What is the test for admitting or denying evidence that has been obtained in violation of the Charter of Civil Procedure?

British Columbia, Canada


The following excerpt is from R. v. Hay, 1997 CanLII 558 (BC SC):

In considering this question I bear in mind the test enunciated in Collins v. The Queen, 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1, at pages 18 and 19, where Lamer, Chief Justice of Canada, in considering this matter, wrote: The factors that the courts have most frequently considered include: -what kind of evidence was obtained? - what Charter right was infringed? - was the Charter violation serious or was it of a merely technical nature? -was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith? - did it occur in circumstances of urgency or necessity? -were there other investigatory techniques available? - would the evidence have been obtained in any event? -is the offence serious? -is the evidence essential to substantiate the charge? -are other remedies available? If the admission of the evidence in some way affects the fairness of the trial, then the admission of the evidence would tend to bring the administration of justice into disrepute and, subject to the consideration of the factors, the evidence should normally be excluded . . . Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair. However, the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination.

In considering the first question posed by the learned Chief Justice of Canada, namely what kind of evidence was obtained, and in considering his dicta on the matter of conscripted evidence, I do so in the context of the dicta enunciated in Stillman v. The Queen, 1997 CanLII 384 (SCC), 113 C.C.C. (3d) 321, where Cory, J. at page 350 noted, in writing on the distinction between conscripted and non-conscripted evidence: I have use the term "conscripted" to describe the situation where the police have compelled the accused to participate in providing self-incriminating evidence in the form of a confession or providing bodily samples.

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