NCJ Number
102103
Journal
Journal of Criminal Law and Criminology Volume: 76 Issue: 3 Dated: (Fall 1985) Pages: 608-665
Date Published
1985
Length
58 pages
Annotation
This article reviews the development of criminal process constitutional rights in the United States and Canada. It discusses use of the exclusionary rule in the two countries to protect those rights, the pros and cons of the exclusionary rule, and other remedies for constitutional rights violations.
Abstract
American and Canadian constitutional developments have produced differing concepts of federalism, court structures, authority over criminal law, and remedies for violating constitutional rights. The United States has relied on statutes and the judicially developed exclusionary rule to protect constitutional rights. Canada's constitution, on the other hand, explicitly provides for evidence exclusion as an enforcement mechanism. Alternatives to the exclusionary rule -- torts, injunctions, and criminal sanctions -- have been used extensively in the United States but are usually criticized for not being a deterrent. They are advantageous, however, in providing direct and proportional responses to the constitutional violation. In Canada, these types of remedies are conjunctively provided in the constitution. Although Canada's reliance upon American jurisprudence is limited by historic, legal, and societal factors, Canada could accept many U.S. methods of constitutional protection, such as mandatory injunctive relief and a criminal sanction. 351 footnotes.