Charter of Rights and Freedoms

Contact Trial Criminal Law Procedure Evidence Charter of Rights Civil
Menus:

.

Background
The Charter of Rights and Freedoms was enacted by the British legislature when the Canadian Constitution was repatriated in 1982. This part of Canada's Constitution protects members of the public from certain government actions. The Charter does this by nullifying laws that conflict with it while also excluding evidence that was obtained in violation of its protections.

This page will focus on the criminal law consequences of The Charter. In order to exclude evidence you must prove that, more likely than not, the government violated The Charter and evidence was obtained as a result. The following are the Charter Rights most often violated during a criminal investigation. The only Charter violations an accused person can use at trial are violations against their own rights. So you cannot use the fact that police unconstitutionally searched your friend's car and found evidence against you.


Notice Requirement
If you plan to allege any charter violation against the crown you must give at least 15 days advance notice. See section 109 of the Judicature Act along with Form 4 of the Rules of Ontario Provincial Court.

Section 8. Protection From Unreasonable Search and Seizure
The definition of what it takes to make a search "unreasonable" depends on the level of privacy a reasonable person would expect in the given situation. In your home you have far more protection from police search than in your car. (A trailer or RV can count as a home. See Breaking Bad season 3) In a public place you have a very low expectation of privacy. Your protection from unreasonable search also protects your possessions, to an extent.

R. v. Collins states that a search must be authorized by law in order to be reasonable. It also states that the search must be carried out in a reasonable manner (See R. v. Ward where the Vancouver Police performed a strip search in hopes of finding a pie). A warrantless search is usually a violation of you rights, there are exceptions:
1) there wasn't enough time to obtain the warrant,
2) the police had probable grounds to arrest you before the search,
3) statutory authority (example: section 10 of the Narcotics Control Act, parts of the Combines Investigation Act, section 107(1) of the Liquor & Gaming Act etc.).
Where a search falls under 1) or 2) the burden is on the crown to prove that the search fell within the legal exception.
You can be pat down for weapons if the police have reasonable suspicion to think you are involved in voilent criminal activity (this standard of proof is a lower than probable grounds to arrest). If evidence, other than weapons, is discovered during this pat down it would likely be excluded at trial. If you give informed consent to the police there is no search.

R. v. MacDonald teaches us an important lesson. An officer discovered a bulge in a coat pocket while patting down Mr.MacDonald for weapons. The officer smelled the pot and suspected that it was in the pocket but he could not see it. The officer did not have grounds to arrest, only to pat him down for weapons. Mr. MacDonald should have just done nothing and he would have been fine. Instead he took the pot out because the officer confronted him about it.

If the search occurs after a lawfull arrest based on probable grounds then the objects searched or seized must be 'incident' (closely connected) to the arrest. R.v. Mann describes searches "incident to arrest" as requiring a reasonable basis of uncovering evidence of the crime, or to preserve possible evidence in anticipation of obtaining a warrant. R. v. Caslake states that an otherwise lawful search can be unreasonable because the purpose for which it was done was unrelated to the circumstances of the arrest.

The police can lawfully review a cell phone found on an arrested suspect if there is a reasonable chance of finding evidence of the crime the suspect was arrested for. They are not allowed to copy its entire contents without a warrant. Encryption of digital data can protect it from law enforcement. As of 2014 it appears the OPP could not crack 128-bit encryption using PGP. More recently the RCMP cracked a PGP using blackberry, likely by having a program guess the password. Deleted files may be recoverable by police unless the file's location on the hard drive is overwritten.

A 911 call originating from a residence often allows police to enter the home because of their duty to preserve life. Police will enter a dwelling even when the caller hangs up before speaking to the 911 operator. When police respond to 911 calls "the intrusion must be limited to the protection of life and safety; the police do not have further permission to search premises or otherwise intrude on a residentís privacy or property". The police can only search a house for a wanted suspect if they have probable grounds to believe the suspect will be found there and they announce their presence. In these cases the police should usually have two warrants: one for the arrest and another to search the home for the person. See R. v. Feeney. Warrants are not necessary when police are in hot pursuit of the suspect.

Finally, breach of your Section 8 protections by any government agency gives you a cause of action (potential lawsuit) to recover damages. While this is also true for other Charter Rights the common law has existing claims (like false imprisonment) that make resort to analogous Charter Rights (like s.9 protection from arbitrary detention) unnecessary.

