house for the purpose
of charging the owner with keeping a house of “ill-fame”. The owner was
convicted. The Court of Appeal decided, among other points, that the evi-
dence had been properly admitted despite the method for obtaining it. In
a lengthy and vocal dissent, Mr Justice Lavergne observed that this method
was [translation] “one of fraud and horror”, “monstrous [and] unworthy
of a civilized country”. 131 Had he considered the question from another
angle, he might have reached the conclusion that the very admission of the
evidence brought the administration of justice into disrepute.

In the end, both of these cases amount to oddities: they present highly
unusual fact patterns (the second perhaps slightly less so than the first) and
they could have been resolved satisfactorily by giving no weight to the
evidence. They cannot possibly be treated as representative of the sort of
situation section 24(2) was intended to cure. But in arriving at this conclu-
sion, one does shift the emphasis from the admission of the evidence to the
infringement committed in obtaining it and one rewrites the provision sub
rosa. The trouble is that it needs rewriting if it is to be effective. Judicial
reminders that the subsection contemplates, and contemplates only, the
effect of admission, will, if they are taken seriously, stultify the exclusionary
principle and resuscitate the Wray formula.

Another conceptual jumble produced by an excess of literalism is the
theory according to which section 24(2) created a duty to exclude evidence,

129Supra, note 14, 205.
130(1909) 19 B.R. 385, (1909) 16 C.C.C. 395 [hereinafter cited to B.R.].
3’Ibid., 417.

1984]

THE EXCLUSION OF EVIDENCE

whereas section 24(1) encompasses among other appropriate and just rem-
edies a discretion to do so. Therens,132 decided by the Saskatchewan Court
of Appeal, makes use of this distinction, a development easily explicable in
this particular case. In order to avoid what he probably perceived as the
unnecessarily narrow test of section 24(2), the trial judge had reintroduced
the issue of exclusion under section 24(1). A majority of the Court of Appeal
approved of this reasoning and several cases have followed its lead. It is
difficult not to have sympathy for this view but it may not survive the final
appeal in Therens to the Supreme Court of Canada. Although the interpre-
tation is deft, it fails ultimately to convince. When, all other things being
equal, a specific provision deals explicitly with a fraction of the whole and
another, general provision deals open-endedly with the whole, the specific
should have precedence over the general if the issue concerns the fraction
and not the whole. Canons of statutory interpretation rarely provide com-
pelling solutions but they do rest on plausible assumptions. Here, the as-
sumption seems a sensible one. The Canadian exclusionary principle almost
never saw the light of day. When it finally appeared in the Constitution, it
did so as a discrete entity, worthy of its own provision. The circumstances
of its birth indicate that it is not to be treated like any other member of the
family of remedies. Moreover, the Therens interpretation would set up two
regimes of exclusion side by side, something which can only generate con-
fusion and which seems a curious result in a jurisdiction that resisted for
so long any policy of exclusion.

A simpler solution would have been to reject from the outset the “col-
lective concussion” test now tied to section 24(2) and to state the matter
slightly differently. Failure by the police to comply with section 10 of the
Charter can only be cured ex post facto (this goes almost without saying).
Damages could hardly serve any useful purpose in this case: the prejudice
is not quantifiable. A stay of prosecution, on the other hand, is overkill;
used indiscriminately in lieu of exclusion, it might in some cases preclude
the use by the prosecution of other properly obtained and sufficient evidence
of guilt. Excluding evidence, which incidentally might not have been avail-
able had section 10 been complied with, seems a more suitable remedy. It
cures the infringement by removing its effect. Conversely, the admission of
the evidence translates into a denial of any adequate remedy, which amounts
to obliterating a Charter right. Why have such a right, then, if it can be
violated and the violation quickly forgotten? Why make the Charter lie if

132(1983) 148 D.L.R. (3d) 672, (1983) 5 C.C.C. (3d) 409. See also R. v. Cohen (1983) 148
D.L.R. (3d) 78, 93, (1983) 5 C.C.C. (3d) 156 (B.C.C.A.); R. v. Gibson (1983) 37 C.R. (3d) 175,
186 (Ont. H.C.); R. v. L.A.R. (1983) 4 D.L.R. (4th) 720, 723-4, (1983) 9 C.C.C. (3d) 144 (Man.
Q.B.); and R. v. Manninen (1983) 43 O.R. (2d) 731, 740, (1983) 3 D.L.R. (4th) 541, (1983) 8
C.C.C. (3d) 193 (C.A.).

REVUE DE DROIT DE McGILL

[Vol. 29

it is so easy to ensure that it speaks the truth? In a case such as this, involving
a victimless offence, the judicial refusal to sanction section 10 would bring
the administration of justice into disrepute in the eyes of a reasonable man.

