R. V. Stillman - Reasons of The Court

Reasons of The Court

The majority's reasons were given by Cory J.

The case turned on whether the inclusion of evidence affected trial fairness. Cory re-examined the purpose of the trial fairness step of the Collins test, stating that:

primary purpose ... is to prevent an accused person whose Charter rights have been infringed from being forced or conscripted to provide evidence in the form of statements or bodily samples for the benefit of the state. It is because the accused is compelled ... to participate in the creation or discover of self-incriminating evidence ... that the admission of that evidence would generally tend to render the trial unfair.

Cory proposed a two-step approach to determine the effect of the admission of evidence on trial fairness.

1. Can the evidence be classified as "conscriptive"? Namely, was the accused compelled to participate in the creation or discovery of the evidence?
2. If so, was the evidence "discoverable"? Namely, would the evidence have been discovered by an alternate non-conscriptive means?

If the evidence was shown to be conscriptive and would not have been discovered by a non-conscriptive means then the evidence must be excluded for trial fairness, and none of the other factors of the Collins test need to be examined.

On the first step, the question is whether "the accused was compelled to make a statement or provide a bodily substance in violation of the Charter." The evidence must not have existed in a usable form prior to the taking of evidence. A murder weapon found at the scene would be non-conscriptive but a piece of clothing worn by the suspect would be conscriptive. Conscriptive evidence also includes "derivative evidence", which is evidence that was only discovered through other conscripted evidence. Physical evidence found as a result of a conscriptive statement is an example of derivative evidence.

On the second step, the courts allow conscriptive evidence if it can be shown to be "discoverable".

the admission of conscriptive evidence will not render the trial unfair where the impugned evidence would have been discovered in the absence of the unlawful conscription of the accused. There are two principal bases upon which it could be demonstrated that the evidence would have been discovered. The first is where an independent source of the evidence exists. The second is where the discovery of the evidence was inevitable.