Monday, February 2, 2009

Using exclusionary rule to secure police compliance with Constitution debated

The Supreme Court of Canada will soon be releasing two important judgments on the scope of Canada's exclusionary rule. One case involves a gun (R. v. Grant), the other a large quantity of cocaine (R. v. Harrison). Some of the issues that the Court will have to struggle with are referred to by Frank Addario, President of the Ontario Criminal Lawyers Association and Justice Michael Moldaver of the Ontario Court of Appeal in their panel discussion summarized in the link above.

One of the problems in exclusionary discourse is the failure to factor in the disproportionate number of Aboriginal and racialized individuals who are subjected to unconstitutional police conduct on a daily basis. Exclusion serves as an important protection against racial profiling. The studies reveal that racialized individuals have less trust in the police complaints process and justice system than Whites and so other means of securing police compliance such as civil suits and police complaints are not likely going to materialize.

In the United States, the Supreme Court has also begun to narrow its exclusionary rule. The American context is different, however, because there is very little balancing that goes on once a breach has been found. In Canada, admission is the presumed position not exclusion. The mood of the U.S. Supreme Court is captured in an article in a recent New York Times. Click here to read it.

Posted by Professor Tanovich

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