Difference between revisions of "Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)"

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A compilation of ''Charter'' decisions is available at the UBC Law Library, and includes decisions in areas such as arrest procedures, the right to counsel, the admissibility of illegally obtained evidence at trial, search and seizure, and the right to be presumed innocent until proven guilty.

Section 8 of the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96068_01 ''Constitutional Question Act'', RSBC 1996, c 68], requires that 14 days’ notice be given to opposing counsel where the constitutional validity of a law is challenged or where an application is made for a constitutional remedy under section 24(1) of the ''Charter''. '''Note: To challenge legislation or seek a remedy under section 24(1), separate notice must be given to both provincial Crown Counsel and the federal government.''' For an application to exclude evidence under section 24(2) of the ''Charter'', notice is not required by the ''Constitutional Question Act'', but a failure to alert the Crown in a timely manner to an application to exclude evidence under section 24(2) of the ''Charter'' has been met in a number of decisions with the court applying its considerable powers to control its own processes with remedies adversely affecting the party who failed to provide adequate notice to the other party.

Section 1 of the ''Charter'' is often referred to as the “reasonable limits clause” because it is the section that can be used to justify a limitation on a person’s ''Charter'' rights. ''Charter'' rights are not absolute and can be infringed if the Courts determine that the infringement is reasonably justified.

Section 9 – Right not to be arbitrarily detained or imprisoned.

=== 1. Police Powers ===

* To be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel (''[https://www.canlii.org/en/ca/scc/doc/1990/1990canlii123/1990canlii123.html?searchUrlHash=AAAAAQALciB2IGJyeWRnZXMAAAAAAQ&resultIndex=1 R v Brydges]'', [1990] 1 SCR 190).

Under section 10(b), the arresting officer has a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel ([https://www.canlii.org/en/ca/scc/doc/1987/1987canlii67/1987canlii67.html?searchUrlHash=AAAAAQAMciB2IG1hbm5pbmVuAAAAAAE&resultIndex=1 ''R v Manninen'' [1987<nowiki>]</nowiki> 1 SCR 1233]). The arrested person has both the right to Legal Aid counsel and the right to be informed of this right: see [https://www.canlii.org/en/ca/scc/doc/1990/1990canlii123/1990canlii123.html?searchUrlHash=AAAAAQALciB2IGJyeWRnZXMAAAAAAQ&resultIndex=1 ''R v Brydges'' [1990<nowiki>]</nowiki> 1 SCR 190] and [https://www.canlii.org/en/ca/scc/doc/1994/1994canlii65/1994canlii65.html?searchUrlHash=AAAAAQALciB2IHByb3NwZXIAAAAAAQ&resultIndex=1 ''R v Prosper'' [1994<nowiki>]</nowiki> 3 SCR 236]. Some exceptions regarding the timing and access to these rights exist.

:'''NOTE:''' It is good practice to advise the Crown ahead of time before making a ''Charter'' argument even if the only remedy sought is under section 24(2). In the ''Charter'' notice, the accused should provide the Crown with sufficient particulars of the argument, including the alleged breach, the remedy sought, and the witnesses required for the application (''Voir Dire''). The accused should also cite cases on which they intend to rely.

Section 24(2) of the ''Canadian Charter of Rights and Freedoms'' provides a remedy to those whose ''Charter'' rights have been violated and are later in a proceeding where evidence obtained related to that ''Charter'' violation is sought to be introduced. The burden lies on the applicant to establish a ''Charter'' violation. The standard is based on a balance of probabilities. Once the ''Charter'' violation is proven, the focus shifts to matters concerning the possible effects on the fairness of the trial if the evidence was permitted to be used in a trial against the person whose ''Charter'' rights were breached. The three factors to be balanced in order to determine if the evidence should be excluded are (1) the seriousness of the ''Charter'' infringing state conduct, (2) the impact of the ''Charter'' breach on the accused’s interest, and (3) society’s interest on the adjudication of the case on its merits (see R v Grant 2009 SCC 32). The burden is on the accused to establish on a balance of probabilities that evidence should be excluded under section 24(2). See R v Harrison 2009 SCC 34 for more information on the section 24(2) test.

Section 24(1) permits a court to craft any remedy it considers appropriate and just in the circumstances. One commonly sought remedy is a judicial stay of proceedings under section 24(1) for an abuse of process. However, such a remedy is only provided in the clearest of cases and is rarely granted other than for delay. Recent case law has somewhat reinvigorated the doctrine of abuse of process and examined the potential for alternate remedies to judicial stays of proceedings where police conduct was abusive. See [https://www.canlii.org/en/ca/scc/doc/2014/2014scc52/2014scc52.html?searchUrlHash=AAAAAQAIciB2IGhhcnQAAAAAAQ&resultIndex=1 ''R v Hart'' 2014 SCC 52].

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