Can evidence gathered in a foreign jurisdiction be excluded from trial in Canada?

British Columbia, Canada


The following excerpt is from U.S.A. v. Wakeling, 2011 BCSC 165 (CanLII):

Harrer concerned the question of whether evidence gathered in a foreign jurisdiction, consistent with the laws of that jurisdiction but contrary to s. 10 of the Charter, should be excluded from trial in Canada. McLachlin J., writing for herself and Major J., noted the importance of courts not hamstringing law enforcement at paragraph 55: ... I wish to add that there are important reasons why Canadian courts should not automatically reject evidence taken abroad because foreign police forces have not met every requirement that might have prevailed in Canada. While certain basic standards are common to free and democratic societies, particular procedural requirements may vary. It is reasonable to expect of police forces abroad that they meet basic standards of fairness. It is not reasonable to expect them to comply with details of Canadian law. To insist on conformity to Canadian law would be to insist on external application of the Charter in preference to the local law. It would render prosecution of offences with international aspects difficult if not impossible. And it would undermine the ethic of reciprocity which underlies international efforts to control trans-border crime: Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536, at p. 551, per La Forest J. We live in an era when people, goods and information pass from country to country with great rapidity. Law enforcement authorities, if they are to do their job, must apprehend people and intercept goods and communications wherever they may be found. Often they find themselves working with officers in foreign jurisdictions; often they are merely the recipients of information gathered independently elsewhere. The result is evidence gathered by rules which may differ from Canadian rules. We need to accommodate the reality that different countries apply different rules to evidence gathering, rules which must be respected in some measure if we are to retain the ability to prosecute those whose crime and travel take them beyond our borders. To insist on exact compliance with Canadian rules would be to insist universally on Canadian standards of procedures which, in the real world, may seldom be attained -- an insistence which would make prosecution of many offences difficult, if not impossible.

Other Questions


Can an appellate court "reconsider" evidence presented at trial when there is a reasoned belief that the trial judge must have forgotten or misconceived the evidence? (British Columbia, Canada)
What is the difference between "new evidence" and “new evidence” at trial? (British Columbia, Canada)
If a party can have challenged a foreign court’s procedural defects in that foreign proceeding, can that party collaterally attack the foreign procedural process before the Canadian court at the enforcement stage? (British Columbia, Canada)
Is the entirety of s. 32(1) of the Canadian Criminal Code applicable if evidence was gathered in Canada? (British Columbia, Canada)
Does a domestic court have jurisdiction to consider fraud in the foreign jurisdiction? (British Columbia, Canada)
Can an opinion or opinion be excluded from evidence at trial? (British Columbia, Canada)
Is a trial judge bound to comment upon all the evidence at trial to support an expert testimony? (British Columbia, Canada)
What is the current state of the law in Canada under s. 12 of the Canada-Canada Border Security Act? (British Columbia, Canada)
What is the test for excluding evidence from the evidence of a breach of section 8 of the Charter? (British Columbia, Canada)
How has evidence been excluded from a Charter violation trial where the Charter violation was a serious one? (British Columbia, Canada)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.