It is often a mistake that many people make to think that if the police find something, then it will be used in court against the accused. This is not the Canadian justice system. Such evidence may be suppressed even if it is otherwise admissible to prove guilt in a trial, if it was obtained in violation of law or a person’s rights. This is called “exclusion” or “suppression” of evidence and is an important part of the decision of a criminal case.
It is crucial for people charged to know how and why evidence is being excluded, as a successful challenge may alter the course of a case.
What Is a Motion to Exclude Evidence?
Evidence exclusion is a formal motion to exclude evidence that was improperly obtained by the evidence-gathering process. This typically occurs when the police are engaged in a search, seizure, or interrogation but do so in a way that infringes on the Canadian Charter of Rights and Freedoms.
The exclusion of evidence is not for the purpose of concealing the truth, or for the purpose of letting the guilty go free simply for the fact that he is guilty. It was designed to hold investigators accountable and to ensure a fair and just application of the justice system. Police would have the right to break the law and to use whatever they can find; in practice, little would be meant by individual rights.
The Process of Challenging Evidence
There are usually a series of steps in a court system that challenging evidence takes:
Identifying the issue-The defence lawyer examines the conduct of the evidence to identify any evidence of any process or constitutional defects in the search, seizure, or questioning.
Drafting the motion- A written document is prepared that summarizes the facts of the case, the specific legal rules that were allegedly violated, and an argument for exclusion.
Gathering supporting material- This may include witness statements, photos, prior case law, and other evidence that bolsters the argument.
Filing and serving the motion- The motion is presented to the court, and copies are given to the prosecution.
The hearing- Both parties make arguments to a judge who will determine if a breach took place and, if so, the extent of the breach.
The ruling- If the judge agrees that the evidence was improperly obtained, then the evidence is excluded from trial.
The discovery of other evidence that only comes as a result of the excluded evidence may also be suppressed, referred to as the “fruit of the poisonous tree.
Rather than a complete list, common grounds for excluding evidence are outlined below.
Common Grounds for Excluding Evidence
Failure to have reasonable cause for a search. Police must have good reason and articulate a basis for connecting a person to a crime in order to search a person without a warrant. A search conducted under an “unconfirmed tip” or under a vague suspicion may infringe on section 8 of the Charter, which prohibits unreasonable search and seizure.
Faulty warrants and overly broad warrants- Any warrant must be specific with regard to the police’s search authority and the items they may take. When the scope of a warrant is too general to cover an entire building or neighbourhood and/or officers conduct searches beyond what is authorized, anything outside of the scope may be excluded.
Forced or coerced speech- Threats, deceptions, or the failure to inform a person that they have a right to counsel make confessions unreliable. A direct admission of guilt may be discredited for being an admission taken without respect to an individual’s rights.
A problem with the chain of custody: All physical evidence should be identifiable from the time it is found until it is introduced to the court. Reliability issues stemming from gaps in documentation, mishandling, or unauthorized access to evidence may arise to cast doubt on the integrity of such evidence, raising an issue for exclusion.
Other Charter violations- Violations of section 8 also may be significant. For instance, if one were denied the right to a lawyer under section 10(b), anything that was said since that time is barred.
How Courts Decide
If a judge determines that a Charter violation has taken place, they are left to determine which is the appropriate remedy: exclusion of evidence. The courts take into account the severity of the police actions, the effect of the violation on the rights of the accused, and the general public’s interest in maintaining public trust in the justice system. Minor or technical violations are unlikely to result in exclusion; serious or deliberate violations are likely to result in exclusion.
How long do these hearings last?
Exclusion hearing length will vary depending on the complexity of the case. Simple movements with just one question may be able to be solved in a couple of hours. Cases with a number of witnesses, expert evidence, and/or several alleged breaches require between one and two days, and very complex cases can take more than a week. These hearings are typically conducted in a more efficient manner when they are well-prepared in advance.
Why This Matters
The successful motion to exclude evidence can be a major turning point in a case. If a case collapses or becomes significantly weaker due to the loss of key evidence like a weapon, drugs, or a confession, the prosecution team will have to proceed without its benefit. Without such evidence (a weapon, drugs, or a confession), a case could lose some of its weight or even fail, and the prosecution team will have to try without it. This is why the manner in which evidence was gathered is often just as important as the evidence itself.
If you have been charged with a crime, you need to be aware of these protections and why it’s important to review the circumstances of an arrest, search, or interrogation. The rules are not just there for the evidence—the process in which it is acquired is just as significant!
