Waiver of Charter Rights

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General Principles

The waiver of any Charter right must be done clearly and unequivocally with full knowledge of the scope of the right and effect of the waiver.[1]

It is necessary for the Crown to prove waiver of an accused right under s. 8.[2]

An express or implied invitation, such as at the attendance of police at the door of a residence or being invited into the house, results in the waiving of privacy.[3]

  1. Korponay v Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 SCR 41 at p. 49 ("the validity of such a waiver, and I should add that that is so of any waiver, is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.")
  2. See: R v Neilson, 1988 CanLII 213, (1988), 43 CCC (3d) 548 (SKCA)
  3. See R v Evans, 1996 CanLII 248 (SCC), [1996] 1 SCR 8, at 12-13 implied invitation
    R v Roy, 2010 BCCA 448 (CanLII) express invitation

See Also