Excluding excludable evidence in Canada

Steven Penney & Moin A. Yahya, Section 24(2) in the Trial Courts: An Empirical Analysis of theLegal and Non-legal Determinants of ExcludingUnconstitutionally Obtained Evidence in Canada. University of Alberta (2021) 58:3 Osgoode Hall L.J. [forthcoming].

Abstract

This empirical study explores the legal and non-legal factors influencing trial judges’ decisions to admit or exclude illegally obtained evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. Mining an original dataset of 1,472 reported decisions from 2013-2018, we found little evidence that they are affected by judges’ gender or partisan ideology. We did find, in contrast, that they are substantially influenced by judges’ previous professional background: former criminal defence lawyers are more likely to exclude than former non-criminal practitioners, who are in turn more likely to exclude than former prosecutors. We also found significant regional disparities, with judges in Quebec, British Columbia, Newfoundland, and Nova Scotia more likely to exclude than Alberta judges. The study also revealed that judges are more likely to admit evidence when trying more serious charges and less likely to do so when trying female defendants.

(This article was #1 in the Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal on last week's CrimProfblog.)