Charter Applications

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General Principles

A Charter motion is a defence application alleging a breach of a provision of the Charter.

Who Can Raise
In certain circumstances, trial judges may have a duty to raise a charter issue on behalf of the accused, particularly where they are self-represented.[1] However, interference of the judge by raising a Charter issue against the intent of counsel may amount to reasonable apprehension of bias.[2]

Proper Court
A Charter application must be heard by a "court of competent jurisdiction". This is a court that has jurisdiction over the subject matter, the person and the remedy.[3] This will generally be the trial judge.[4] However, it will not include a preliminary inquiry judge.[5] A superior court has "constant, complete and concurrent jurisdiction with the trial court for applications under s. 24(1) of the Charter."[6]

A provincial court judge has no power to make a "declaration of invalidity" against any provision of law. They may however decide to "decline to apply the law" on the basis of a provision's unconstitutionality. Only a court of "inherent jurisdiction" (ie. a superior court) may make such a declaration.[7]

Territorial Jurisdiction

The Charter does not apply to Canadian authorities outside of Canada except when:[8]

  1. the foreign jurisdiction consents to its application; or
  2. the do cut of the Canadian authorities violates international human rights obligations.

Procedure
The onus of proof is upon the party advancing the motion.[9] The opposing party must be given notice of the motion and a chance to challenge the evidence as well as present evidence as well.[10]

Relief under the Charter must flow from a motion, it is not automatic.[11] The motion must be based on evidence before the court.[12]

In some cases, the judge may seek to have the defence summarize the evidence it anticipates to call. If the evidence does not reveal a basis upon which the evidence may be excluded the judge may refuse to let the defence enter into a voir dire on the issue.[13]

The responding Crown is entitled to wait until the completion of the applicant's evidence before deciding on how they wish to respond to the motion, including calling rebuttal witnesses.[14]

  1. R v Travers 2001 NSCA 71 (CanLII)
  2. R v Youngpine 2009 ABCA 89 (CanLII)
  3. R v Hynes, 2001 SCC 82 (CanLII), [2001] 3 SCR 623
  4. R v Rahey, 1987 CanLII 52 (SCC), [1987] 1 SCR 588
  5. Hynes
  6. R v Blencowe, 1997 CanLII 12287 (ON SC)
  7. R v Lloyd, 2016 SCC 13 (CanLII) at para 19
  8. R v Tan, 2014 BCCA 9 (CanLII)
  9. R v Currie, 2008 ABCA 374 (CanLII), per Côté JA, at para 39
  10. Currie, ibid. at para 39
  11. Currie, ibid., at para 39
  12. Currie, ibid. at para 39
  13. R v Kutynec, 1992 CanLII 7751 (ON CA), (1992) 70 CCC (3d) 289, per Finlayson JA
    R v Durette, 1992 CanLII 2779 (ON CA), (1992) 72 CCC (3d) 421 (ONCA), per Finlayson JA, at p. 436 ("when an accused makes a Charter motion he or she can be asked to stipulate a sufficient foundation for the claim or its constituent issues.")
  14. R v Deveau, 2011 NSCA 85 (CanLII), per Fichaud JA

Burden and Standard of Proof

The burden of proving a violation of any constitutional right, with some exception, is upon the applicant.[1] This requires that the applicant bear the "initial burden of presenting evidence".[2]

Specific Types of Challenges
The burden is upon the applicant for violations of:

Violations for a warrantless search and seizure puts the burden upon the Crown.[3] However, the defence must first establish a foundation that there was a search and it was warrantless.[4]

The burden for a challenge to voluntariness of a statement is upon the Crown.

Standard of Proof
The evidence must be "sufficiently clear, convincing and cogent" to establish the breach on a balance of probabilities.[5]

If the evidence is not sufficiently persuasive one way or another, the court must find there was no Charter violation.[6]

  1. R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265
    R v Kutynec, 1992 CanLII 7751 (ON CA) ("As a basic proposition, an accused person asserting a Charter remedy bears both the initial burden of presenting evidence that his or her Charter rights or freedoms have been infringed or denied, and the ultimate burden of persuasion that there has been a Charter violation.")
  2. Collins at para 21
  3. see Warrantless Searches
  4. Collins at praa. 22 ("The standard of persuasion required is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden of persuasion means only that, in a case where the evidence does not establish whether or not the appellant's rights were infringed, the court must conclude that they were not")
    R v Caslake, [1998] 1 SCR 51, 1998 CanLII 838 (SCC) at para 11 ("Hence, once the accused has demonstrated that the search was warrantless, the Crown has the burden of showing that the search was, on the balance of probabilities, reasonable")
  5. Collins at para 30 ("the standard of persuasion required can only be the civil standard of the balance of probabilities")
    F.H. v McDougall, 2008 SCC 53 (CanLII) at para 46
  6. R v Hardenstine, 2010 BCSC 899 (CanLII), paras 27, 34, referring to R v Collins

Standing

A person must have personal Charter-protected rights to make a claim of a violation under the Charter and seek a remedy under s. 24(2) of the Charter. [1]

An accused is not entitled to rely on a possible violation of the Charter rights of a co-accused.[2]

For example, where the accused is a passenger of the vehicle, the accused will not have standing to bring a Charter application as there is no privacy interest as a passenger, at least so diminished as to not have any Charter protection.[3]

A child under the age of 12 cannot be charged with an offence [4]and so they do not have standing to make any claim for a breach of s.8 Charter rights.

