The Exclusionary Rule in Canada: Trends and Future Directions

Abstract

The purpose of the research work outlined in this thesis is to determine what impact the new test for exclusion developed in Grant and Harrison has had on exclusionary trends in Canada, to assess this new three-factor approach and to provide recommendations for improvement. To this end, I conducted an empirical survey of section 24(2) cases rendered in 2012 across Canada. Based on the results of this survey, I describe the current trends for exclusion in relation to the three lines of inquiry and the Charter right at issue. I also examine the application of the test to varying types of evidence. The survey found a high rate of exclusion in the 73% range.

The survey results show that developing trends do not match the predictions made by the SCC in Grant about how exclusion would operate in relation to different types of evidence. For example, there was a higher than expected rate of exclusion for breath sample results. Moreover, there was a low exclusion rate for guns as compared to the high exclusion rate for other types of non-bodily physical evidence. The rate of exclusion for section 10(b) breaches was lower than expected given the importance of the Charter interests that section 10(b) protects.

The Grant rationale and the discretionary approach to exclusion are, in my view, generally satisfactory. However the test could be improved. As regards the first Grant factor, there was considerable variation in the assessment of the seriousness of the violation given the fact-specific nature of the inquiry. For greater consistency and transparency, the test, in future, should not incorporate the good faith doctrine. Police conduct should be assessed on the basis on a scale of intentionality ranging from negligent to deliberate conduct, rather than the current process of labeling police conduct as good or bad faith. Moreover, the doctrine of discoverability should be abandoned. The focus should be placed on the events that actually occurred rather than on whether police could have obtained the evidence by legal means.