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The Canadian Charter of Rights and Freedoms: Basic Principles in Criminal Law

29th December 2009
By Robert Bell in Law
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The Canadian Charter of Rights and Freedoms was created by the Trudeau administration and given constitutional status as part of the Constitution Act of 1982. The Charter contains a list of rights and freedoms that govern the relationship between every individual Canadian and the government of Canada.

Criminal defence lawyers are generally experts in dealing with Charter issues, especially issues pertaining to those rights in sections 1-5 and the enforcement provisions in section 8. This is because the individual rights guaranteed under the Charter are the most powerful weapons criminal defence lawyers have when representing their clients in court.

Your rights under the Canadian Charter of Rights and Freedoms inform almost every step of your interaction with the criminal justice system, from the offence you are arrested for, to every stage of your arrest, to every stage of your trial. Your criminal defence lawyer will analyze every aspect of the charge against you to see if your Charter rights have been infringed.

Your defence lawyer may argue that the offence you are being charged with is unconstitutional since it infringes one or more of your rights or freedoms. These kinds of constitutional challenges are less common; however, they do occur. The constitutional challenge to the laws against hate speech in R. v. Keegstra mentioned above is one example. The Charter has also been used to challenge laws against simple possession of marijuana, the law against gay marriage, and the law against abortion. Currently, Toronto criminal lawyer Alan Young is mounting a constitutional challenge to the law against soliciting for the purposes of prostitution. These challenges are not always successful (e.g., hate speech, possession of marijuana); however, they have sometimes been successful and caused radical changes in Canadian law (e.g., gay marriage, abortion). To determine whether to challenge the constitutionality of the offence you have been charged with, your criminal defence lawyer will consider whether the crime you have been charged with violates your rights in groups 1-3 (the fundamental freedoms, democratic rights, and mobility rights) as well as group 5 (your equality right). If the court agrees that the law you are being charged under violates the Charter, the law will be declared invalid. The charges against you will no longer exist, since you will not have broken any valid Canadian law.

Your criminal defence lawyer is much more likely to use the Charter to argue that the conduct of the state in investigating, arresting, or prosecuting you infringed your legal rights contained in group 4, which contains ss. 7-14 of the Charter. They provide a number of rules that govern the relationship between the individual and the criminal justice system:

1. Section 7 states that every person has the right to life, liberty, and security of the person. Section 7 also states that no person can be deprived of life, liberty, or security of the person except in accordance with the principles of fundamental justice;
2. Section 8 states that everyone has the right to be secure against unreasonable search or seizure;
3. Section 9 states that everyone has the right not to be arbitrarily detained or imprisoned;
4. Section 10 lists a number of rights which every individual has upon being arrested or detained;
5. Section 11 lists a number of rights which every individual has upon being charged with a criminal offence;
6. Section 12 states that everyone has a right to be free from cruel and unusual punishment;
7. Section 13 states that when a witness testifies in court that evidence cannot be used against them in a separate proceeding. This is a very limited and specific right against self-incrimination; and
8. Section 14 says that every person has a right to have a translator present at every proceeding against them if necessary.
For more information on any of the rights listed above, please see our separate blog entries which deal with each right separately and in detail.

If your criminal defence lawyer feels that your legal rights under the Charter have been infringed, they can make an application to the court for one of two remedies available under s. 24 of the Charter. First, your defence lawyer can apply to have the court stop the proceedings against you; this is known as a "stay in proceedings" Alternatively, if your legal rights were infringed during the investigation against you, your criminal defence lawyer can apply to the court to have specific evidence excluded from your hearing. For more information on remedies under the Charter, please see our blog on s. 24.

Criminal defence lawyers invoke the protection of the Charter by making a "Charter application". A Charter application occurs during the course of a trial. The rules governing criminal procedure create a special timeline for Charter application. Moreover, Charter applications must be made according to a precise format, must be accompanied by case law and other documents, and must be filed at the court in a specific manner. It is beneficial to hire a criminal defence lawyer to help you fight any charges against you because they have the particular expertise to expose possible Charter violations and to make formal Charter applications to the court.Kostman Pyzer is a criminal defence law firm serving clients in the Greater Toronto area and elsewhere in the province of Ontario since 1983. Not all Ontario lawyers are created equal. We are creative, experienced and hardworking. We pride ourselves on our aggressive representation of clients and our relentless commitment to success. Visit online today.
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