University of Toronto Faculty of Law Review

The Role of Causation under s. 24(2) of the Charter: Nine Years of Inconclusive Jurisprudence

BRIAN DONOVAN
ABSTRACT
Since 1982, Canadian courts have possessed a constitutional mandate to exclude evidence obtained "in a manner" that infringes the Charter from their proceedings if the admission of the evidence would call the administration of justice into disrepute. For nine years two competing, and incompatible, theories of what it means for evidence to be obtained "in a manner" that infringes the Charter have been used by the Supreme Court of Canada in its decisions. These may be referred to as the "causal connection" requirement and the temporal proximity requirement. On the former approach, the applicant must demonstrate that a Charter violation is causally connected to the production or discovery of the evidence sought to be excluded. On the latter approach, it is only necessary to show that the Charter violation and the production or discovery of the evidence occurred sufficiently close together in time. The choice between these two theories is important, as the temporal proximity requirement is more generous to the accused, while the causal connection requirement favours the prosecution.
It is the thesis of this article that the decisions of the Supreme Court of Canada since 1982 do not reveal any clear choice between these two theories, or provide adequate guidance to the lower courts as to what relationship between a Charter violation and the production or discovery of evidence must be demonstrated before the evidence must be excluded. The Court appears to have been concerned to preserve its flexibility to do justice in individual cases on exclusion as they come before it for decision. However, this flexibility has been purchased at the price of failure to establish a coherent and stable body of case law to govern the exclusion of evidence under the Charter, a result which is itself inimical to justice and fair outcomes overall.

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Citation: (1991) 49(2) U.T. Fac. L. Rev. 233.
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