Section 8 and Impaired Driving or Refusing a Breathalyzer
When the police take a roadside breath sample it is considered a search. The police must have probable grounds for beleiving the driver recently drank. If the police do not observe blood shot eyes, or open alcohol in the car, or smell alcohol then probable grounds may be absent. In such cases the results of the breathalyzer can be excluded. When the police do not have probale grounds to demand the roadside breathalyzer then it may be better to refuse if you are intoxicated. This is because isn't illegal to refuse when the demand is improper. If, after an improper demand, you accept the test and fail, the roadside breathalyzer result (and later tests at the police station) may, despite the unreasonable search, be admitted at trial.

Section 9. Protection From Arbitrary Detention
It is often difficult to decide when exactly an encounter with police becomes a detention. Clearly once a person is arrested they are detained. A traffic stop would also count as a detention because you cannot leave. When the police question you on the street it might be considered a detention. If the police ever stop you for questioning your first words should be "May I leave?". Once the police say "No" the fact of the detention follows. This is important because being detained gives you additional rights:
1) the police must always tell you the reason that you are being detained (assuming it is not obvious).
2) In order to stop a person for questioning prior to any grounds for arrest the police must have "reasonable suspicion" that the person is involved in a crime. The burden is upon the crown to prove the facts required to support reasonable suspicion (assuming the defence already proved the detention).
3) Section 10b) right to counsel is triggered upon detention (see below).

R. v. Chehil states that the exercise of your right to remain silent, leave the scene, or to request the advice of counsel cannot ground any reasonable suspicion to stop. The police have the power under Ontario's Highway Traffic Act to stop vehicles at random. R. v. Ladouceur sets limits on this power: "Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds". These limits are critical to preventing the use of this power in criminal investigations.

In order to get a better idea of what "reasonable suspicion" means compare the following cases: R. v. Chehil and R. v. Zhou. In the first case the police had the following indications of drug trafficking: one way ticket, bought right before the flight, paid in cash, travelling alone, with one checked bag. These facts were sufficient to meet the reasonable suspicion standard, which in turn, let the police dog sniff the bag. In the second case the police had only the following indications of drug trafficking: ticket bought last minute, paid in cash, and a private cabin purchased on the train. These facts were insufficient to meet the reasonable suspicion standard. The stopping of the accused and all the evidence (24 keys of blow) subsequently obtained was excluded at trial. These cases show that the facts, as known to the police, are what matter to this determination.

Section 10b) Right to Counsel Upon Detention
Once you are detained by the police section 11a) states that you must be given the reason for the detention as well as be informed of your right to retain and instruct counsel without delay. One should always protect oneself by exercising the right to contact counsel. Do not give up until you are satisfied with the advice given. Communications with counsel in private are protected by the law of privilege and cannot be monitored by government authorities.

Section 11b) Right to a Speedy Trial
The actual right is "to be tried in a reasonable time". The time period that matters is between the laying of the charges and the end of the trial when the verdict is delivered. Unfortunately the government can extent the time to trial to 14 months for even trivial matters. The only available remedy under s.24(1) is a stay of charges to prevent further delay and infringement of this right.

The maximum allowable time in provincial court is between 8-10 months as set down in R. v. Morin. More complicated cases and those requiring many hearings are allowed more time. If a case involves a preliminary inquiry then the range is 14-18 months. Any restrictive conditions placed on the accused (such as denial of bail, house arrest, license suspension) will shorten the allowable time to trial. Any decay in the quality or accuracy of the evidence will also shorten the time. Memories fade, and become less reliable.

Each court has a different time limit due to different local crime rates and funding levels. Time delays caused by the accused, such as requested adjournments, do not count towards the time limit. Extra time given to the accused to review a late evidentiary disclosure would be attributed to the crown and would count. To prove which adjournments count against whom the defence must order transcripts for every court appearance where the trail date was pushed back later. In Hamilton these transcripts can be purchase at the Court's Record Offices; one for provincial cases another for criminal cases (Rooms 408 & 221 respectively). The price is calculated per page of transcrit recorded.

Section 13) Protection From Self-Incrimination
The accused can never be called to testify by the crown. Otherwise, Canadian witnesses have no right to refuse to answer questions that incriminate them in Court. Section 13 protects a witness in one trial from having their evidence used against them in a different trial. Say Tony is charged with murdering Rat. At Tony's trial Pasquale testifies that he alone killed Rat and gives the exact location of Rat's corpse which he dumped into the harbor. The Charter protects Pasquale from having his testimony used to charge him with murder. It also protects Pasquale from any evidence gained as a result of his testimony, such as Rat's body. This additional evidence is termed derivative because Pasquale's testimony caused it to be collected. The derivative evidence could still be used against Tony.

This protection does not extend to prosecutions for perjury or giving contradictory evidence.