The Unprincipled Use of Originalism and Section 24(2) of the Charter

Abstract

Twenty years ago, the Supreme Court of Canada laid the foundation to the modern approach of the exclusion of evidence under s. 24(2) of the Charter in R. v. Collins. The author examines the treatment of this test by the Supreme Court in the subsequent cases of R. v. Burlingham and R. v. Stillman, with particular attention paid to the majority's rationale in Stillman for creating an "exclusionary rule" for conscriptive non-discoverable evidence. The author examines the critical debate surrounding Stillman, focusing on the argument that it was contrary to the "original intentions" of the drafters of the section. The author challenges this argument with four major assertions and then proceeds to examine recent attempts to reformulate the Stillman test. The author concludes that the rationale underlying the Stillman test was clearly and powerfully articulated. Any move to change the law must confront this rationale.