Section 7 of the Charter and the Common Law Rules of Evidence
Supreme Court Law Review, Vol. 40, p. 415, 2008
23 Pages Posted: 28 Jul 2008
The Court has on several occasions dealt with the claim that a statutory change to the common law rules of evidence is unconstitutional because the change is inconsistent with the principles of fundamental justice. The Court's response has usually been to reject the claim and uphold the statute, but in doing so, to vindicate the values underlying the common law rule in question, usually by an exercise in statutory interpretation that preserves the trial judge's discretionary power to exclude evidence on the ground of excessive prejudice. Where this interpretation is not possible, the statute is vulnerable to invalidation. In cases where no formal constitutional issue arises, the Court has also tended to reinforce its revolutionary changes to the common law rules of evidence by intimating that they are consistent with, or perhaps even required by, section 7 of the Charter.
This combination of constitutionally informed statutory interpretation and common law development could, in principle, lead to the recognition of a general right to the exclusion of patently unreliable evidence as a principle of fundamental justice under section 7 of the Charter. But, for a variety of doctrinal and pragmatic reasons, such a dramatic change to the law of evidence is unlikely; it is more likely, and perhaps more desirable, that the Supreme Court will continue to develop the existing rules of evidence with a view to reducing the amount of unreliable evidence that is put before triers of fact. Towards the end of this paper, I argue that, along these lines, recent undesirable developments in the common law confessions rule might be reversed if more attention was paid to the norm that underlies the relationship between section 7 and the common law rules of evidence: excessively prejudicial evidence is inadmissible.
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