Charter Applications: Difference between revisions

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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
Where the defence have not made application to challenge the reasonable grounds to that underly police action such as a breath demand, there is no obligation on the Crown to present any evidence that underlies the authority that was executed.^[1]

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.^[2] However, interference of the judge by raising a Charter issue against the intent of counsel may amount to a reasonable apprehension of bias.^[3]

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.^[4] This will generally be the trial judge.^[5] However, it will not include a preliminary inquiry judge.^[6] A superior court has "constant, complete and concurrent jurisdiction with the trial court for applications under s. 24(1) of the Charter."^[7]

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" (i.e. a superior court) may make such a declaration.^[8]

Territorial Jurisdiction
The Charter does not apply to Canadian authorities outside of Canada except when:^[9]

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

↑ R v Charette, 2009 ONCA 310 (CanLII), per Moldaver JA at paras 48 to 49
↑ R v Travers 2001 NSCA 71 (CanLII), per Oland JA
↑ R v Youngpine 2009 ABCA 89 (CanLII), per Fraser CJ
↑ R v Hynes, 2001 SCC 82 (CanLII), [2001] 3 SCR 623, per McLachlin CJ
↑ R v Rahey, 1987 CanLII 52 (SCC), [1987] 1 SCR 588
↑ Hynes
↑ R v Blencowe, 1997 CanLII 12287 (ON SC), per Watt J
↑ R v Lloyd, 2016 SCC 13 (CanLII), per McLachlin CJ at para 19
↑ R v Tan, 2014 BCCA 9 (CanLII), per Bennett JA

Procedure

The onus of proof is upon the party advancing the motion.^[1] The opposing party must be given notice of the motion and a chance to challenge the evidence as well as present evidence as well.^[2]

Relief under the Charter must flow from a motion, it is not automatic.^[3] The motion must be based on evidence before the court.^[4]

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.^[5]

Evidence
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.^[6]

The evidence can take the form of an affidavit and may in cases contain hearsay as to what the accused will testify to at trial.^[7]

↑ R v Currie, 2008 ABCA 374 (CanLII), per Côté JA, at para 39
↑ Currie, ibid. at para 39
↑ Currie, ibid., at para 39
↑ Currie, ibid. at para 39
↑ R v Deveau, 2011 NSCA 85 (CanLII), per Fichaud JA
↑ 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.")
↑ e.g. R. v. McCaw, 2018 ONSC 3464 (CanLII), per Spies J, paras 3 and 5

Discretion to Dismiss Charter Applications

There is "no absolute right to a voir dire" where a Charter right is claimed to have been violated.^[1]

The threshold to grant an evidentiary hearing is a "low" one.^[2] It is only necessary that the evidentiary hearing "would assist" or "can assist" to determine the "real issue".^[3]

A judge may decline to hold an evidentiary hearing into a alleged Charter breach if there is no remedy available.^[4] The decision is a discretionary one and is highly contextual.^[5]

Vukelich Hearing
Parties may request the jduge to hold a Vukelich hearing" which determines whether the Court will decline the accused from requesting a voir dire on a Charter issue.^[6]

Certain other provinces have similar powers under civil procedure rules to dismiss applications for lack of merit.^[7]

The hearing is premised on the notion that there "is no point to the airing of a Charter issue in a criminal or quasi-criminal proceeding unless resolution of the issue might lead to the end of the prosecution or to the exclusion of evidence".^[8]

↑ R v Bains, 2010 BCCA 178 (CanLII), per D. Smith J at para. 69
R v Mehan, 2017 BCCA 21 (CanLII), per D. Smith J
↑ R v Hamdan, 2017 BCSC 562 (CanLII), per Butler J
↑ R v Mehan, 2017 BCCA 21 (CanLII), per D. Smith JA at paras. 44-47
↑ R v Mastronardi, 2015 BCCA 338 (CanLII), per Kirkpatrick JA at para. 63
↑ R v McDonald, 2013 BCSC 314 (CanLII), per Fitch J at para. 21
↑ R v Vukelich, 1996 CanLII 1005 (BC CA), [1996] BCJ No. 1535; 108 CCC (3d) 193, per McEachern JA at para. 25 to 26
see also R. v. Kapp, 2006 BCCA 277 (CanLII), per Low JA, appeal dismissed at 2008 SCC 41 (CanLII)
R v Cody, 2017 SCC 31 (CanLII), per curiam at para 38
↑ R v Sutherland, 2017 BCPC 42 (CanLII), per Gouge J at para 11
↑ Kapp, ibid. at paras 94 to 94

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]

When Burden is Upon the Applicant
Generally, the burden is upon the applicant for violations of:

When Burden is Upon the Crown
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.

