Getting evidence excluded can oftentimes make or break a case. Having a trained and highly skilled team of legal professionals that know when evidence can be excluded and know how to get said evidence excluded can make a world of difference in winning your case. But what does this mean and how can evidence be excluded?
Exclusion of Evidence Defined
Excluding evidence is when a piece of evidence, say for example a retrieved bag of narcotics found in an unlawful search, is no longer considered as part of the evidence that the crown can point towards to build their case against you.
Why Does Evidence Get Excluded?
Evidence can be excluded for a variety of reasons but oftentimes it has to do with the state infringing too far upon the rights of the accused to obtain said evidence.
For example, in the R v Lafrance, (2022) the Supreme Court deemed that Mr. Nigel Lafrance, a young Indigenous man accused of murder, was not adequately provided with his right to counsel and that he had been unlawfully psychologically detained, both violating his Charter Rights. This led to the Supreme Court excluding the confession that Mr. Lafrance provided at the police station following these Charter violations as the Supreme Court held there was both a temporal and causal connection between the breaches and the confession. This led to Mr. Lafrance’s confession being excluded from the evidentiary record, leaving a huge hole in the Crown’s case and overturning Mr. Lafrance’s previous conviction.
How Does Evidence Get Excluded?
Evidence gets excluded by enacting section 24(2) of the Charter of Rights and Freedoms.
S. 24(2) has two components, the threshold component, and the evaluative component.
The threshold component asks whether or not there is what is referred to as a sufficient nexus, or basically if there is enough of a connection, between a charter breach and the evidence that was collected. If the court recognizes this sufficient nexus, then the next step in getting evidence excluded is the evaluative component
The evaluative component asks three questions:
- How serious was the infringing conduct?
- How grave an impact did the infringing conduct have on an accused’s rights?
- How would the exclusion of the evidence impact society more broadly?
The first question attempts to place the charter-infringing conduct on a scale somewhere between a breach that was unintentional and with no malicious intent, like a detention that was well-intended but fell just short of the requisite grounds for detention as seen in R v Zacharias (2023), versus a breach that was deliberate and with malicious intent like an illegal strip search. More serious infringements will lend more heavily to the exclusion of evidence.
The second question asks how much the Charter infringing conduct actually impacted the accused. For example, in the aforementioned R v Lafrance, if police provided Lafrance properly with his Right to Counsel, then he may have known to exercise his right to not speak to police and would not have confessed to the alleged murder. This then had a serious impact on Mr. Lafrance’s rights. An infringement with a more serious impact will also lend more heavily to the exclusion of evidence.
Finally the last question asks what broader society would think about the exclusion of evidence. If it’s a minor technical breach of a very serious charge of say multiple counts of murder, then society broadly would be deemed to oppose the breach.
The court would have to weigh the three factors against one another, often the first two prongs against the third, and come to a conclusion on whether the evidence should be excluded.
What Are Some Challenges in Excluding Evidence?
Sometimes a piece of evidence that has already been introduced can get excluded after the fact for different reasons. In this scenario the trier of fact, which in 99% of cases is either a Judge or a Jury, despite them already acknowledging the piece of evidence, have to in their decision-making process remove the piece of evidence from their considerations. Because of human nature, this can often be difficult in practice however it is typically more effective in Judge-alone trials.
Getting Your Evidence Excluded
If you feel you’ve been wronged in the investigation into your accusations, you need to call the fearless and well-trained lawyers of Collett Read. Having competent and dedicated advocates protect your rights and get unlawfully collected evidence thrown out is imperative in protecting your Charter Rights.
Do not hesitate to contact us for a confidential consultation through our contact page or call us at (905) 541-2228.
