Originally Posted by Iowa_Flames_Fan
I'm not familiar with the judge's specific findings here, but I do want to point out that your premise is flawed: in essence, you believe that wherever there is "conclusive evidence" of a person's guilt, that should be enough.
It's not. We're a nation of laws, and one of our expectations is that the Police, in doing their duty in enforcing the law also obey it themselves.
That means that sometimes conclusive evidence of a person's guilt will be excluded at trial--that's just how our system works, and it's a good system (it's not perfect, but it's better than just about anything else). And the test for whether evidence should be excluded can never be how conclusively it establishes someone's guilt. That's putting the cart before the horse.
I think your analysis here is clouded by your certainty of Rafferty's guilt; that's fine, because so is mine. So let's forget about him. Let's think of a hypothetical Canadian instead. Let's call him "trublmaker." (Note: everything described below has happened at some point in the history of Canadian criminal law, though not all of these things together, at least not as far as I know.)
Trublmaker is suspected of an offence, but there's no evidence yet. (we don't know if he's guilty or not; at this stage, that doesn't yet matter). The police arrive one morning at trublmaker's workplace, and without advising him of his rights they start questioning him, right in front of his co-workers.
Then, they cuff him, and frog-march him past his boss's office. He's so fired, but that's the least of his worries right now. They put him in a car and bring him down to the police station where they take all of his clothes away, apparently for forensic testing. They ask him for samples of hair and saliva, and dental impressions. When he refuses, they hold him down and pull out a clump of his hair. They pry his mouth open with handcuffs and forcibly take dental impressions from him, almost dislocating his jaw.
They leave him in a cold room with only a bench to sleep on for 6 hours before someone finally gives him a blanket. It smells like urine, but he's cold enough that he doesn't care. He blows his nose into a kleenex and discards it; this kleenex is later collected for DNA evidence, even though he didn't consent to give a sample.
It's another hour before the interrogation begins. At this point, someone finally thinks to advise trublmaker that he has the right to contact a lawyer, and that he can choose not to say anything, and that anything he DOES say can be given in evidence.
Trublmaker is interrogated, naked and cold, for five hours. During this time, the police lie to him, claiming they have evidence against him when in fact they don't have anything at all. They tell him that it would be better if he confessed; better for his mother, who's 85 years old and frail. They tell him that it would be better for his girlfriend. They even tell him that if he doesn't confess they will investigate his girlfriend for the crime.
Then, he is left alone for another 9 hours, still naked, still cold. It feels like a meat locker in his cell. It's now been 21 hours since he's had anything to eat, though the police did offer him water from time to time during the interrogation. Most people don't know what this sort of experience is like, but at this point, trublmaker begins to doubt himself. Could he be guilty? He doesn't think so. But everything seems so insane right now. He contemplates suicide.
Later, a person comes into his cell dressed as a priest. He offers to take trublmaker's confession. Trublmaker talks to him for a while, not realizing that this person is not a priest at all, but an undercover police officer.
Eventually, trublmaker makes a self-incriminatory statement. At trial, trublmaker finds that this statement is the key, and virtually the only, piece of evidence against him. In effect, the only issue at trial is whether the statement, and the other physical evidence collected from him, should be admitted as evidence against him.
Here's the question. Should that evidence be admitted? There are two possible scenarios:
1. Let's say trublmaker is guilty. Guilty as hell. He knows it, the cops know it, everyone knows it. Without that evidence, he'll walk--but he is guilty as sin.
2. On the other hand, let's say trublmaker is NOT guilty. He's innocent. It's all a misunderstanding. He has no idea why the cops were interested in him, and now REALLY wishes he'd kept his head and not made the statement that's being used against him.
Now ask yourself: does it matter if it's 1 or 2?
The answer is no. Trublmaker's guilt or innocence literally makes no difference at all at this stage. At the evidence stage the law literally does not know whether he's guilty, and it doesn't care, except to the extent that it presumes his innocence until he is found guilty.
Until then, all the law cares about is how the evidence was collected, and whether that evidence should be admissible against him. And that is quite proper, regardless of whether trublmaker did or didn't do it, and regardless of how inculpatory the specific evidence is.
Personally, I'm glad the evidence was excluded in this case. Here, Rafferty was found guilty. That's significant, because he was found guilty without the use of questionable evidence, which makes the verdict harder to attack on appeal. All including the evidence would do is to give him an argument on appeal that he might not otherwise have. This outcome is better for everyone.
But at the evidence stage the law doesn't--and can't--turn its mind to whether a guy is guilty or innocent. It merely assesses how the evidence was collected, whether this violated the Charter, and whether its admission would bring the administration of justice into disrepute.
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