Also where delay ceiling to bring a matter to a conclusion has been surpassed the burden is upon the Crown to prove s. 11(b) of the Charter has not be violated.^[5]

Standard of Proof
The evidence must be "sufficiently clear, convincing and cogent" to establish the breach on a balance of probabilities.^[6]

If the evidence is not sufficiently persuasive one way or another, the court must find there was no Charter violation.^[7]

Courts must be mindful that "the Charter must receive contextual application. The scope of a particular Charter right or freedom may vary according to the circumstances."^[8]

↑ R v Collins, 1987 CanLII 84 (SCC), [1987] 1 SCR 265, per Lamer J
R v Kutynec, 1992 CanLII 7751 (ON CA), per Finlayson JA ("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.")
↑ Collins, supra at para 21
↑ see Warrantless Searches
↑ Collins, supra at para 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), per Lamer CJ 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")
↑ R v Jordan, 2016 SCC 27 (CanLII), per Moldaver, Karakatsanis and Brown JJ
↑ 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), per Rothstein J at para 46
↑ R v Hardenstine, 2010 BCSC 899 (CanLII), per Savage J, paras 27, 34, referring to R v Collins
↑ R v Jarvis, 2002 SCC 73 (CanLII), per Iacobucci and Major JJ, at para 63

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]

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.^[2]

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 accused 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.^[3]

Burden and Standard of Proof
The onus is upon the applicant to prove standing on a balance of probabilities.^[4]

Discharge of Burden by Relying on Allegations as True
An accused need not tender evidence to establish standing to enforce a Charter right. The court may assume as true any fact alleged by the Crown instead of tendering defence evidence.^[5] This permits an accused to invoke a s. 8 Charter right while maintaining their denial of identity as the culprit.^[6]

Enforcing Rights of Another Person
An accused is not entitled to rely on a possible violation of the Charter rights of a co-accused.^[7]

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.^[8]

Young Person Under 12 Years of Age
A child under the age of 12 cannot be charged with an offence ^[9]and so they do not have standing to make any claim for a breach of s. 8 Charter rights.

Crown Standing to Respond to an Application
Where there has been a prior ruling of unconstitutionality within the province that was not appealed by the Crown does not estop the Crown from making submissions against a subsequent application on a new proceeding.^[10]

↑ R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128, per Cory J
R v Rahey, 1987 CanLII 52 (SCC), [1987] 1 SCR 588, at p. 619
↑ e.g. R v Fankhanel, 1999 CanLII 19075 (AB QB), per Veit J at para 12 citing R v Edwards, [1996] 1 SCR 128, 1996 CanLII 255 (SCC)
↑ See R v Farrah (D.), 2011 MBCA 49 (CanLII), per Chartier JA at paras 18 to 25
↑ R v Pasian, 2015 ONSC 1557 (CanLII), per Goodman J at para 17
R v Logan, 2005 ABQB 321 (CanLII), per Macklin J at para 81
↑ R v Jones, 2017 SCC 60 (CanLII), per Côté J at para 32
↑ Jones, ibid.
↑ R v Sandhu, (1993) 28 BCAC 203 (BCCA), 1993 CanLII 1429 (BC CA), per Prowse JA
↑ R v Ramos, 2011 SKCA 63 (CanLII), 371 Sask. R. 308, per Ottenbreit JA
↑ YCJA s.2 defines "young person" as age 12 to 18
↑ R. v. McCaw, 2018 ONSC 3464 (CanLII), per Spies J, at para 53

State Agent

The impugned conduct that implicates the Charter must be that of a state agent. This will generally be of concern for Charter rights such as:

the right to silence;
voluntariness of a statement made to a person in authority;
the right against search and seizure; or
detention, including through citizen's arrest or private security

Application of the Charter
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.

