The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms of all Canadians (and non-citizens within Canada) subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Common Charter Rights which are engaged in Criminal Offences are found under the Charter heading “Legal Rights”, and include:

Section 7 – The Right to Life, liberty and security of person

Section 8 – The Right against unlawful Search or seizure

Section 9 – The right against arbitrary or unlawful Detention or imprisonment

Section 10(a) – The Right to be Informed of Reasons for Arrest

Section 10(b) – The Right to be given an opportunity to Retain and instruct Counsel

Section 10(c) - Right to Habeas Corpus

Section 11(a) - Right to be Informed of the Offence

Section 11(b) - Right to be Tried Within a Reasonable Time

Section 11(c) - Right Not to be Compelled to be a Witness

Section 11(d) - Right to be Presumed Innocent

Section 11(e) - Right not to be Denied Reasonable Bail

Section 11(f) - Right to Trial by Jury

Section 11(g) - Right not to be Found Guilty Unless Action Constituted an Offence

Section 11(h) - Right not to be Tried Again

Section 11(i) - Right to Lesser Punishment

Section 12 – Right against cruel and unusual Treatment or punishment

Section 13 – Right against Self-crimination

Section 14 – Right to an Interpreter

If you or a loved one feel that their rights were breached during an arrest or an investigation, then this information could have a significant impact on the results of your criminal trial.

A commonly engaged Charter right is Section 8. Section 8 protects people and not places. In particular, it protects a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This includes information which tends to reveal intimate details of the lifestyle and personal choices of the individual: R. v. Plant, [1993] 3 S.C.R. 281.

The Supreme Court of Canada has held that for a search to be reasonable it must be (a) authorized by law; (b) the law itself must be reasonable; and (c) the manner in which the search was carried out must be reasonable: R. v. S.A.B., 2003 SCC 60.

An assessment of the constitutionality of a search and seizure, or of a statute authorizing a search or seizure, must focus on the "reasonable" or "unreasonable" impact on the subject of the search or the seizure. The guarantee only protects a reasonable expectation of privacy. A reasonable expectation of privacy is to be determined on the basis of all the circumstances. If an accused person establishes a reasonable expectation of privacy, the inquiry must then proceed to determine whether the search was conducted in a reasonable manner: R. v. Edwards, [1996] 1 S.C.R. 126; Hunter v. Southam Inc., [1984] 2 S.C.R. 145.

A distinction must be drawn between seizures in the criminal or quasi-criminal context to which the full rigours of the criteria in Hunter v. Southam Inc. will apply, and seizures in the administrative or regulatory context to which a lesser standard may apply, depending upon the legislative scheme under review: British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3.

If the court finds that a Charter Right has been breached, then a  further analysis is required under s24(2) of the Charter to understand whether the exclusion of evidence should occur. The test for exclusion of evidence pursuant to s. 24(2) was laid down in R. v. Collins, [1987] 1 S.C.R. 265.

A Section 24(2) analysis requires that three sets of factors be considered.

  • First, the court must determine whether admission of the evidence will affect trial fairness. If so, the admission of the evidence would tend to bring the administration of justice into disrepute. The evidence must be excluded, without reference to the other factors (R. v. Stillman, [1997] 1 S.C.R. 607).
  • The second set of factors concerns the seriousness of the Charter violation (e.g., whether it was committed in good faith, or was motivated by urgency, and whether it could have been obtained without a Charter violation).
  • Third, the court must look at the disrepute to the justice system, from excluding evidence essential to substantiate the charge where the Charter breach was trivial: R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30.

As a first step in the trial fairness analysis it is necessary to classify the type of evidence in question. If the accused was not compelled to participate in the creating or discovery of the evidence, it will be classified as “non-conscriptive”. Admission of non-conscriptive evidence will rarely operate to render the trial unfair. However, the opposite is true of “conscriptive” evidence. When an accused in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body (as in participation in a line-up) or the production of bodily samples, the evidence obtained is classified as “conscriptive”. In the case of statements, this includes derivative evidence. Since the admission of conscriptive evidence would render the trial unfair, it must be excluded unless the Crown establishes, on a balance of probabilities, that the evidence would have been discovered by alternative non-conscriptive means: R. v. Stillman, supra.

Section 24(2) does not apply to evidence gathered abroad by foreign officials who are not subject to the Charter, but if the admission of such evidence would result in an unfair trial it may nevertheless be excluded pursuant to the fair trial guarantees of ss. 7 and 11(d): R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Terry, [1996] 2 S.C.R. 207. However, the Charter may apply, and s. 24(2) may properly be engaged, when Canadian officials have investigated an offence against Canadian law in a foreign state, and have gathered evidence there for submission to a Canadian court: R. v. Cook, [1998] 2 S.C.R. 597.

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