The characterization of section 24(2) as a “duty” to exclude evidence
can also serve a more questionable purpose, as in R. v. Collins, where the
judgment of Seaton J.A. contains the following passage:

Nothing in section 24(2) suggests a discretion. If it is established that admission
of the evidence would bring the administration of justice into disrepute, “the
evidence shall be excluded”. There is only the one test. When it is passed, the
evidence is excluded. If it is not passed, the evidence is admitted. There is no
basis for any other test, or for the exercise of a discretion. 33

On a first reading, this interpretation seems innocuous enough, though per-
haps needlessly rigid. But, one wonders, why is the point being made at all?
Probably as a rhetorical ploy, to commend to the reader the notion that a
very demanding test should govern the application of section 24(2). If the
Canadian exclusionary principle operates as a strict or blind rule, of the on/
off, circuit-breaker type, then beyond a certain point the court has no choice
in the matter and must exclude the evidence, regardless of the equities of
the case. It follows that one should place the threshold of exclusion as high
as possible, in order not to be compelled to exclude evidence against one’s
wishes: otherwise, Coolidge v. New Hampshire134 and comparable cases
might repeat themselves in Canada, much to the chagrin of right-thinking
citizens.

The characterization in terrorem of the Canadian exclusionary principle
as a “rule”, introduced in an opinion which contains several critical com-
ments on the American Exclusionary Rule, is a plea for a narrow or ultra-
cautious interpretation of section 24(2). As was pointed out by Professor
Don Stuart, “[i]t seems curiously blinkered to seize on the phrase ‘evidence
shall be excluded’ in s. 24(2) for the view that there is no discretion to
exclude in Canada when the basis for exclusion –
bringing the adminis-
tration ofjustice into disrepute –
surely requires a large measure ofjudicial

’33Supra, note 37, 145 [emphasis added].
134403 U.S. 443 (1971). Detractors of the American Exclusionary Rule often mention this
case, which involved a gruesome child murder, as an example of the brand of injustice generated
by the Rule. The appeal raised an important question: can the prosecutor who personally
assumes the direction of the investigation issue a warrant to the police? It was decided by a
narrow majority in favour of reversing the conviction, but nothing indicates that Coolidge was
ultimately acquitted in the subsequent proceedings. There are, of course, other instances of the
harshness of the Rule: See Davis v. Mississippi, 394 U.S. 721 (1969), (rape involving grievous
bodily harm) and Bumper v. North Carolina, 391 U.S. 543 (1968), (double rape and attempted
murder).

1984]

THE EXCLUSION OF EVIDENCE

discretion. .. Given that s. 24(2) does involve discretion, the analogy to
the United States experience with the exclusionary rule seems inappropriate”.135
The range of factors and circumstances which the court can consider
under section 24(2) necessarily denotes a discretion. So does the generality
of wording of section 24(2) and the lack of any guidance in the Charter itself
as to the respective weight or significance of these factors and circumstances.
The provision manifestly calls for individualized solutions in response to
the specific factual features of each case (“having regard to all the circum-
stances”), something more easily achieved by preserving a good measure
of discretion at trial level. 136 The very lay-out of section 24(2) recalls a
similar provision in the 1975 draft Evidence Code, which provision was
understood at the time as discretionary in nature. 137 It is of course true that
the power vested in the courts by section 24(2) does not fall in the category
of unfettered discretions. It will be exercised judicially, according to reason
and, eventually, precedent; furthermore, appellate courts will continue to
supervise closely its use by trial courts. In essence, however, it remains a
discretionary power, an instrument ofjudicial wishes and, as such, one which
could hardly produce results similar to Coolidge v. New Hampshire. Why
then stare at the word “shall” and call the provision a rule, as if it operated
mechanically or fata obstant?

35R. v. Collins, Annotation, supra, note 37, 133 [emphasis in original].
1
136D.M. Walker notes in The Oxford Companion to Law (1980) 363: “Vesting discretionary
power in judges is one of the commonest ways of individualizing the application of law and
making it flexible and adaptable to circumstances; without it law would be much more often
criticized as harsh, unfeeling, and unjust.” Section 24(2) cannot have been intended to produce
universal and rigid rulings, oblivious of all but a few “relevant” circumstances; unlike the
American rule, it places a higher premium on flexibility and popularity than on uniformity
and predictability of result.

