R. v. Stillman
Encyclopedia
R. v. Stillman [1997] 1 S.C.R. 607, was a leading decision of the Supreme Court of Canada
on section 24(2)
of the Constitution of Canada
which allowed for the exclusion of evidence that is obtained in a manner that infringes the Charter
. The two-step Stillman test was developed for determining whether the admission of evidence that was obtained through a breach of a Charter right would affect the fairness of the trial. The issue of trial fairness comes into play when applying the first step of the Collins test
to exclude evidence under section 24(2).
The case would later be replaced by the Supreme Court of Canada's decision in R. v. Grant
.
In a seven-to-two decision, the Court held that all the evidence collected was beyond the powers to search incident to arrest and that it was all "conscriptive" evidence and thus was in violation of section 8.
The case turned on whether the inclusion of evidence affected trial fairness. Cory re-examined the purpose of the trial fairness step of the Collins test, stating that:
Cory proposed a two-step approach to determine the effect of the admission of evidence on trial fairness.
If the evidence was shown to be conscriptive and would not have been discovered by a non-conscriptive means then the evidence must be excluded for trial fairness, and none of the other factors of the Collins test need to be examined.
On the first step, the question is whether "the accused was compelled to make a statement or provide a bodily substance in violation of the Charter." The evidence must not have existed in a usable form prior to the taking of evidence. A murder weapon found at the scene would be non-conscriptive but a piece of clothing worn by the suspect would be conscriptive. Conscriptive evidence also includes "derivative evidence", which is evidence that was only discovered through other conscripted evidence. Physical evidence found as a result of a conscriptive statement is an example of derivative evidence.
On the second step, the courts allow conscriptive evidence if it can be shown to be "discoverable".
McLachlin first noted that the taking of bodily samples is a matter of section 8 of the Charter rather than section 7. The protection of section 7 against self-incrimination only extends to testimonial and derivative evidence but not physical evidence. To extend the section farther would go beyond the intended limits in both Canada and other comparable justice systems around the world.
McLachlin agreed with the majority that the taking of hair samples, buccal swab
s, and dental impressions were serious violations under section 8. However, the collection of the tissue was not, as the tissue had been abandoned and it was not derivative evidence. Though the samples were created as a result of detention, the bodily state that they represent was not created by detention and exist outside of the detention.
Section 24(2), McLachlin stated, requires balancing of all the circumstances of the case with the effect of admitting the evidence on the reputation of the system. The three set of factors in R. v. Collins are only convenient groupings of these circumstances that may be useful. So long as the effect of the admission of evidence on the system is balanced against the effect of the exclusion then the analysis is complete.
McLachlin rejected Cory's ruling that all evidence which affects trial fairness must be excluded. Such a rule is against the spirit of section 24(2) which intends to balance the alternate effects upon the repute of the system. It also mistakenly equates non-consensual participation with trial fairness. Lastly, it suggests that any amount of trial unfairness automatically outweighs any other possible factors that may come into play.
On the facts, McLachlin held that the lower courts properly weighed the factors and that they were correct in admitting the evidence.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on section 24(2)
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
of the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
which allowed for the exclusion of evidence that is obtained in a manner that infringes the Charter
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The two-step Stillman test was developed for determining whether the admission of evidence that was obtained through a breach of a Charter right would affect the fairness of the trial. The issue of trial fairness comes into play when applying the first step of the Collins test
R. v. Collins
R. v. Collins [1987] 1 S.C.R. 265 is a leading decision of the Supreme Court of Canada on section 8 and was a leading case on section 24 of the Constitution Act, 1982 which allowed for the exclusion of evidence upon infringing the Charter...
to exclude evidence under section 24(2).
The case would later be replaced by the Supreme Court of Canada's decision in R. v. Grant
R. v. Grant
R. v. Grant is a leading decision of the Supreme Court of Canada on section 9, section 10, and section 24 of the Canadian Charter of Rights and Freedoms. The Court created a number of factors to consider when determining whether a person had been detained for the purpose of sections 9 and 10 of...
.
Background
In 1991, a young New Brunswick girl was found raped and murdered. A 17-year-old suspect, William Stillman, was arrested for the murder. Stillman's lawyer told the police that he did not consent to the taking of any bodily samples. Nevertheless, the police took an impression of his teeth, a hair sample, and saliva sample. As well, they took a paper tissue used by Stillman who had thrown it into the garbage while in custody.In a seven-to-two decision, the Court held that all the evidence collected was beyond the powers to search incident to arrest and that it was all "conscriptive" evidence and thus was in violation of section 8.
Reasons of the court
The majority's reasons were given by Cory J.The case turned on whether the inclusion of evidence affected trial fairness. Cory re-examined the purpose of the trial fairness step of the Collins test, stating that:
- [its] primary purpose ... is to prevent an accused person whose Charter rights have been infringed from being forced or conscripted to provide evidence in the form of statements or bodily samples for the benefit of the state. It is because the accused is compelled ... to participate in the creation or discover of self-incriminating evidence ... that the admission of that evidence would generally tend to render the trial unfair.
Cory proposed a two-step approach to determine the effect of the admission of evidence on trial fairness.
- Can the evidence be classified as "conscriptive"? Namely, was the accused compelled to participate in the creation or discovery of the evidence?
- If so, was the evidence "discoverable"? Namely, would the evidence have been discovered by an alternate non-conscriptive means?
If the evidence was shown to be conscriptive and would not have been discovered by a non-conscriptive means then the evidence must be excluded for trial fairness, and none of the other factors of the Collins test need to be examined.
On the first step, the question is whether "the accused was compelled to make a statement or provide a bodily substance in violation of the Charter." The evidence must not have existed in a usable form prior to the taking of evidence. A murder weapon found at the scene would be non-conscriptive but a piece of clothing worn by the suspect would be conscriptive. Conscriptive evidence also includes "derivative evidence", which is evidence that was only discovered through other conscripted evidence. Physical evidence found as a result of a conscriptive statement is an example of derivative evidence.
On the second step, the courts allow conscriptive evidence if it can be shown to be "discoverable".
- the admission of conscriptive evidence will not render the trial unfair where the impugned evidence would have been discovered in the absence of the unlawful conscription of the accused. There are two principal bases upon which it could be demonstrated that the evidence would have been discovered. The first is where an independent source of the evidence exists. The second is where the discovery of the evidence was inevitable.
Dissent
McLachlin, L'Heureux-Dubé, and Gothier JJ. each gave their own dissenting opinions.McLachlin first noted that the taking of bodily samples is a matter of section 8 of the Charter rather than section 7. The protection of section 7 against self-incrimination only extends to testimonial and derivative evidence but not physical evidence. To extend the section farther would go beyond the intended limits in both Canada and other comparable justice systems around the world.
McLachlin agreed with the majority that the taking of hair samples, buccal swab
Buccal swab
A buccal swab is a way to collect DNA from the cells on the inside of a person's cheek. Buccal swabs are a relatively non-invasive way to collect DNA samples for testing. Buccal means cheek or mouth....
s, and dental impressions were serious violations under section 8. However, the collection of the tissue was not, as the tissue had been abandoned and it was not derivative evidence. Though the samples were created as a result of detention, the bodily state that they represent was not created by detention and exist outside of the detention.
Section 24(2), McLachlin stated, requires balancing of all the circumstances of the case with the effect of admitting the evidence on the reputation of the system. The three set of factors in R. v. Collins are only convenient groupings of these circumstances that may be useful. So long as the effect of the admission of evidence on the system is balanced against the effect of the exclusion then the analysis is complete.
McLachlin rejected Cory's ruling that all evidence which affects trial fairness must be excluded. Such a rule is against the spirit of section 24(2) which intends to balance the alternate effects upon the repute of the system. It also mistakenly equates non-consensual participation with trial fairness. Lastly, it suggests that any amount of trial unfairness automatically outweighs any other possible factors that may come into play.
On the facts, McLachlin held that the lower courts properly weighed the factors and that they were correct in admitting the evidence.
Subsequent Decisions
In 2009, the Supreme Court of Canada found that the analysis of conscripted versus non-conscripted evidence was leading to inconsistent results in analyzing s. 24(2), and created a new test in R. v. GrantR. v. Grant
R. v. Grant is a leading decision of the Supreme Court of Canada on section 9, section 10, and section 24 of the Canadian Charter of Rights and Freedoms. The Court created a number of factors to consider when determining whether a person had been detained for the purpose of sections 9 and 10 of...