– CCRF

Incriminating evidence collected by private persons "is routinely admitted without Charter scrutiny".^[1]

Independent actions of an informer to collect information from an offender in order to deliver the information to police is not an agent.^[2]

↑ R v Dell, 2005 ABCA 246 (CanLII), per Fruman JA at para 29
↑ R v McInnis, 1999 CanLII 2671 (ONCA), per Rosenberg JA

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]

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]

↑ R v Hamill (1984) 13 CCC 338 (BCCA), 1984 CanLII 39 (BC CA), per Esson JA
R v Kutynec, 1992 CanLII 7751 (ON CA), [1992] O.J. No. 347, per Finlayson JA at 16
R v Vukelich, 1996 CanLII 1005 (BC CA), (1996), 108 CCC 193 (BCCA), per McEachern JA
e.g. R v Graham, 2008 NSPC 83 (CanLII), per Embree J - charter application rejected due to lack of notice
↑ R v Kovac, 1998 CanLII 14961 (ON SC), [1998] O.J. No. 2347 (Ont. C.J.), per Hill J at p.9
↑ Vukelich, supra
↑ see Kutynec, supra at para 19
↑ R v Blom, 2002 CanLII 45026 (ON CA), (2002), 61 O.R. (3d) 51 (C.A.), per Sharpe JA at 21 and 22
↑ R v Deveau 2011 NSCA 85 (CanLII), per Fichaud JA
↑ R v Kovac, 1998 CanLII 14961 (ON SC), [1998] OJ 2347 (Gen. Div.), per Hill J
R v Nagda [2000] O.J. No. 5694 (Ont. C.J.)(*no CanLII links) - Charter raised 10 months after trial, but before closing submission
↑ R v Yorke, 1992 CanLII 2521 (NS CA), (1992) 115 NSR (2d) (NSCA), per Roscoe JA ("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.)(*no CanLII links)
↑ e.g. Rule 30 of the Rules of Criminal Proceedings (Ontario)
↑ R v Blom, 2002 CanLII 45026 (ON CA), [2002] O.J. No. 3199 (ON CA), per Sharpe JA at paras 21 to 22
↑ R v Tash, 2008 CanLII 1541 (ON SC), [2008] O.J. No. 200 (ON SCJ), per Hill J at para 15
↑ R v Rambissoon, 2012 ONSC 3032 (CanLII), [2012] OJ 2305 (SCJ), per Trotter J
↑ R v Darrach, 2000 SCC 46 (CanLII), per Gonthier J at para 55
↑ R v Tillotson, 2011 ONSC 3390 (CanLII), per Reid J

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]

↑ R v Vukelich, 1996 CanLII 1005 (BC CA), per McEachern JA at para 17
R v Pires; R v Lising, 2005 SCC 66 (CanLII), [2005] 3 SCR 343, per Charron J at para 35
↑ R v Clancey [1992] OJ 3968 (Ont CJ (Gen Div))(*no CanLII links)
↑ R v Purtill [2012] OJ 2769 (SCJ)(*no CanLII links)

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]

↑ e.g. R v Mide, 1998 ABPC 126 (CanLII), [1998] A.J. No. 1384 (Alta. P.C.), per Fraser J
↑ R v Chamberlain (1994), 30 C.R. (4th) 275 (Ont. C.A.), 1994 CanLII 1165 (ON CA), per curiam - 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.), per curiam
↑ R v Furlong 2012 NLCA 29 (CanLII), per Hoegg JA

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]

↑ R v Habhab [1997] A.J. No. 175 (Alta P.C.)(*no CanLII links) p. 9-10
↑ R v Smith, 2004 SCC 14 (CanLII), [2004] 1 SCR 385, per Binnie J, at para 39
↑ R v Loveman, 1992 CanLII 2830 (ON CA), (1992) 71 CCC (3d) 123, per Doherty JA

Motion to Dismiss Charter Motions

A trial judge may dismiss a motion under its powers to control proceedings for those applications that lack merit or are not brought in time.^[1]