There is no rule of automatic standing in challenging a search. Only a party who can establish a personal right to privacy (i.e. a "reasonable expectation of privacy") can challenge a search.[5]

In section 8 Charter applications, standing exists where it has been established that the accused had a Reasonable Expectation of Privacy to the target of the search.

Where the acccused asserts a s.8 privacy right, they cannot, in the defence evidence assert facts that contradict this right. For example, a privacy right over a residence requires that the accused acknowledge living there.[6]

  1. R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128
  2. R v Sandhu, (1993) 28 BCAC 203 (BCCA)
  3. R v Ramos, 2011 SKCA 63 (CanLII), 371 Sask. R. 308
  4. YCJA s.2 defines "young person" as age 12 to 18
  5. e.g. R v Fankhanel, 1999 CanLII 19075 (AB QB) at para 12 citing R v Edwards (1996), 104 CCC (3d) 137 (S.C.C.)
  6. See R v Farrah (D.), 2011 MBCA 49 (CanLII) at paras 18 to 25

State Agent

The impugned conduct must be that of a state agent.

Section 32 of the Charter provides that:

32 (1) This Charter applies

(a) 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
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.


Incriminating Evidence collected by private persons "is routeinly admitted without Charter scrutiny".[1]

Arrest and detention by private security on the basis of committing a criminal offence and then delivery to the police does not amount to state conduct.[2]

A psychologist who receives a spontaneous confession is not a state agent.[3]

Independent actions of an informer to collect information from an offender in order to deliver the information to police is not an agent.[4]

A landlord entering into an apartment in response to a compliant and then reports the findings to police is not acting as an agent.[5]

  1. R v Dell, 2005 ABCA 246 (CanLII) at para 29
  2. Dell, ibid.
  3. R v GAllup, 2004 ABCA 322 (CanLII)
  4. R v McInnis 1999 CanLII 2671 (ONCA)
  5. R v Drakes, 2009 ONCA 560 (CanLII)

Notice

An Accused must prove a Charter violation through conducting a voir dire. Notice must give notice of a Charter application or else the application can be rejected without hearing evidence.[1]

There is a duty upon defence to raise any Charter issues before trial.[2]

A threshold examination must be made to determine if on a balance of probabilities that the accused may be entitled to a Charter remedy and that the right was asserted as reasonably early as possible.[3] Where there is no timely notice, the Court may refuse an application.[4]

See also: R v Wilson 2011 BCCA 252 (CanLII)
R v Ahmed-Kadir and McFadyen, 2011 BCPC 250 (CanLII)

Where the court rules have not been complied with, the court “has wide discretion in respect of procedure to facilitate a fair and expeditious determination of Charter issues”[5] Thus, even a late request for a Charter application can still be heard by the court.

Since the crown may not know the whole charter evidence before the motion, they are entitled to call evidence after hearing from the defence.[6]

The defence cannot object to the admission of evidence on the basis of a Charter violation where it is first raised in closing.[7]

Prior to trial, the court may make inquiries into what Charter issues to be presented at trial. [8]

Rules of Court
Many provinces have rules that govern the notice requirements of Charter applications.[9]

Under the Ontario Rules of Criminal Proceedings, the trial judge has discretion in whether to penalize non-compliance by refusing to permit the application. The judge must review several factors in the process[10] including:[11]

  • preference to have applications heard
  • prejudice to the opposite party
  • the efficient management of the courts,
  • the fair and orderly conduct of the trial and
  • the particularization of the Notice.

Absence of Notice
The court may refuse to hear a Charter application where no notice is given.[12]

The right to make full answer and defence does not include right to trial by ambush.[13]

Failure to comply with rules of motion is not always fatal to the motion.[14]

