The Admission and Exclusion of Unconstitutionally Obtained Evidence in Canada

I n Collins v. Virginia, 138 S. Ct. 1663, 1675 (2018), Justice Thomas suggested in a concurring opinion that the “assumption that state courts must apply the federal exclusionary rule is legally dubious.” In Canada, evidence obtained in violation of our Constitution can only be excluded if a court concludes that its admission “would bring the administration of justice into disrepute.” This applies in every criminal case in Canada. This test is mandated by section 24(2) of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, which states: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.1