’37Law Reform Commission of Canada, Report on Evidence (1975) 22:

15. (1) Evidence shall be excluded if it was obtained under such circumstances that
its use in the proceedings would tend to bring the administration of justice into
disrepute.
(2) In determining whether evidence should be excluded under this section, all the
circumstances surrounding the proceedings and the manner in which the evidence
was obtained shall be considered including the extent to which human dignity and
social values were breached in obtaining the evidence, the seriousness of the case,
the importance of the evidence, whether any harm to an accused or others was
inflicted wilfully or not, and whether there were circumstances justifying the action,
such as a situation of urgency requiring action to prevent the destruction or loss of
evidence.

Commenting on this exclusionary principle and the guidelines of 15(2), the Commission stated
at page 62: “From these it is evident that the intent of the section is not to incorporate an
absolute exclusionary rule into Canadian evidence law, but to give judges the right in excep-
tional cases to exclude evidence unfairly obtained, and thus restore what many believe to be
the English common law discretionary rule” [emphasis added]. This ” right” to exclude was
thus seen as discretionary despite the use of the word “shall” in s. 15(1).

McGILL LAW JOURNAL

[Vol. 29

Conclusion

It is said that one learns from one’s mistakes. The advice is not meant
as an encouragement to make mistakes for the purpose of learning. In ap-
proaching section 24(2) of the Charter, Canadian lawyers and judges are
fortunate in that they can learn from the mistakes of many others. They
can learn from their forefathers’ mistakes: England, Scotland and Ireland
tried for two or three decades different policies of discretionary exclusion
which shaped in varying degrees the current Canadian principle. They can
learn from their neighbours’ mistakes: American law has carried to an ex-
treme the logic of deterrence through exclusion, but the proximity of this
experience should not deter Canadian courts from excluding evidence in
cases that are neither extreme nor notorious. They can learn from their
cousins’ mistakes: Australia and New Zealand have already spent several
years testing a discretion to exclude whose similarity with the Canadian
principle cannot be ignored. Less judicial reluctance and more sensitivity
to comparative law by the legal profession can bring out the best of section
24(2): a balanced principle of discretionary enforcement rather than an ec-
centric rule for the mechanical unshocking of a fictitious public opinion.

Postscript

The subject of this paper is dangerously topical, and the author con-
gratulates himself for having expressly disclaimed any gift of clairvoyance
at the time of presentation. At least one major development occurred in
the summer of 1984 and now requires a short postscript.

On July 5, the United States Supreme Court rendered two decisions of
great significance, United States v. Leon 138 and Massachusetts v. Shep-
pard,39 which noticeably increase the angle of convergence between Amer-
ican and Canadian law. In these two cases, the Court adopts by a majority
a “reasonable mistake” exception to the Exclusionary Rule, applicable to
searches under warrant. The notion is perhaps not as amorphous as a full-
fledged “good faith” exception, which one participant in the C.A.L.T. con-
vention described as a “black hole” in legal reasoning, capable of swallowing

13852 L.W. 5155 (1984).
139 Ibid., 5157. Two other cases, Immigration and Naturalization Service v. Lopez.Mendoza,
ibid., 5190, and Segura v. United States, ibid., 5128, decided on the same day, also restrict in
other respects the scope of search and seizure safeguards.

1984]

THE EXCLUSION OF EVIDENCE

555

up Fourth Amendment safeguards. Stevens J., however, does observe that
Leon and Sheppard promulgate a good faith exception.’ 40 For Brennan J.
(dissenting in both cases with Marshall J.), Leon is the pidce de resistance
in a process of “gradual but determined strangulation of the [exclusionary]
rule. It now appears that the Court’s victory over the Fourth Amendment
is complete.”‘ 4’

The majority opinion, delivered in both cases by White J., relies on
recent empirical data and suggests that, in the end, the efficacy of exclusion
as a deterrent is proportional to the flagrancy of the police’s misconduct. 142
The Court treats as speculative the argument that exclusion in cases where
a warrant should not have issued will deter future “magistrate shopping”
and unsubstantiated warrant applications. Judges must now examine each
case on its merit, bearing in mind that there can be no deterrence where
the police have no reason to know that their conduct is unconstitiutional.

Stevens J. writes a single separate opinion. Distinguishing the two cases
on precise factual grounds, he concurs in the result of Sheppard, but dissents
in Leon, which he would have remanded to the Court of Appeal for recon-
sideration. In a penetrating analysis of the majority’s reasons, he points to
a central conceptual flaw: ” We cannot intelligibly assume arguendo that a
search was constitutionally unreasonable but that the seized evidence is
admissible because the same search was reasonable.”‘143 A search is either
reasonable or not. It makes no sense to ask whether the police had reasonable
grounds to rely on the magistrate’s finding of probable cause. The new rule
will encourage police officers to present insufficiently supported warrant
applications in the hope that the magistrate “may take the bait”.’ 44 The
solution, already envisaged in Illinois v. Gates,145 consists in adopting more
practical standards of probable cause (for searches under warrant) and rea-
sonableness (for warrantless searches). For, “when probable cause is lacking,
then by definition a reasonabnle person under the circumstances would not
believe there is a fair likelihood that a search will produce evidence of a
crime”. 146

In short, the question in these cases was whether the Exclusionary Rule
can be made to respond to slightly more flexible criteria than those of the
Fourth Amendment. In Canada, the question would not arise: the Charter

140Ibid., 5172.
‘4’Ibid., 5163.
142Ibid., 5158.
1431bid., 5172.
1441bid., 5175.
145103 S. Ct. 2317 (1983).
146Supra, note 138, 5176.

