Explanation of Charter Applications

The Canadian Charter of Rights and Freedoms represents our country’s most basic values as a free and democratic society. All legislation and government action must comply with the Charter.

In the course of a criminal investigation, sometimes the state violates the rights of Accused individuals. Under the Charter, there is recourse when such infractions are committed.

When the state violates the rights of an individual, they may apply to the trial Court to redress any infringement of their rights. Charter applications are often brought to exclude evidence that was obtained by the police in violation of certain rights.

Where the violation of rights is particularly serious, an Accused may seek a dismissal of the charges. This is called a “stay of proceedings.” There are other remedies as well, such as:

• Adjournment of a trial;
• Order the Crown to pay costs incurred to the Accused; or
• Demand that the Crown make other compensation, such as provide copies of evidence to the Accused where the relevance of such evidence was initially in dispute

Charter rights are also pivotal during the trial. Constitutional rights are the very cornerstone of the criminal justice system. All the technical aspects of the court process are subject to the dictates of the Charter. For example, an Accused has many unalienable rights, including:

• The right to be present for all aspects of his or her trial;
• The right to be represented by counsel; and
• The right to maintain silence, etc.

These are a few of a myriad of rules, mandated by the Constitution, that inform the backbone of the trial process.

Also subject to Charter scrutiny are the laws themselves. Any time a law is passed by any level of government, it must not violate the various constitutional guarantees already in place. Should a law breach a constitutional right, an Accused person can bring an application to have the law either struck down or modified by a Court.

Charter litigation has become a very complicated and highly technical area of the law. Caramanna, Friedberg LLP has extensive experience and a top track record in successful Charter litigation.

See also coroners inquests, fingerprint destruction, pardons