SEARCH AND SEIZURE PROBLEM - TWO APPROACHES - THE CANADIAN TORT REMEDY AND THE US EXCLUSIONARY RULE

• NCJ Number: 11282
• Journal: Journal of Police Science and Administration Volume: 1 Issue: 1 Dated: (1973) Pages: 36-49
• Author(s): J E SPIOTTO
• Date Published: 1973
• Length: 14 pages
• Sponsoring Agency: US Dept of Justice; US Dept of Justice NIJ Pub
• Corporate Author: Northwestern University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

COMPARISON OF THE CANADIAN PRACTICE OF A CIVIL SUIT TO RECOVER DAMAGES FOR VIOLATION OF CIVIL RIGHTS WITH THE AMERICAN REMEDY OF EXCLUDING EVIDENCE UNLAWFULLY TAKEN.

Abstract

THE UNITED STATES AND CANADA ARE BOTH COMMON LAW COUNTRIES WITH EQUAL REGARD FOR THE INDIVIDUAL'S RIGHT TO BE PROTECTED FROM UNREASONABLE INTRUSIONS BY POLICE. IN THE U.S., THE SUPREME COURT HAS ATTEMPTED TO CONTROL POLICE BEHAVIOR BY EXCLUDING EVIDENCE OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT. HOWEVER, AN EMPIRICAL STUDY IN CHICAGO OF MOTIONS TO SUPPRESS ILLEGALLY SEIZED EVIDENCE INDICATES THAT THE NUMBER OF MOTIONS HAS INCREASED. THIS WOULD SEEM TO DISPROVE THE THEORY THAT POLICE WOULD BE DETERRED BY THE EXCLUSIONARY RULE. CANADA, ON THE OTHER HAND, ADMITS ALL RELEVANT EVIDENCE, NO MATTER HOW OBTAINED. ADDITIONALLY, CANADIAN LAW PROVIDES FOR MORE GENERAL POWERS OF SEARCH THAN DOES AMERICAN. IF A CANADIAN CITIZEN FEELS HIS RIGHTS HAVE BEEN VIOLATED, HE MAY SUE THE POLICE OFFICER, WHO IS INDEMNIFIED BY THE GOVERNMENT. SUCH ACTIONS ARE RARE, AS ARE INTERNAL POLICE DISCIPLINARY ACTIONS. DESPITE THE DIFFERENCES BETWEEN CANADA AND THE UNITED STATES, THE CANADIAN EXPERIENCE DOES SHOW THAT THERE IS A VIABLE ALTERNATIVE TO THE CURRENT EXCLUSIONARY RULE.