In many criminal cases, the evidence gathered by police plays a central role in determining the outcome. However, not all evidence obtained during an investigation is automatically admissible in court. When police violate an individual’s rights under the Canadian Charter of Rights and Freedoms, the defence may ask the court to exclude that evidence from trial.
Evidence exclusion is one of the most important remedies available in Canadian criminal law. In some cases, the exclusion of key evidence can significantly affect the Crown’s ability to proceed with a prosecution, and understanding how this process works can help individuals make sense of a complex and often misunderstood part of the justice system.
What Is Evidence Exclusion?
Evidence exclusion refers to a court’s decision to prevent certain evidence from being used against an accused person at trial.
This issue most commonly arises when the defence argues that police obtained evidence through a Charter breach. Examples may include:
- An unlawful search of a home, vehicle, or electronic device
- An arrest made without proper legal grounds
- A detention that violates Charter protections
- A failure to provide access to legal counsel
- Improper questioning that infringes upon an individual’s rights
When a Charter breach is established, the court must decide whether admitting the evidence would bring the administration of justice into disrepute. This determination is rarely straightforward, and it often requires a detailed review of exactly what happened during the investigation.
Section 24(2) of the Charter
The authority to exclude evidence comes from section 24(2) of the Charter.
Under this provision, evidence obtained in a manner that infringed Charter rights may be excluded if its admission would undermine public confidence in the justice system.
Courts do not automatically exclude evidence whenever a Charter violation occurs. Instead, judges consider several factors, including:
- The seriousness of the Charter breach
- The impact of the violation on the accused’s rights
- Society’s interest in having the case decided on its merits
The court’s role is to balance the importance of protecting constitutional rights against the public interest in prosecuting criminal offences, and this balancing exercise is at the heart of nearly every evidence exclusion application.
Common Situations Where Evidence Exclusion Arises
Search and seizure cases frequently involve evidence exclusion applications.
For example, if police search a residence without lawful authority or exceed the scope of a warrant, the defence may argue that any evidence discovered should be excluded. Similar issues can arise in vehicle searches, cellphone searches, and investigations involving electronic devices.
Evidence exclusion may also become relevant when police detain or arrest an individual without sufficient grounds or fail to provide a meaningful opportunity to speak with counsel.
Many of these issues overlap with broader Charter litigation, and they come up across a wide range of criminal matters. Our practice areas page outlines the types of cases our firm regularly handles where these constitutional issues tend to arise.
Why Evidence Exclusion Matters
The exclusion of evidence can have a significant impact on a criminal case.
In some situations, the excluded evidence forms the foundation of the Crown’s case. Without it, the prosecution may face substantial challenges in proving the allegations beyond a reasonable doubt.
Even where the case continues, a successful exclusion application can alter the evidence available at trial and influence the overall defence strategy in meaningful ways.
Because these applications often involve detailed legal arguments and extensive review of police conduct, careful preparation is critical. Reviewing how similar applications have unfolded in past cases can offer useful context for clients trying to understand their own situation. Our case results page highlights several examples of matters our firm has handled, some of which have also been covered in the media.
Building an Evidence Exclusion Application
A defence lawyer will typically begin by reviewing disclosure, police notes, search warrants, witness statements, body worn camera footage, and other investigative materials.
The goal is to determine whether police actions complied with Charter requirements and whether any breaches occurred during the investigation.
Where appropriate, the defence may bring a formal Charter application seeking the exclusion of evidence. This often involves legal research, cross examination of police officers, and detailed submissions before the court.
Get Legal Representation
Potential Charter issues should be identified as early as possible. The sooner defence counsel can review the circumstances surrounding a search, detention, arrest, or investigation, the better positioned they are to assess whether an evidence exclusion application may be available.
If you have been charged with a criminal offence in British Columbia and believe your rights may have been violated during a police investigation, obtaining legal advice early can help you understand your options and determine whether a Charter based defence may apply to your case. Contact us today or call 604-590-5600.
