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Report No. 94

6.3. Constitutional case in Canada.-

Is evidence rendered inadmissible merely by reason of the fact that it has been procured in contravention of the provisions of the Canadian Bill of Rights? The Supreme Court of Canada, in a ruling of 1975, considered1 the admissibility of a certificate concerning a breathalyzer test administered by officers who had refused the prior request of the accused to consult counsel. It was argued on behalf of the accused that refusal of an opportunity to consult the counsel was a violation of the Canadian Bill of Rights, that the breathalyzer test and sample was illegally obtained and therefore the certificate concerning it ought not to be admitted as evidence.

The Supreme Court by majority held that even if the evidence had been illegally or improperly obtained, there was no ground for excluding it at common law and that, in view of other evidence of intoxication, one could not characterise as unfair the acceptance of the evidence as proof of the exact quantity of alcohol absorbed into the blood stream. Speaking for the majority, Ritchie, J. said, "I cannot agree that, wherever there has been a breach of one of the provisions of that Bill, (the Canadian Bill of Rights) it justifies the adoption of the rule of absolute exclusion on the American model which is in derogation of the common law rule long accepted in this country." The evidence had been obtained in violation of section 2(c)(ii) of the Canadian Bill of Rights which (so far as is material) provides that-

"2. no law of Canada shall be construed or applied so as to

(c) deprive a person who has been arrested or detained

(ii) of the right to retain and instruct counsel without delay."

Speaking for the majority of the court, and dismissing the appeal of the accused person from a judgment of the Nova Scotia Supreme Court (Appeal Division) which had affirmed the conviction of the accused on a criminal charge, Ritchie, J. made the following observations which clinched the matter:

"The case of R. v. Drybones, 1970 SCR 282: 9 DLR (3d0 473 (Supreme Court of Canada), is authority for the proposition that any law of Canada which abrogates, abridges or infringes any of the rights guaranteed by the Canadian Bill of Rights should be declared inoperative and to this extent is accorded a degree of paramountcy to the provisions of that statute, but whatever view may be taken of the constitutional impact of the Canadian Bill of Rights, and with all respect for those who may have a different opinion, I cannot agree that, wherever there has been a breach of one of the provisions of that Bill, it justifies the adoption of the rule of absolute exclusion' on the American model which is in derogation of the common law rule long accepted in this country."

1. Hogan v. Queen, (1975) 2 SCR 574 (Canada).



Evidence Obtained Illegally or Improperly - Proposed Section 166a of the Indian Evidence Act, 1872 Back




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