Waiver of Charter Rights

From Criminal Law Notebook


This page was last substantively updated or reviewed January 2020. (Rev. # 93940)

General Principles

General Requirements of Waiver

It is generally required that the Crown show that the waiver included the following:[1]

  1. the accused gave express or implied consent to waive the rights
  2. the giver of the consent had the authority to give consent
  3. the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
  4. the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
  5. the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and,
  6. the giver of the consent was aware of the potential consequences of giving the consent.
Burden

The burden is upon the Crown to prove that the waiver on a balance of probabilities.[2]

Waiver Must be Clear and Fully Informed

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.[3] The person must be "fully and properly informed" in order for the waiver to be valid.[4]

This requirement equally applies to any procedural right as well as Charter right, which can be waived where the waiver is "waiver is informed, clear, and unequivocal."[5]

Impairments of Accused

Where the accused is intoxicated there is an increased onus on the Crown to prove valid waiver given that they may not readily have a "true appreciation of the consequences" of waiving their right.[6] This may require that police delay the continuation of the investigation until the person is sober enough to understand their rights enough to waive them.[7]

Section 8 of Charter

It is necessary for the Crown to prove waiver of an accused right under s. 8 of the Charter of Rights and Freedoms.[8]

Entrance onto Property

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.[9]

  1. R v Wills, 1npnl, 1992 CanLII 2780 (ON CA), per Doherty JA
  2. Wills, supra
  3. Korponay v Attorney General of Canada, 1982 CanLII 12 (SCC), [1982] 1 SCR 41, per Lamer J, 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.")
  4. R v Edwardsen, 2019 BCCA 259 (CanLII), per Harris JA, at para 9 ("A person waiving a procedural right must be fully and properly informed of their rights in order for the waiver to be valid")
    R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173, at pp. 203–04 (SCR)
  5. Edwardsen, supra, at para 9 ("an accused can waive procedural rights for their benefit, as long as the waiver is informed, clear, and unequivocal")
    R v Tran, 1994 CanLII 56 (SCC), [1994] 2 SCR 951, per Lamer CJ, at pp. 996–97 (SCR)
  6. R v Clarkson, 1986 CanLII 61 (SCC), [1986] 1 SCR 383, per Wilson J, at p. 303
  7. e.g. Clarkson, ibid.
  8. See R v Neilson, 1988 CanLII 213 (1988), 43 CCC (3d) 548, per Bayda CJ
  9. See R v Evans, 1996 CanLII 248 (SCC), [1996] 1 SCR 8, per Sopinka J at 12-13 implied invitation
    R v Roy, 2010 BCCA 448 (CanLII), 261 CCC (3d) 62, per Lowry JA express invitation

See Also