Charter Applications
The Canadian Charter of Rights and Freedoms addresses the basic freedoms and rights of Canadians. It is a set of laws containing the country’s basic values as a free, democratic society. All legislation must comply with the Charter to ensure that Canada remains an inclusive place for all people.
A criminal investigation can sometimes violate these freedoms in some way, however, there’s recourse when this happens. Where the violation of rights is particularly serious, an accused person may seek a dismissal of the charges, otherwise called a “stay of proceedings”. An accused person can also seek other remedies such as: exclusion of incriminating evidence, an adjournment of trial, order the crown to pay costs incurred to the accused or demand that the Crown make other compensation.
Constitutional rights are the cornerstone of the criminal justice system. The technical aspects of the court processes are subject to the Charter. Some rights that an accused person has are: the right to remain silent, the right to be present for all aspects of his or her trial and the right to be represented by counsel.
Laws themselves are also subject to Charter scrutiny. Whenever a law is passed by the government it must not violate the various constitutional guarantees already in place. If a law breaches a constitutional right, an accused person can bring an application to have the law either struck down or modified by the Court.
The criminal defence lawyers at LZZ have extensive experience successfully defending against all types of Charter violations. If you or someone you know has had their Charter rights violated during the course of a criminal investigation you should contact a criminal lawyer immediately to help determine the best course of action. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Common Questions Regarding Bail Hearings
What is the Canadian Charter of Rights and Freedoms?
The Canadian Charter of Rights and Freedoms, known as the Charter, guarantees all Canadians certain rights such as the rights to liberty and equality under the law. It also guarantees fundamental freedoms such as freedom of religion, freedom of expression, freedom of association and peaceful assembly. These are guaranteed only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
What is the relationship between the Charter and criminal law?
The Charter affects all areas of criminal law, from the investigation of a crime, procedural fairness at trial, and decisions about the use of evidence, right through to the sentencing hearing. The Charter can also be used to strike down a criminal law passed by parliament if it violates one of the freedoms protected by the Charter and the government cannot justify the violation.
How does the Charter affect a criminal investigation?
The Charter guarantees that Canadian citizens will not be subject to unreasonable searches (section 8) and seizure or arbitrary arrest or detention (section 9). An individual also has the right to be informed of the reason for arrest or detention (section 10(a)), and the right to obtain and instruct counsel without delay (section 10(b)). If any of these rights are violated in the conduct of a criminal investigation, the evidence obtained can be excluded at trial or the proceedings could be stayed.
How does the Charter affect a criminal trial?
Section 11 of the Charter sets out several specific guarantees which include the following:
• the right to be tried within a reasonable time;
• the right to not be a witness against oneself;
• the right to be presumed to be innocent until proven guilty according to law in a fair and public hearing by an independent and impartial court;
• the right not to be denied reasonable bail without just cause;
• the right to trial by jury where the maximum punishment is imprisonment for more than 5 years or a more severe punishment;
• the right, if acquitted of a charge, not to be tried for it again, and if convicted and punished, not to be tried and punished for it again;
• the right to be charged only in matters that constitute an offence under Canadian or international law, or in a criminal matter in accordance with general principles of law recognized by the community of nations.
How does the Charter affect punishment for criminal offences?
The Charter contains a guarantee against cruel or unusual treatment or punishment.
How do I bring a Charter application?
Before a pre-trial motion or the criminal trial, you will need to file a notice of application setting out the Charter breaches and the alleged factual basis for the Charter breach. This may require the filing of a factum with the Court.
The Charter breach may be that the police officer(s) had no grounds to arrest or search you, or that the Court and Crown have taken too long to prosecute you. There are several Charter allegations that could be made, so this must be properly outlined to allow the Crown to respond to the allegations.
During the Charter application, you will need to call witness and tender exhibit to support that your Charter rights were breached. The onus is on the party alleging a Charter breach to prove that a breach did happen. If successful, you can apply for a stay of proceedings (section 24(1) of the Charter) or to have the evidence excluded (section 24(2) of the Charter). A successful Charter challenge may end the criminal case against you, or it may significantly weaken the Crown’s case against you if specific evidence is excluded.
How do I find a lawyer to help me allege a Charter breach?
The Lawyers at Lockyer Zaduk Zeeh are experienced trial counsel who have brought Charter challenges alleging all types of different Charter breaches, such as illegal searches, unlawful arrests, and unreasonable delay. LZZ has also brought numerous successful Charter challenges finding that provisions of the Criminal Code or other Acts breach the Charter. We defend individuals charged with crimes across Ontario, and regularly represent individuals charged in Toronto, Peel (Brampton and Mississauga), Milton, Guelph, Kitchener-Waterloo, Woodstock London, St. Thomas, Sarnia, and Windsor.
Charter Applications Blogs
The Application of the Charter of Rights and Freedoms at the Border in Importation Cases
