Quand la requête en exclusion de la preuve doit être présentée

Mohammadi c. R., 2006 QCCA 930 (CanLII)

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[50]           The Ontario Court of Appeal held in R. v. Kutynec, a case in which the trial on a summary conviction offence proceeded before a judge alone, that motions of this nature must be presented before the evidence that is sought to be excluded is heard. As Finlayson, J.A. observed on behalf of the court in Kutynec:

Prior to the proclamation of the Charter, no one conversant with the rules controlling the conduct of criminal trials would have suggested that an objection to the admissibility of evidence tendered by the Crown could routinely be initiated after the case for the Crown was closed. It is self-evident that objections to admissibility of evidence must be made before or when the evidence is proffered.

[51]           The rationale for this principle was well‑explained by Borins, D.C.J., sitting as a summary conviction appeal judge in the same case that led to the reasons of Finlayson, J.A.:

There are additional reasons which favour the determination of s. 24 issues through the use of a pre‑trial motion. Experience has shown that most s. 24 applications are based on alleged improprieties on the part of the police in relation to rights guaranteed by ss. 8, 9, 10(a), (b), and 11(a). The pre-trial motion eliminates from the trial disputes over police conduct not relevant to the question of guilt. It avoids the possibility of having to abort a trial because the jury has been exposed to unconstitutional evidence. It avoids the expense of a useless trial in cases where exclusion of evidence under s. 24(2) makes it impossible for the prosecution to prove an essential element of the offence. By giving the prosecutor advance notice of the defendant's contention, the pre‑trial motion enables the prosecution to prepare its case on the Charter motion and to have its witnesses available. The pre-trial motion facilitates prosecution and defence preparation for trial by giving them advance knowledge of the evidentiary status of the evidence which the defendant is attempting to exclude. In general, the requirement of the pre‑trial motion places a premium on effective pre‑trial preparation by forcing a defence lawyer to consider Charterissues well in advance of the trial date.

[52]           The rigidity of that approach has been subsequently tempered to a certain extent in the case‑law, as the judgments of this Court in R. v. Godbout, R. v. Tsiris and R. v. Timm illustrate. It is now generally accepted that such motions to exclude evidence should usually be made either before or as soon as the challenged evidence is presented, unless there are exceptional circumstances.