Canada and the Exclusionary Rule — Update

I wrote a little while ago about the exclusionary rule in Canada. As Mckingford recently noted in comments, with respect to the case that was the centerpiece of the Liptak article, the Supreme Court of Canada voted 6-1 to overrule the lower courts and exclude the evidence collected after an officer conducted a search without cause and then lied about it on the stand. It should be noted that this did occur in a context in which the Court decided to allow the admission of tainted evidence in several other cases, so there continues to be case-by-case balancing that sometimes results in evidence gathered in an illegal search being admitted.* The test the Court developed in one of the companion cases considers three factors:

• (1) the seriousness of the Charter‑infringing state conduct
• (2) the impact of the breach on the Charter‑protected interests of the accused
• (3) society’s interest in the adjudication of the case on its merits.

As I said last time, I don’t think such a balancing test is necessarily objectionable. As the American case with its increasing number of exceptions demonstrates, such balancing is inevitable anyway, and it’s probably better that this balancing be explicit. If exceptions are to be made, it makes sense to consider the severity of the crime (if I understand correctly, the SCC has been much more likely to exclude evidence in drug cases than in violent offenses, which makes sense) and the egregiousness of the police misconduct, rather than, say, creating a rule that effectively allows the state to benefit from illegal searches so long as the illegality came from a state official other than a police officer.

This doesn’t necessarily mean, of course, that a similar standard would work well in the United States. As I said last time, a balancing test — whether explicit or not — is only as good as the judge applying it. And given that the most dubious exceptions to the exclusionary rule have been developed not to salvage convictions for heinous violent crimes but rather for (often minor) drug offenses, it’s far from obvious that the American Supreme Court would apply such a test in a particularly rational manner. Certainly, it’s impossible to imagine circumstances in which Alito or Roberts would ever find the balance weighing in favor of excluding evidence. (The one major case in which a rule developed where reliable evidence of a horrible violent offense would otherwise be excluded is the exception that proves the rule, as even Brennan and Marshall didn’t object to an “inevitable discovery” objection in principle.) In the Canadian context, however, it seems likely to work well enough.

*As background, it’s important to note that since Section 1 of the Canadian Charter of Rights and Freedoms says explicitly that rights are not absolute, the threshold for finding constitutional violations in Charter cases tends to to be much lower. In some of these cases, my guess is that the SCOTUS would have simply held that the searches were reasonable, making questions about whether evidence should be excluded moot.