Rights Protection across Courts and Judges

• In Event: Judicial Decision Making in a Comparative Perspective

Abstract

One of the benefits of a democratic society is the protection of rights. And courts are an institution instrumental in this protection. Previous research has explored how the protection of rights varies across people and places. In this project we hold the institution type (provincial courts of appeal) and judicial selection methods (appointed by the federal government) constant, and attempt to determine how the rights protections differ and what factors are influencing the differences. In doing so we focus on the rights of criminal defendants and the exclusion of evidence.

In contrast to the United States, Canada does not have an automatic exclusionary rule as a starting point for evidence obtained by the police in violation of constitutional rules. Section 24(2) of Canada’s Charter of Rights and Freedoms states that judges should exclude evidence if its admission would “bring the administration of justice into disrepute.” This raises the question of what meets the bar of “disrepute” and allows for the possibility of differences across judges and courts.

Using data from provincial courts of appeal, our paper investigates whether judicial discretion to exclude evidence is mediated by such judicial characteristics as ideology, gender, and professional background. For example, do former prosecutors (Crown attorneys) exclude evidence at a different rate than judges with other backgrounds? The paper will also explore hierarchical relationships amongst courts—how and to what degree are provincial courts of appeal following guidance from the Supreme Court of Canada about how to apply the exclusionary rule in s.24(2)? And do rates of exclusion vary regionally? One might expect that the same level of court, with justices chosen by the same process and level of government, and subject to the same Supreme Court precedent, would provide the same levels of protection for the rights of criminal defendants. If a defendant arrested in British Columbia has an easier time protecting their rights than a defendant arrested for the same crime, under similar circumstances, in Alberta, we need to understand why.

Our findings, based on quantitative analysis of coded s.24(2) decisions, supplemented by qualitative examples from cases, will include comparisons with studies from the US, and will be placed in the broader context of judicial decision-making and the protection of rights.

Authors

• Lori J. Hausegger, Boise State University

• Troy Riddell, University of Guelph

• Danielle McNabb, Brock University