Criminal Law Notebook

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
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 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" (ie. 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]

  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.[10] The opposing party must be given notice of the motion and a chance to challenge the evidence as well as present evidence as well.[11]

Relief under the Charter must flow from a motion, it is not automatic.[12] The motion must be based on evidence before the court.[13]

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.[14]

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.[15]

  1. ↑ R v Charette, 2009 ONCA 310 (CanLII) at paras 48 to 49
  2. ↑ R v Travers 2001 NSCA 71 (CanLII)
  3. ↑ R v Youngpine 2009 ABCA 89 (CanLII)
  4. ↑ R v Hynes, 2001 SCC 82 (CanLII), [2001] 3 SCR 623
  5. ↑ R v Rahey, 1987 CanLII 52 (SCC), [1987] 1 SCR 588
  6. ↑ Hynes
  7. ↑ R v Blencowe, 1997 CanLII 12287 (ON SC)
  8. ↑ R v Lloyd, 2016 SCC 13 (CanLII) at para 19
  9. ↑ R v Tan, 2014 BCCA 9 (CanLII)
  10. ↑ R v Currie, 2008 ABCA 374 (CanLII), per Côté JA, at para 39
  11. ↑ Currie, ibid. at para 39
  12. ↑ Currie, ibid., at para 39
  13. ↑ Currie, ibid. at para 39
  14. ↑ 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.")
  15. ↑ R v Deveau, 2011 NSCA 85 (CanLII), per Fichaud JA

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]

  1. ↑ R v Bains, 2010 BCCA 178 (CanLII) at para. 69
    R v Mehan, 2017 BCCA 21 (CanLII)
  2. ↑ R v Hamdan, 2017 BCSC 562 (CanLII)
  3. ↑ R v Mehan, 2017 BCCA 21 (CanLII) at paras. 44-47
  4. ↑ R v Mastronardi, 2015 BCCA 338 (CanLII) at para. 63
  5. ↑ R v McDonald, 2013 BCSC 314 (CanLII) at para. 21
  6. ↑ R v Vukelich, 1996 CanLII 1005 (BC CA), [1996] BCJ No. 1535; 108 CCC (3d) 193 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) at para 38
  7. ↑ R v Sutherland, 2017 BCPC 42 (CanLII) at para 11
  8. ↑ 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 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]


  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, supra 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. ↑ R v Jordan, 2016 SCC 27 (CanLII)
  6. ↑ 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
  7. ↑ R v Hardenstine, 2010 BCSC 899 (CanLII), paras 27, 34, referring to R v Collins
  8. ↑ 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 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.[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.

  1. ↑ R v Edwards, 1996 CanLII 255 (SCC), [1996] 1 SCR 128
    R v Rahey, 1987 CanLII 52 (SCC), [1987] 1 SCR 588, at p. 619
  2. ↑ 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.)
  3. ↑ See R v Farrah (D.), 2011 MBCA 49 (CanLII) at paras 18 to 25
  4. ↑ R v Pasian, 2015 ONSC 1557 (CanLII) at para 17
    R v Logan, 2005 ABQB 321 (CanLII) at para 81
  5. ↑ R v Jones, 2017 SCC 60 at para 32
  6. ↑ Jones, ibid.
  7. ↑ R v Sandhu, (1993) 28 BCAC 203 (BCCA)
  8. ↑ R v Ramos, 2011 SKCA 63 (CanLII), 371 Sask. R. 308
  9. ↑ YCJA s.2 defines "young person" as age 12 to 18

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:

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]

  1. ↑ R v Dell, 2005 ABCA 246 (CanLII) at para 29
  2. ↑ R v McInnis, 1999 CanLII 2671 (ONCA)

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]

  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)
    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, supra 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.), 1994 CanLII 1165 (ON CA) - 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.)(*no CanLII links) p. 9-10
  2. ↑ R v Smith, 2004 SCC 14 (CanLII), [2004] 1 SCR 385, at para 39
  3. ↑ R v Loveman, 1992 CanLII 2830 (ON CA), (1992) 71 CCC (3d) 123

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]

  1. whether or not there is any statutory rule or practice direction requiring notice;
  2. the notice which was given to the Crown;
  3. the point during the trial proceedings when the appellants’ counsel first indicated he intended to bring a Charter motion;
  4. 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
  5. 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]

  1. ↑ R v Henneberry, 2015 NSPC 96 (CanLII) - re provincial court has authority even if not specifically mentioned in the Rules of Court
    R v Bugden, 2015 CanLII 27426 (NL PC) at para 27
  2. ↑ R v Loveman, 1992 CanLII 2930 (ON CA), [1992] OJ 346, per Doherty JA
  3. ↑ R v Bugden, 2015 CanLII 27426 (NL PC)
    R v Gauvin, 2014 ONSC 4108 (CanLII)
  4. ↑ Loveman, supra
  5. ↑ 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.")
  6. ↑ 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]

  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)

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]

  1. ↑ Schreiber v Canada, [1998] 1 SCR 841, 1998 CanLII 828 (SCC)
  2. ↑ R v Guilbride, 2002 BCPC 254 (CanLII) at para 61
  3. ↑ Guilbride, ibid. at para 61
  4. ↑ Guilbride, ibid. at para 62
    Re McDonald, 1935 CanLII 301 (NS CA)

Remedies

Charter remedies include:

See Also

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