Purser Law Blog

What Happens if the Police Violate My Rights?

If the police are investigating you for a crime, they must respect your rights under the Canadian Charter of Rights and Freedoms. If they don’t respect your rights, then a judge may decide that the evidence they gathered against you can’t be used to prove you guilty. In making this decision, the judge will think about three things: (1) the seriousness of the Charter breach (2) how badly your rights were impacted by the police’s actions and (3) whether the public would believe the process was unfair because of the way the police acted. If you believe your rights were violated by the police during a criminal investigation, it is important to talk to an experienced Edmonton criminal lawyer who is knowledgeable in this area.  

1. The Seriousness of the Charter Breach

When a judge is considering this factor, there are many relevant details. These details include the reason why the police violated your rights: was it negligence, an accident or what the police intended to do all along? The judge may also consider whether the laws they were following were clear or unclear and how long the law has been in effect. A police officer’s actions will be especially serious if they violate your rights repeatedly, intentionally or violate multiple Charter rights during one interaction.  The more severe or deliberate the Charter violation, the greater the need for the courts to distance themselves from that conduct. This is to both preserve public confidence in the justice system and to serve as an incentive for future officers to comply with the law, although it is not strictly intended to “punish the police.” Other pressing circumstances, such as the need to prevent evidence from disappearing, may serve to lessen the seriousness of the Charter breach.  

1. How Badly Your Rights Were Impacted by the Police’s Actions 

Under this factor, the judge must think about how the police’s action affected you. Even when the police violate one of your rights, the impact is not necessarily serious. For example, if the police put you in a cell and don’t tell you that you’re allowed to speak to a lawyer, or give you the chance to speak with your lawyer, the impact will be very bad if you subsequently give a confession. However, if you aren’t given the opportunity to speak to your lawyer but do not say anything that could prove you committed the crime, the impact to you is not as severe. If the judge finds that the violation of your rights had a big impact, they are more likely to decide that the evidence the police gathered should not be used against you.  

1. Whether the Public would Believe the Process was Unfair Because of the Way the Police Acted. 

As Canadians, we all believe the justice system is fair. However, if the prosecutor can only prove that you are guilty because the police violated your rights to find evidence, members of the public may view this as unjust. On the other hand, the evidence may be so strong and reliable that the public would think it is too important to disregard. Similarly, the charge may be too serious, and the public interest in having a trial too strong, to justify excluding all of the evidence against you, even where the first two factors weigh in favor of exclusion. In thinking about this factor, the judge must think about what is best for the justice system in the long run. 

Balancing the Three Factors 

Determining whether evidence should be excluded from your trial as a result of a violation of your Charter rights requires a balancing of the three factors discussed above. Ultimately, if the judge decides that evidence can’t be used against you, an acquittal may follow if the prosecutor cannot establish your guilt beyond a reasonable doubt with the evidence that remains. Unfortunately, there is no magic formula that will tell you what a future judge will decide in your case. However, an experienced criminal defence lawyer will have a feel for how the three different factors explained above are viewed in their jurisdiction and in relation to different allegations of Charter breaches. If you or someone you know thinks that their Charter rights have been violated, contact Purser Law now for your free 30-minute consultation at 780-851-7435.