Friday, January 18, 2008

Exclusion of Unconstitutionally Obtained Evidence

The US Supreme Court appears to be rethinking the automatic exclusion of unconstitutionally obtained evidence.

Under s. 24(2) of the Charter, Canada has a "balancing test", although the Lamer Court (wrongly) imposed a strict exclusion rule for so-called "conscriptive evidence." In other words, if the police search your house with an improper warrant, the evidence will only be excluded if the breach is bad enough, but if they don't give you a warning about your right to counsel that conforms exactly with twenty five years of convoluted jurisprudence, any confession, no matter how damning and reliable, is out. The conscriptive evidence rule is completely inconsistent with the plain language of the Charter, as well as everything we know about its history, but it reflects the frustration of former defence counsel like Lamer in having idiots as clients.

I see two problems with exclusion of otherwise-reliable evidence as a remedy for constitutional violations:

1. It is no remedy at all for someone whose rights are violated, but who couldn’t be criminally convicted if the evidence was admitted. In other words, it provides no remedy for the (factually or legally) innocent.

2. It effectively punishes the past and future victims of the person who would have been convicted if the evidence had been admitted for the mistakes of the police. Ironically, that can only be justified on the most heartless kind of utilitarianism.

What there should be is a system of strict civil liability for constitutional breaches, where the damages are set high enough to make pursuing these cases economical for plaintiff lawyers.

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