Unreal Distinctions: The Exclusion of Unfairly Obtained Evidence under S. 24(2) of the Charter

Authors

  • Steven M. Penney

DOI:

https://doi.org/10.29173/alr1161

Abstract

This article begins with an examination of the historical treatment of illegally obtained evidence in common law jurisdictions outside of Canada. Pre- Charter Canadian law, as well as pre-Charter commentary and proposals for reform are also discussed. The article then examines post-Charter jurisprudence in Canada, exploring the problems and inconsistencies in the courts' interpretation of section 24(2). The author suggests that the distinction between real/self-incriminatory evidence as a basis for exclusion is philosophically and practically flawed, and should be abandoned in favour of an approach which considers the "discoverability" of the evidence in question.

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Published

1994-08-01

Issue

Vol 32, No 4: The ALR's 100th Issue

Section

Articles

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