As a criminal lawyer, I often have locals in the Port Elgin, Kincardine and Owen Sound areas question the legality of evidence against them. The simple answer would explain that there are specific rules the Police must follow when acquiring evidence. Any evidence acquired contrary to these rules may be described as wrongfully acquired evidence.
So, what exactly is “wrongfully acquired evidence”? Wrongfully acquired evidence is any evidence, whether physical or verbal, that was obtained contrary to an individual’s rights. In Canada, every individual is afforded various rights under the Charter of Rights and Freedoms. In criminal law, two of the most significant rights under the Charter, are sections 8 and 9. Section 8 provides every individual the right to be secure against unreasonable search or seizure. Section 9 of the Charter provides every individual the right not to be arbitrarily detained or imprisoned.
For example, in applying these rights to the concept of wrongfully obtained evidence, if an individual was not breaking any laws but was pulled over by the police and their vehicle was subsequently searched, this may be considered unreasonable as the police officer did not have grounds to pull the accused over in the first place. So, the traffic stop violated the individual’s rights under Section 9 and the subsequent search violated their rights under Section 8. Because of the Charter violations, any evidence acquired through the unreasonable stop and search may be considered wrongfully acquired.
It is important to note that the Charter is not absolute. Section 1 of the Charter allows for breaches if the breach is justifiable in a free and democratic society. In essence, this allows the Court to override one’s Charter rights if the alleged breach is in the interests of justice. With that being said, in determining whether evidence was obtained wrongfully, the court must balance the interests of putting all relevant evidence before the judge against the importance of preserving the rights of the accused and the reputation of the criminal justice system.
If you’ve been charged because of wrongfully acquired evidence, give us a call.
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