This article is presented in five parts. The first part consists of this
introduction, which is followed by a discussion of the Canadian legal
position in part two. The cases of R v Collins1 and R v Stillman,2 as well as the
impact of these cases on the Canadian admissibility framework, will be
explored. In addition, the adapted fair trial requirement developed and
applied by the Ontario Court of Appeal in R v Grant,3 and the revised
admissibility framework recently introduced by the Supreme Court of
Canada in the appeal of R v Grant,4 will be analysed. Part three discusses the
jurisprudence of s 35(5) of South Africa’s Constitution. An alternative
admissibility framework is suggested in part four, followed by a short
conclusion in part five.
The Constitution of the Republic of South Africa, 1996,5 provides that
South African courts may, when interpreting the Bill of Rights, seek
guidance from comparable foreign law jurisdictions in order to give meaning
to its provisions.6 The South African Supreme Court of Appeal and the High Courts,7 as well as scholarly writers,8 have indicated that the provisions
contained in s 24(2) of the Canadian Charter of Rights and Freedoms9 and
s 35(5) of the Bill of Rights are strikingly similar.10 This could be one of the
reasons why the South African courts have opted to be guided by their
Canadian counterparts.11 The Canadian admissibility frameworks, established
to determine whether unconstitutionally obtained evidence should be
received or excluded, have for decades been the subject of rigorous scholarly
criticism. As a result thereof, and the subsequent reaction by the Ontario
Court of Appeal, the admissibility framework has recently been revised by
the Supreme Court of Canada. Given that s 35(5) of the South African
Constitution is modelled on s 24(2) of the Canadian Charter, the manner in
which the courts of that country have grappled with the interpretation of
s 24(2) is of particular importance to South Africa.12
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:tut/oai:encore.tut.ac.za:d1001167 |
| Date | January 2010 |
| Creators | Ally, D |
| Publisher | South African Journal List Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Text |
| Format | |
| Rights | South African Journal List Law |
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