The judge should be "reluctant to foreclose an inquiry into an alleged violation" of the Charter.^[2]

The judge should give consideration "whether there is an 'air of reality' to the alleged breach.^[3]

The court may consider factors including:^[4]

whether or not there is any statutory rule or practice direction requiring notice;
the notice which was given to the Crown;
the point during the trial proceedings when the appellants’ counsel first indicated he intended to bring a Charter motion;
the extent to which the Crown was prejudiced by the absence of any specific reference to a Charter-based argument in the notice given to the Crown; and
the specific nature of the Charter argument which counsel propose to advance and the impact the application could have on the course of the trial.

Timing of the Charter Application
A significant factor on the discretion to dismiss a Charter application is the timing when the motion was made.^[5]

Procedure
The procedure to dismiss any motion will be dictated by the particular rules of court for the particular jurisdiction.^[6]

↑ R v Henneberry, 2015 NSPC 96 (CanLII), per Chisholm J - re provincial court has authority even if not specifically mentioned in the Rules of Court
R v Bugden, 2015 CanLII 27426 (NL PC), per Skanes J at para 27
↑ R v Loveman, 1992 CanLII 2930 (ON CA), [1992] OJ 346, per Doherty JA
↑ Bugden, supra
R v Gauvin, 2014 ONSC 4108 (CanLII), per Quigley J
↑ Loveman, supra
↑ Loveman, ibid. ("The trial judge ought to consider whether the basis for the Charter motion was known or could reasonably have been known to the Defence prior to trial.")
↑ NS, Prov Crt: Nova Scotia Court Rules
NS, Sup. Crt: Nova Scotia Civil Procedure Rules

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]

↑ R v Farrah 2011 MBCA 49 (CanLII), per Chartier JA at para 7
↑ 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]

↑ see Guilty Plea
c.f. R v Liberatore, 2014 NSCA 109 (CanLII), per Fichaud JA at paras 9, 13
↑ R v Webster, 2008 BCCA 458 (CanLII), per Frankel JA, 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]

↑ R v Aisthorpe, 2006 NLCA 40 (CanLII), per Rowe JA
↑ R v O'Keefe (No. 2), 2012 NLCA 25 (CanLII), per Harrington JA 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]

Affiant Reviewing Applicant's Brief
Giving the factum or brief to the affiant to read is not impermissible however should be avoided where the factual inconsistencies may be used to undermine the witnesses credibility.^[2]

↑ R v Deveau, 2011 NSCA 85 (CanLII), per Fichaud JA
↑ R v Lajeunesse, Paris, 208 OAC 385; [2006] OJ No 1445; 2006 CanLII 11655 (ON CA), per MacFarland JA, at para 24 to 28 ("It would have been preferable had Crown counsel not supplied the factum to the main witness, particularly on the facts here where it would be argued that the factual inconsistencies undermined the credibility of the witness.")
R v Mahmood, 2011 ONCA 693 (CanLII), per Watt JA at para 63 ("No bright line rule prohibits a party from disclosing to a witness on a Garofoli application the arguments to be advanced in support of the application, and thus the thrust of the proposed cross- examination. Each ... case depends and must be decided on its own facts. What would be improper in one case may be entirely appropriate in another")

Charter Application to Evidence Collected in Foreign Countries

Actions of a foreign state outside of Canada cannot be subject to Charter review.^[1]

Proof of foreign law is a question of fact.^[2] The judge, in determining whether foreign law has been compiled with, may hear expert evidence from legal experts. The judge must not engage in interpreting the law themselves.^[3]

The extent to which the experts agree there will be a "strong presumption" that the propositions in agreement accurately represents foreign law.^[4]

↑ Schreiber v Canada, [1998] 1 SCR 841, 1998 CanLII 828 (SCC), per L’Heureux‑Dubé J J
↑ R v Guilbride, 2002 BCPC 254 (CanLII), per Arnold J at para 61
↑ Guilbride, ibid. at para 61
↑ Guilbride, ibid. at para 62
Re McDonald, 1935 CanLII 301 (NS CA), per Mellish J

Remedies

Charter remedies include: