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Canadian Review of American Studies Volume 23, Number 4, 1993, pp. 1-39 The Design and Redesign of the Rule of Exclusion: Search-and-seizure Law in the United States and Canada Priscilla H. Machado Introduction Balancing the rights of the accused with government's concern for security and the rights of the whole is a timeless challenge which all democratic societies face. This struggle to achieve a proper balance within citizenpolice confrontations is evident in the changes in search-and-seizure law in Canada and the United States. Since the early 1980s,both countries have significantly altered their posture in citizen-police encounters. Canadians, in 1982, through SECilONS8 and 24 of the Charter of Rights and Freedoms, began to shy away from the British tradition of the treatment of evidence, which is essentially always to admit it into court regardless of how it was obtained. Americans began to move awayfrom a strict exclusionaryrule, as suggested by Supreme Court decisions such as Massachusetts v. Sheppard (1984) and United States v. Leon (1984), which admit illegally seized evidence only if acquired under a "reasonable good faith error.'' Current American search-and-seizure law now reflects the policy considerations of pre-Charter Canada, whereas Canadians have leaned toward adopting the earlier American standards for what constitutes a legal search. While the United States has become disenchanted with the exclusionaryrule, Canada, somewhat ironically, has taken to emulating many American interpretations of the rights of defendants with regard to illegallyobtained evidence.These alterations in American and Canadian search-and-seizure law comprise 2 Canadian Review of American Studies more than a shift in policy; they reveal changes in the basic premises of their respective criminal justice systems. This paper explores the evolution of American and Canadian search-andseizure law, focusing particularly on remedies. It concludes with a discussion of why search-and-seizure policy in both countries has changed yet is so muddled, and offers the reader several explanations to account for such unsatisfying doctrine. The Common-Law Tradition of Search and Seizure To fully appreciate the evolution in Canadian and American search-andseizure policy, it is important to understand the law as it originated in Great Britain. With regard to tainted evidence, the British have a long tradition of favouring nonexclusionary remedies over judicially imposed sanctions. The primary function of the judiciary is to seek out the truth, not to curb the abuses of power with procedural safeguards. In the British legal system, unlawfully obtained evidence is admissible at common law.As early asR. v. Warickshall (1783), English courts have found irrelevant the manner in which evidence is seized. The courts do not omit evidence, as they care only about its reliability. "It matter[ s] not how you get it [evidence], if you steal it even, it would be admissible" (R. v. Latham 1861, 501). Tue judge cares primarily about conducting a fair trial, not the character of evidence. Therefore, judges' rulings on evidence protect the accused from an unjust conviction, rather than discipline the police. All reliable evidence is admissible because it does not impede the judiciary's function. In England, the remedy for all forms of police misconduct lies outside the initial trial. Since a search and seizure of physical goods typically includes a violation of property rights, the common-law remedy of trespass became readily and logically acceptable. A suit of trespass permits the court to use reliable evidence while also providing a remedy to those whose rights were abused. Beginning in 1955, the nonjusticiability of the exclusion remedy became less certain.Kuruma v. R. (1955), an appeal from Kenya involving seizure of illegal ammunition and weapons by officers not empowered to do so, raised Priscilla H. Machado I 3 the issue of excludingreliable evidence if it would work unfairly against the accused. Here, British judges were allowed discretionary power to exclude reliable evidence on the grounds of fairness. The rationale resembled the admission in Warickshall: to avoid unfairness at trial. Judges exercised discretion when no rule could consider all the variables (Pattenden 1982,37). Although judges could follow the Kuruma fairness test rather than the Warickshall reliability test, they rarely excluded reliable evidence.1 Nevertheless, in 1979,R. v...


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