A Charter argument is made when it is believed that one or more rights as guaranteed by the Charter of Rights and Freedoms were infringed in the administration of justice.
Common Charter arguments in criminal proceedings include the right to be secure from unreasonable search and seizure (s. 8) and the right to retain counsel without delay and to be informed of this right (s. 10(b)). A Charter violation can bring about a remedy. For instance, If it has been determined that there was an infringement of the right to be tried within a reasonable time (s. 11(b)), the trial judge might “stay” the charge (which means the case ends).
However, not every Charter infringement will bring about a remedy. Section 24 governs the enforcement of Charter rights. Upon application to the court, any remedy deemed just and appropriate in the circumstances may be awarded by a court of competent jurisdiction (s. 24(1)). Additionally, if evidence was obtained in a manner that infringed or denied any Charter rights, the evidence may be excluded from proceedings if “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” (s. 24(2)).
What would bring the administration of justice into disrepute?
R v Grant is the leading case on section 24(2) which outlines a three-part test. First, the seriousness of the state’s conduct must be examined. Next, the impact of the breach on
the Charter protected interests of the accused must be assessed. Lastly, this must be weighed against society’s interest in the adjudication of the case on its merits.
A Charter argument is made by filing a Notice of Application and constitutional issue with the Crown Attorney’s office. The Application must be made in accordance with the Criminal Rules, although, a judge may still allow an Application to proceed if the rules have not been adhered to. If it is to be argued that the law pertaining to the charge is unconstitutional, the Crown still needs to be notified as well as the Attorney General for Ontario. This must occur at least 15 days before trial. If you are looking for eminent criminal lawyers in Ontario, make sure to check out the webpage, smordinlaw.com, to help you present your case in a court.