CHAPTER 3

EVIDENCE

 

3.3 Admissibility of Evidence

3.3.2 Evidence obtained under conditions that bring the administration of justice into disrepute

Evidence may have been obtained in violation of laws or human rights charters. Such evidence could include electronic surveillance, recording without permission or unreasonable searches or seizures. At common law, evidence obtained through illicit or irregular devices is generally admissible.⁴⁴³ In Quebec, the Civil Code does not exclude illegal evidence as such but only "evidence obtained under such circumstances that fundamental rights and freedom are breached and its use would tend to bring the administration of justice into disrepute" (art. 2858)

Section 24 of the Charter, which applies to "any court," does not exclude evidence obtained illegally or in contravention of an ordinary statute. It excludes evidence obtained in a manner that infringed or denied a Charter right or freedom, if the admission of it would bring the administration of justice into disrepute.

Does s. 24 apply to all administrative tribunals? On the one hand, the Supreme Court has held that a grievance arbitration tribunal is a competent court within the meaning of s. 24.⁴⁴⁴ On the other hand, by reason of its structure and functioning, the language of its constituting statute, its composition, and the fact that it lacks the power to subpoena witnesses and is not required to base its decisions exclusively on the evidence adduced at the hearing but may also consider other available information, the Court has held that the National Parole Board is not such a court.⁴⁴⁵ Where, between these two markers, does this place the Board of Referees?

We find it difficult to imagine that an administrative tribunal could admit documentary or testimonial evidence obtained in violation of the Charter if a court could not do so. The Charter applies to administrative tribunals and administrative tribunals must apply it. In our opinion, it applies to issues of admissibility. Although the criteria established by the Supreme Court to determine whether the admission of evidence would bring the administration of justice into disrepute are complex, this in itself is no reason to exempt administrative tribunals from applying them.⁴⁴⁶ Situations placing this issue before a Board of Referees would of course be rare, but not impossible.

 

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