For an example of circumstances where a lawful search was in breach of the defendant’s right not to be unreasonably searched, see R v Tim, 2022 SCC 12. Two unlawful searches, of the defendant and his car, were followed by a third, which was lawful but in breach of Mr Tim’s Charter rights, in particular the right to be secure against unreasonable search or seizure (clause 8); bringing into play consideration of the remedy of inadmissibility in clause 24(2).
Here, the third search was in breach because of its close temporal and contextual association with the unlawful searches (at [80]).
This was different, on the facts, from a causal connection with the unlawful searches. For readers in New Zealand, s 30 of the Evidence Act 2006 is the governing provision on admissibility of improperly obtained evidence in criminal cases. It sets out law which is not hugely different in its results from Canadian law on the point. Subsection (5) defines when evidence is improperly obtained, and its use of the words “obtained” and “in consequence” raises the question of whether a causal connection between the impropriety and the finding of the evidence is required.
Our courts have recognised that causation is not always necessary, as for example where a confessional statement is obtained from the defendant but after that the procedural error occurs of failing to get the defendant to read it through and to make any corrections before signing it. The statement can be held to have been improperly obtained. See Denney v R [2017] NZCA 80 at [31].