  1. R v Hamill (1984) 13 CCC 338 (BCCA), 1984 CanLII 39 (BC CA)
    R v Kutynec, 1992 CanLII 7751 (ON CA), [1992] O.J. No. 347 at 16
    R v Vukelich, 1996 CanLII 1005 (BC CA), (1996), 108 CCC 193 (BCCA), 1996 CanLII 1005
    e.g. R v Graham, 2008 NSPC 83 (CanLII) - charter application rejected due to lack of notice
  2. R v Kovac, 1998 CanLII 14961 (ON SC), [1998] O.J. No. 2347 (Ont. C.J.) at p.9
  3. Vukelich, supra
  4. see Kutynec at para 19
  5. R v Blom, 2002 CanLII 45026 (ON CA), (2002), 61 O.R. (3d) 51 (C.A.) at 21 and 22
  6. R v Deveau 2011 NSCA 85 (CanLII)
  7. R v Kovac, 1998 CanLII 14961 (ON SC), [1998] OJ 2347 (Gen. Div.)
    R v Nagda [2000] O.J. No. 5694 (Ont. C.J.) - Charter raised 10 months after trial, but before closing submission
  8. R v Yorke, 1992 CanLII 2521 (NS CA), (1992) 115 NSR (2d) (NSCA) ("It is basic to any adversarial system that a litigant applying for curial relief advise the court and the opponent of the application")
    R v Kingsbury [1997] O.J. No. 5438 (Ont. C.J.)
  9. e.g. Rule 30 of the Rules of Criminal Proceedings (Ontario)
  10. R v Blom, 2002 CanLII 45026 (ON CA), [2002] O.J. No. 3199 (ON CA) at paras 21 to 22
  11. R v Tash, 2008 CanLII 1541 (ON SC), [2008] O.J. No. 200 (ON SCJ) at para 15
  12. R v Rambissoon, 2012 ONSC 3032 (CanLII), [2012] OJ 2305 (SCJ)
  13. R v Darrach, 2000 SCC 46 (CanLII) at para 55
  14. R v Tillotson, 2011 ONSC 3390 (CanLII)

Sufficiency

Notice must outline some facts, sometimes with a supporting affidavit. [1]

There is no "absolute entitlement to an evidentiary hearing", rather there must be a "factual and legal basis" for any motion.[2]

Where insufficient notice is given on a constitutional challenge the court may refuse to entertain the argument.[3]

  1. R v Vukelich, 1996 CanLII 1005 (BC CA) at para 17
    R v Pires; R v Lising, 2005 SCC 66 (CanLII), [2005] 3 SCR 343 at para 35
  2. R v Clancey [1992] OJ 3968 (Ont CJ (Gen Div))
  3. R v Purtill [2012] OJ 2769 (SCJ)

Timing

Before Trial
Verbal notice on the day of trial can be found insufficient notice.[1]

During Trial
The defence should not generally be permitted to raise a Charter motion at any point after the close of the Crown's case.[2]

After Trial
Where a Charter issue is raised after the Crown's case, it cannot be based on the lack of evidence on the particular issue. By requiring the crown to present evidence supporting non-existent Charter motion is tantamount to shifting the burden on the crown to prove the absence of a breach.[3]

  1. e.g. R v Mide, 1998 ABPC 126 (CanLII), [1998] A.J. No. 1384 (Alta. P.C.)
  2. R v Chamberlain (1994), 30 C.R. (4th) 275 (Ont. C.A.) - judge was correct in exercising discretion to refuse to hear application
    R v Dwernychuk, 1992 ABCA 316 (CanLII), (1992), 77 CCC (3d) 385 (Alta. C.A.)
  3. R v Furlong 2012 NLCA 29 (CanLII)

Failure to Given Timely Notice

Discretion
It is in the ultimate discretion of the trial judge to decide whether to permit a late Charter application.[1]

The trial judge had discretion to refuse to hear any motions with no notice or insufficient notice.[2] The Court must balance the efficient use of court resources with the determination of court matters. [3]

  1. R v Habhab [1997] A.J. No. 175 (Alta P.C.) p. 9-10
  2. R v Smith, 2004 SCC 14 (CanLII), [2004] 1 SCR 385, at para 39
  3. R v Loveman (1992) 71 CCC (3d) 123

Appeals

See also: Appeals#Appeal of a Charter Voir Dire

Reviewing a judge’s decision a whether there was a Charter breach is determined on the standard of correctness.[1] However, the evidence underlying the Charter matter can only be reviewed on the standard of “palpable and overriding error”.[2]

  1. R v Farrah 2011 MBCA 49 (CanLII) at para 7
  2. ibid

Preserving Right of Appeal

A guilty plea after a failed Charter application extinguishes all rights of appeal.[1]

When an application fails, "the proper procedure to follow when an accused wishes to preserve his or her right to appeal an adverse voir dire ruling is to admit the facts alleged by the Crown and invite the judge to convict".[2]

  1. see Guilty Plea
    c.f. R v Liberatore, 2014 NSCA 109 (CanLII) at paras 9, 13
  2. R v Webster, 2008 BCCA 458 (CanLII), at para 21

On Appeal but Not Raised at Trial

An accused may raise a new issue on appeal only with leave of the court.[1]

Even where leave is not requested, particularly where the accused is self-represented on appeal, the court may still consider whether to grant leave.[2]

  1. R v Aisthorpe, 2006 NLCA 40 (CanLII)
  2. R v O'Keefe (No. 2), 2012 NLCA 25 (CanLII) at paras 24 to 27

Briefs

The crown does not need to file a brief responding to an accused's Charter motion. He may instead wait until the conclusion of the accused's evidence to decide.[1]

  1. R v Deveau, 2011 NSCA 85 (CanLII)

Remedies

Charter remedies include:

See Also