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[Vol. 29

already separates safeguards, such as section 8, from the enforcement mech-
anism in section 24(2). But, under the new rule, American courts will now
have to articulate notions of “flagrancy” and “technicality” of misconduct.
While in the United States these notions will be used specifically to identify
“deterrable” misconduct, they should still provide useful insights for Canadian
lawyers. Leon and Sheppard are fine pieces of judicial craftsmanship in
which the Canadian Bench and Bar will find a convenient summary of
powerful and irreconcilable arguments.

Some Comments on Subsection 92(10) of the

Constitution Act, 1867

I.H. Fraser*

Beneath a deceptively simple appearance,
subsection 92(10) of the Constitution Act, 1867
conceals a scheme for the distribution of leg-
islative power which is subtle, sophisticated,
and powerful. The author examines some of
the leading decisions from the large body of
case law and finds that confusion and con-
ceptual uncertainty have long been obstacles
to a clear understanding of the provision. A
fundamental distinction, for example, must
be made between “works” and “undertak-
ings”. Jurisdiction over the one does not nec-
essarily give jurisdiction over the other. The
author argues that distinctions between intra-
and inter-provincial undertakings should be
drawn by examining the nature of the un-
dertaking’s function. On the other hand, a
functional analysis is not an appropriate method
for dividing intra-provincial works from in-
ter-provincial ones. While the conceptual dis-
tinctions enunciated are at times subtle, the
author concludes that they are fundamental
to a clear analysis of subsection 92(10), and
unless they are carefully understood and ap-
plied, confusion and inconsistency will con-
tinue to plague discussion of this basic
constitutional provision.

Derriere une apparente simplicit6, l’article
92(10) de la Loi constitutionnelle de 1867
cache un m~canisme de distribution du pou-
voir l6gislatif subtil, complexe et puissant.
L’auteur examine la jurisprudence et y d6-
couvre une certaine confusion et un manque
de clart6 conceptuelle qui emp~chent une
comprehension juste de cette disposition. Une
distinction fondamentale, par exemple, doit
8tre faite entre les <( travaux > et les <( entre- prises > La juridiction sur les uns ne comprend
pas n&cessairement la juridiction sur les autres.
L’auteur pretend que la distinction entre les
entreprises intra- et inter-provinciales doit se
faire selon ]a fonction d’une activit6 donnre.
Par contre, cette analyse fonctionnelle ne
constitue pas une mrthode adequate pour dif-
ferencier les travaux intra- et inter-provin-
ciaux. Bien que rauteur reconnaisse le caract~re
parfois subtil de ces distinctions, il conclut
qu’elles forment la base d’une analyse claire
de l’article 92(10). A moins que ces distinc-
tions ne soient comprises et appliqu~es de
fagon rigoureuse, la confusion et l’illogisme
seront la r~gle plutft que ‘exception sous cet
article.

*LL.B. (McGill). The author is indebted to Professor Stephen A. Scott of McGill for his
instruction and assistance throughout the author’s studies at McGill. In particular, this essay
could not have been written without Professor Scott’s patient criticism and encouragement.
Any errors, of course, are those of the author alone.

@McGill Law Journal 1984
Revue de droit de McGill

558

McGILL LAW JOURNAL

[Vol. 29

Synopsis

I. General Introduction

A. Constitution Act, 1867
B. Quebec Resolutions
C. Ejusdem Generis
D. Effect

II. Works and Undertakings

A. Works as “Parts of” Undertakings
B. Undertakings as “Parts of” Works

1. Paragraph (c)
2. Paragraph (a)

a. Radio Reference
b. Labour Conventions
c. Winner

MI. Legislative Jurisdiction

A.

Introduction

1. GO Train

B. Character of the Jurisdiction over Undertakings
C. Character of the Jurisdiction over Works

1. Montcalm Construction
2. Notre Dame de Bonsecours

D. Exclusive and Concurrent

1. General Approach
2. Some Examples
3. Confficts

E. Paragraph (c)

1. Kettle River
2.

.Bourgoin