CHARTER OF RIGHTS AND FREEDOMS
The Canadian Charter of Rights and Freedoms (Charter) became law on April 17, 1982. The Charter is the Supreme law of the land and its provisions prevail over all other legislation, provincial or federal.
Parliament or a provincial legislature may choose to pass a law which overrides a conflicting Charter provision by relying on the “Notwithstanding Clause”—section 33 of the Charter. Section 33 permits Parliament or a provincial legislature to override applicable Charter provisions in certain circumstances. However, all true criminal law legislation is federal and, to date, the federal government has not invoked the notwithstanding clause. Charterpedia – Section 33 – Notwithstanding clause. Accordingly, the Charter, forty-two years after its enactment, remains an important bulwark against the violation of rights by state actors in the criminal law context.
The Charter does not govern conduct between individuals. Its intent is to enshrine certain inalienable rights and to regulate conduct between citizens and all levels of their government. This includes the interactions of Canadians with the criminal justice system.
In this context, certain legal rights are guaranteed, including:
o Not to be denied life, liberty or security of the person, except in accordance with the principles of fundamental justice (Charter s. 7)
o The right to be secure against unreasonable search or seizure (Charter s. 8)
o The right not to be arbitrarily detained or imprisoned (Charter s.)
o The right, on arrest or detention (Charter s. 10):
o To be promptly informed of the reasons for the arrest or detention
o To be informed, without delay, of the right to retain and instruct a lawyer
o To have the validity of the detention determined by way of habeas corpus (to be brought before a court to determine if the detention is lawful)
o The right, if charged with an offence (Charter s. 10):
o To be informed without unreasonable delay of the specific offence charged
o To be tried within a reasonable time
o Not to be compelled to testify in the proceedings
o To be presumed innocent until proven guilty in a fair and public hearing before an independent and impartial trier
o Not to be denied a reasonable bail without just cause
o Where the maximum punishment is five years jail or more, the right to be tried by a jury (except an offence under military law tried by a military tribunal
o Not to be found guilty because of any act or omission unless it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations
o Not to be tried again for an offence once finally acquitted or found guilty of the offence (no double jeopardy)
o If found guilty of an offence, and the punishment for the offence has changed between the time of charging and the time of sentencing, to receive the benefit of the lesser punishment
o Not to be subject to any cruel and unusual punishment (Charter s. 12)
o Except in a prosecution for perjury, not to have incriminating evidence testified to in a proceeding, used against that witness in a subsequent proceeding (Charter s. 13)
o The right to an interpreter, of a witness or party, who is deaf or does not understand the language the proceedings in which the proceeding are conducted (Charter s. 14)
o The right to equality before and under the law without discrimination based on race, ethnicity, colour, religion, sex, age or mental or physical disability (Charter s. 15)
o French and English are the official languages of Canada, thus an accused person can request a trial in either French or English (Charter s. 16)
Enforcement of Charter Rights
Section 24 of the Charter provides the enforcement mechanism for violation of Charter rights:
- (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Government entities can be sued civilly for breach of Charter rights, including for prosecutorial misconduct in criminal cases: Henry v. B. C. Attorney General
In the context of a criminal trial, two remedies are available.
Stay of Proceedings
Under s. 24 (1), an accused person can apply to the trial judge for a stay of proceedings (equivalent to a dismissal of the charges).
Exclusion of Evidence
Under s. 24 (2), an accused person may apply for an exclusion of evidence. The evidence will be excluded if it was “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter” and “the admission of it in the proceedings would bring the administration of justice into disrepute”.
It is important to note the distinction with the American system of remedies for rights violations, in which the evidence is automatically excluded once a violation is shown.
In Canada’s two-step process, as described above, evidence might not be excluded even when Charter rights are shown to have been violated. In some cases, a lesser remedy than a stay of proceedings or evidence exclusion may be granted, such as a reduction in sentence.
Exclusion of evidence frequently results in the end of the prosecution. For example, physical evidence such as a firearm, drugs, or fingerprints may be excluded, leaving the Crown with no case to prosecute. The exclusion of a confession by an accused person or an improperly conducted photographic identification procedure may also end the prosecution.
As experienced and highly effective trial lawyers, David G. Bayliss and Luka Rados have conducted hundreds of successful applications to stay proceedings and exclude evidence. Often, Crown attorneys choose to withdraw cases before trial when confronted with powerful written arguments (factums) prepared by David or Luka. See Succussful Cases
