Rafe Mair Online

Back in 1956, as a law student in his final year, I had my first piece published and it was in the law school journal then called Legal Notes, now the UBC Law Review. My subject was illegally obtained evidence – should it or should it not be admissible? This is topical 53 years later in light of a decision just handed down by the Supreme Court of Canada.

The case I reviewed was Kuruma v. The King. The offence happened in Kenya during the days of that country seeking its independence from Britain. Because of the threat by the terrorist group, Mau Mau, it was unlawful for a Black to have any weapons. One day Mr. Kuruma was cycling along when he was jumped by several police constables and searched. They found several rounds of ammunition on his person and arrested him. Mr. Kuruma was tried, found guilty and sentenced to hang. He appealed, in part, on the ground that the evidence, having been unlawfully obtained, was therefore not admissible. The Judicial Committee of the Privy Council, the Court of last resort for the Empire, upheld his conviction. I don’t know whether or not Mr. Kuruma was hanged.

My research for the article showed that on this matter British and American jurisprudence differed absolutely. Many of the Supreme Court of the United States rulings involved drug offenses and one I especially remember was where, after apprehension, the accused swallowed a bag of dope. The police forced an emetic into his system, in the customary fashion,  then waited patiently for the result which turned out to be as they suspected. The US Supreme Court rejected the evidence on the grounds that it was illegally obtained thus inadmissible.

The two lines of cases, then, were this: the British Courts held that evidence is evidence no matter how it’s obtained while the US proceeded on the basis that if one allowed illegal evidence this would encourage law enforcement officers to violate the Bill of Rights and, if it was admitted, would be a “poisoned tree”.

Canada has proceeded, at least since the Charter of Rights and Freedoms, down the America legal path.

I took and still take, reluctantly, the American view. If illegally obtained evidence is admissible it’s a carte blanche for police to do as they wish without any regard for the subject and would certainly bring about more wrongful convictions. Yet still … isn’t evidence evidence no matter how it’s obtained?

Canada has just, typically, found a middle route and the Supreme Court of Canada has held, in the words of Chief Justice Audrey McLachlin, that evidence that is “moderately tainted” by police misconduct can be used to convict defendants unless the violation was blatant and would shake public confidence in the justice system.

Her Ladyship said “In all cases, it is the long term repute of the administration that must be assessed.” 

 Typically Canadian thus typically sensible except for this: the choice until now was pretty simple, namely did the authorities deny the suspect his rights, yes or no? Now there will be sort of a voir dire, a trial within a trial, to determine if the breach goes beyond that hazy standards laid down by McLachlin, CJC.

I believe that the decision was a right one but lament the fact that the Court was not able to lay down some specific principles.

I believe most Canadians who care about such matters will be glad to know that a drug peddler can’t get away with it just because he was not read his rights before he was told of his constitutional rights but will mull over for some time just where the line must be drawn.