Charter Applications

Under Canadian laws, everyone is granted specific fundamental rights under The Charter of Rights and Freedoms. If applicable to the case, potential Charter violations could result in the exclusion of important evidence or a stay of proceedings.


Explanation of Charter Applications

Charter Applications Lawyer in Toronto Ontario

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

Frequently Asked Questions

There are certain rights that can be only be invoked by Canadian citizens. These are:

  • The right to vote;
  • The right to run for office;
  • The right to enter, leave, and remain in Canada;
  • The right of individuals in minority communities to have their children educated in their primary language

The following rights apply to everyone in Canada, regardless if they are a citizen or non-citizen:

  • Fundamental Freedoms;
  • Legal Rights;
  • Right to an Interpreter;
  • Equality Rights; and
  • Language Rights.
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The Charter applies to all governments “ provincial, federal, and territorial, and not to private individuals, businesses and organizations.

The Charter is meant to protect all Canadian citizens. Some Charter rights apply to non-citizens (such as legal and equality rights). The Charter does generally not apply to corporations. However, the Supreme Court of Canada has held that section 8 “ the right against unreasonable search and seizure “ and section 11(b) “ the right to a timely trial “ can apply to corporations.

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Under the Canadian Charter of Rights and Freedoms, Canadian citizens are guaranteed certain rights and freedoms, which can only be limited by law so long as the limit can be demonstrated to be reasonable in a free and democratic society. These rights include:

  • Fundamental Freedoms (freedom of religion, expression, powerful assembly, and freedom of association)
  • Democratic Rights (right to vote)
  • Mobility Rights (right to enter, remain, and move around in Canada)
  • Legal Rights (discussed below)
  • Equality Rights (right to equal treatment under the law and equal protection and benefit of the law without discrimination)
  • Language Rights (right to be able to communicate with government in French and English)
  • Minority Language Education Rights (right to have children educated in their own language)

A Charter application is a motion brought on behalf of the defence alleging a breach or breaches of the accused Charter rights. The issues raised on a Charter application are normally in regard to one™s legal rights under sections 7 “ 14 of the Charter:

  • right to Life, Liberty, and Security of the Person
  • freedom from unreasonable search and seizure.
  • freedom from arbitrary detention or imprisonment.
  • right to legal counsel and the guarantee of habeas corpus.
  • rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.
  • right not to be subject to cruel and unusual punishment.
  • rights against self-incrimination.
  • right to an interpreter in a court proceeding.

On a Charter application, there are also submissions as to what the appropriate remedy is, such as a stay of proceedings or having evidence excluded from a trial.

To obtain a Charter remedy, the accused must:

  • lay out a factual foundation;
  • bring the application at the appropriate stage of litigation; and
  • demonstrate that, on a balance of probabilities, there has been a violation of his or her Charter right(s).
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There can be various types of arguments on a Charter application. At the heart of each Charter application is the argument that the police or Crown have done something that breached a right or multiple rights of the accused and, as a result, this needs to be rectified by way of a remedy.

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Section 32 of the Charter provides that the Charter applies to:

  • The Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
  • The legislature and government of each province in respect of all matters within the authority of the legislature of each province
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