Profs. Steven Penney and Moin Yahya co-author new publication

Empirical study examines factors related to the decision to exclude illegally obtained evidence

Sarah Kent - 06 December 2021

Professors Steven Penney and Moin Yahya of the University of Alberta Faculty of Law have co-authored a new paper on the legal and non-legal factors that influence judges’ decisions to admit or exclude illegally obtained evidence.

“Section 24(2) in the Trial Courts: An Empirical Analysis of the Legal and Non-legal Determinants of Excluding Unconstitutionally Obtained Evidence in Canada” appears in the latest issue of the Osgoode Hall Law Journal.

For their study, Penney and Yahya analyzed more than 1,400 trial decisions between 2013 and 2018.

The quantitative analysis is the first to “use inferential statistical methods to isolate variables correlating with the exclusionary decision at trial” and the first to examine both legal and non-legal factors.

While Penney and Yahya conclude that judges’ gender and political affiliations do not play a significant factor in decision-making, they did find that a judge’s professional background and jurisdiction have some influence.

“Former criminal defence lawyers are more likely to exclude evidence than former non-criminal practitioners, who are in turn more likely to exclude evidence than former prosecutors,” they write.

Penney and Yahya found that the data revealed regional disparities, “with judges in Quebec, British Columbia, Newfoundland, and Nova Scotia more likely to exclude evidence than Alberta judges.”