In Canada, the rules for excluding evidence are primarily governed by the Canadian Charter of Rights and Freedoms and the common law. The exclusion of evidence is an important issue in criminal trials because evidence that is obtained in violation of an accused person’s constitutional rights may not be admissible in court.
The most common way to exclude evidence is through a Charter application. This involves a motion brought by the accused to exclude evidence that was obtained in violation of their rights under the Charter. The Charter sets out several fundamental rights, including the right to be free from unreasonable search and seizure, the right to remain silent, and the right to counsel.
If a court finds that evidence was obtained in violation of the Charter, it can exclude the evidence under s. 24(2) of the Charter. Under s. 24(2), evidence can be excluded if it would bring the administration of justice into disrepute, considering factors such as the seriousness of the Charter violation, the impact of the violation on the Charter-protected interests of the accused, and society’s interest in the adjudication of the case on its merits. This test is known as the “Grant test,” after the Supreme Court of Canada decision in R. v. Grant.
In addition to Charter applications, evidence may also be excluded if its probative value is outweighed by its prejudicial effect. This is a discretionary decision for the trial judge to make, and it is based on the specific facts and circumstances of each case.
Overall, the exclusion of evidence in Canada is a complex area of law that requires a thorough understanding of the Charter, the common law, and the specific facts of each case. It is important to seek the advice of a criminal defence lawyer if you are facing criminal charges and have concerns about the admissibility of evidence in your case.
The lawyers at Lockyer Zaduk Zeeh have a wealth of experience dealing with Charter issues. This includes unlawful arrests; searches of homes, vehicles, and wiretap investigations; and right to counsel issues. If you or someone you know has been charged because of a search warrant, please give us a call at 416-613-0416 to schedule a consultation.