The Design and Redesign of the Rule of Exclusion: Search-and-seizure Law in the United States and Canada

Abstract

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 citizen- police 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 Sections 8 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 away from a strict exclusionary rule, as suggested by Supreme Court decisions such as Massachusetts v. Sheppard (1984) and United States v. Leon (1984), which admit illegally seized evi- dence 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 exclusionary rule, Canada, somewhat ironically, has taken to emulating many American interpretations of the rights of defendants with regard to illegally obtained evidence. These alterations in American and Canadian search-and-seizure law comprise more than a shift in policy; they reveal changes in the basic premises of their respective criminal justice systems.