Section 24(2) in the Trial Courts: An Empirical Analysis of the Legal and Non-legal Determinants of Excluding Unconstitutionally Obtained Evidence in Canada

52 Pages Posted: 27 May 2021

See all articles by Steven Penney

Steven Penney

University of Alberta - Faculty of Law

Moin A. Yahya

University of Alberta - Faculty of Law

Date Written: May 20, 2021

Abstract

This empirical study explores the legal and non-legal factors influencing trial judges’ decisions to admit or exclude illegally obtained evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. Mining an original dataset of 1,472 reported decisions from 2013-2018, we found little evidence that they are affected by judges’ gender or partisan ideology. We did find, in contrast, that they are substantially influenced by judges’ previous professional background: former criminal defence lawyers are more likely to exclude than former non-criminal practitioners, who are in turn more likely to exclude than former prosecutors. We also found significant regional disparities, with judges in Quebec, British Columbia, Newfoundland, and Nova Scotia more likely to exclude than Alberta judges. The study also revealed that judges are more likely to admit evidence when trying more serious charges and less likely to do so when trying female defendants.

Keywords: empirical legal studies, adjudication, attitudinal model, law and courts, exclusionary rule, charter of rights

Suggested Citation

Penney, Steven and Yahya, Moin A., Section 24(2) in the Trial Courts: An Empirical Analysis of the Legal and Non-legal Determinants of Excluding Unconstitutionally Obtained Evidence in Canada (May 20, 2021). Osgoode Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3850262

Steven Penney (Contact Author)

University of Alberta - Faculty of Law ( email )

Law Centre
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

HOME PAGE: http://www.ualberta.ca/law/faculty-and-research/profiles/steven-penney

Moin A. Yahya

University of Alberta - Faculty of Law ( email )

Edmonton, Alberta T6G 2H5
Canada
780-492-4445 (Phone)
780-492-4924 (Fax)

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