Important Update to The Law of Evidence, 5th edition

On 17 July 2009, in the decisions in R. v. Grant and R. v. Harrison, the Supreme Court of Canada conducted a large scale revision of its section 24(2) jurisprudence. The mode of analysis for judging disrepute for the purposes of the section 24(2) exclusion that had previously been in use, the “Collins/Stillman framework,” was reconsidered. R. v. Stillman’s “Two-box” approach to admissibility, as well as the “fair trial” theory, have been rejected. A new three-step analysis has been adopted, which, among other things, (1) treats statements and bodily samples differently for the purposes of admission, (2) reduces the importance of discoverability, (3) renders the seriousness of the offence almost immaterial under sections 24(2) and (4), discontinues the past practice of asking the pro-admissibility–balancing question of whether exclusion will bring the administration of justice into disrepute, and replaces it with a consideration of the impact of exclusion on the public interest in the truth-seeking function of trials. As a result, large swaths of Chapter 9 of the 5th edition of The Law of Evidence are obsolete. The chapter has therefore been rewritten, by including the decision of R. v. Wittwer, into the “obtained in a manner” discussion, and by exploring the impact of Grant and Harrison on the discretion to exclude evidence to preserve the fairness of a trial, in the absence of a Charter violation.

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