THE REVISED CANADIAN TEST FOR THE EXCLUSION OF UNCONSTITUTIONALLY OBTAINED EVIDENCE

Abstract

Although South African courts have relied on Canadian law to interpret section 35(5) of the Constitution, they have also been hesitant to do so, since the previous Canadian approach clearly had its shortcomings. The Canadian Supreme Court's decision in R v Grant has now addressed these problems by putting forward an approach that is less rigid and more simplistic to apply. The new test reflects properly the main motivation behind a constitutionally entrenched exclusionary rule and thereby provides a sound theoretical basis for the application of such a rule. Because their new approach has brought the South African and Canadian tests closer together, more stands to be gained from future Canadian decisions in this regard. Perhaps the most important aspect of the Grant decision is that it shows why it is unnecessary to treat the two legs of the South African rule as separate tests. There should in principle be only one test: namely whether the admission of unconstitutionally obtained evidence would be detrimental to the administration of justice.