STANDARD

  1. A lawyer who is retained must review the disclosure as soon as possible to determine whether there are grounds for making an application for a Charter remedy, pursuant to the Canadian Charter of Rights and Freedoms (“Charter”)1.
  2. If grounds exist for making a Charter application, the lawyer must make reasonable efforts to obtain instructions (preferably in writing) from the client regarding whether to make an Application. The obligation to assess a case for a Charter Application is a continuing one.

COMMENTARY

Jurisdiction

The primary remedy for a Charter violation is for the accused to make an Application to the trial court, pursuant to s. 24. Under s. 24, “Anyone whose [Charter] rights and freedoms…have been infringed or denied” may apply for a remedy to a court of “competent jurisdiction.2” A trial court, as a “court of competent jurisdiction,” may give an “appropriate and just” remedy (s.24(1)), or exclude evidence obtained in violation of the Charter if admission would bring the administration of justice into disrepute (s. 24(2)).3

All criminal trial courts, including trials before Provincial Court judges, are “courts of competent jurisdiction,” as defined by s. 2 of the Criminal Code for the purposes of granting s. 24 Charter remedies4. Section 24 does not confer on the courts new jurisdiction; those courts already had “jurisdiction conferred by a statute over the offences and persons, and power to make the orders sought.”5

On the other hand, the Supreme Court in Mills unanimously ruled that a justice at a preliminary inquiry was not a court of competent jurisdiction for the purpose of granting Charter remedies under s. 24. Their jurisdiction under what is now Part XVIII of the Criminal Code was limited to considering whether there is sufficient evidence to put the accused on trial. Notwithstanding that the rules for the admissibility of evidence apply at preliminary inquiries, there is no jurisdiction for a justice at a preliminary inquiry to consider whether evidence should be excluded under s. 24(2) as having been obtained in violation of the Charter.6

Courts have held that judges at extradition hearings are “courts of competent jurisdiction” for the purposes of s. 247; however, parole boards are not8.

Justices at bail hearings do not have Charter jurisdiction9.

A divided Supreme Court in R. v. Hape10 held that the Charter does not apply to Canadian police acting outside Canada unless the foreign jurisdiction consents to their enforcement jurisdiction. However, in Khadr v. Canada (Minister of Justice) the Court created an exception where action violate Canada’s international obligations.11

Lawyers should be careful to consider the availability of potential Charter applications that are specific to racialized clients, including:

  1. Racial Profiling, (see R. Dudhi, 2019 ONCA 665);
  2. Police authority to question12 individuals, (see R. v. Le,
    2019 SCC 34).

Failure to Bring a Charter Application may Have Unintended Consequences

The purpose of this standard may seem self-evident. After all, the failure to make a Charter Application, where there is evidence of a Charter breach, may prejudice the defence. This is particularly true in cases of “impaired over .08.”

To address the challenges posed by a large number of impaired driving offences, Parliament has, over the years, taken steps to simplify and streamline the trial process. One of those steps involved the introduction of evidentiary shortcuts into the Criminal Code. These shortcuts are now found in ss.320.31(1) of the Criminal Code (formerly 258(1)(c) and 258(1)(g) of the Code). They permit the Crown to establish an accused’s blood-alcohol concentration at the time of the alleged offence by filing a certificate recording the accused’s breath readings.

To ensure that those evidentiary shortcuts yield reliable evidence, Parliament built a number of preconditions into the scheme—the most notable being that the breath samples have to be taken within a prescribed period of time following the alleged offence.13

If there are issues related to the proof of the evidentiary preconditions, the demand for breath (or blood) samples may be unlawful. For example, a demand made to provide a breath sample into the approved screening device without the required reasonable suspicion under section 254(2) is a warrantless and unreasonable search, pursuant to s. 8 of the Charter. However, if the lawyer chooses not to bring a Charter Application at trial, the Crown does not have to prove that the demand was a “lawful demand” before it can take advantage of the evidentiary shortcuts: Rilling v. The Queen14. Rilling has been applied in Nova Scotia, and remains good law15.

Justice Moldaver places the practical importance of the Charter Application in context at paragraph 11 of R. v. Alex:

When ss. 258(1)(c) and 258(1)(g) are analyzed in accordance with the modern principles of statutory interpretation, I am satisfied that the Crown need not prove that the demand was lawful in order to take advantage of the shortcuts. If the taking of the samples is subjected to Charter scrutiny, and the evidence of the breath test results is found to be inadmissible by virtue of ss.8 and 24(2) of the Charter, that will end the matter. Resort to the evidentiary shortcuts will be a non-issue. On the other hand, if the taking of the samples is subjected to s.8 Charter scrutiny, and the breath test results are found to be admissible in evidence—either because no. s.8 breach occurred or because the evidence survived s. 24(2) Charter scrutiny—the shortcuts should remain available to the Crown. [emphasis added].16

STANDARD

2. A lawyer must provide reasonable notice of a Charter Application to the Crown and to the Court.17

COMMENTARY

Reasonable Notice

Where a Charter challenge involves an attack on the constitutional validity of a law, the applicant must comply with statutory notices to be given to the Attorneys General of Canada, or the Province, or both.18 In Nova Scotia, the notice period is 14 days.19

If the lawyer files his or her Charter Application in Provincial Court, or if the Application is to exclude evidence pursuant to section 24(2) of the Charter, the applicant must file a Notice of Application with the Court, and serve it on the respondent, at least 7 days prior to the date of the first appearance for the application20. Pre-trial applications are to be heard 60 days prior to the beginning of the trial, unless the Court orders otherwise.21

The purpose of notice of a Charter Application has been summarized in R. v. Floate, 2001 ABPC 250, at paragraph 7:

“The purpose of notice of a Charter Application is to ensure a fair trial and an expeditious trial. It is to allow the Crown an opportunity to marshal its evidence and ask questions of its witnesses to deal with the Charter issue. It is to allow them an opportunity to call evidence relating to the Charter they would normally have called. It is also to give the Court notice of the issue so it can view the evidence as it is presented knowing the issue and to be prepared by reading cases beforehand that deal with the issue and which counsel will rely upon and in that way expedite the trial process rather than delay by adjournments to review evidence and cases22.”

Justice Jamie Campbell commented on the purpose of the notice period set out in the Provincial Court Rules in R. v. Doncaster.23 Their purpose is to prevent “litigation by ambush,” by permitting both parties with an opportunity to respond to the application, file the appropriate materials, and avoid unnecessary adjournments.24

The Alberta Court of Appeal in R. v. Dwernychuk described at paragraph 12 the benefit notice has on the Court hearing the Application:

“It enables the judge, with the help of both counsel, to begin to read relevant cases and to put his or her thoughts in order, rather than becoming aware of the existence and nature of a Charter issue only after he or she has heard the evidence without realizing what he or she should be listening for and without being able to exercise his or her limited right to ask questions of witnesses. If such notice is given, the judge is better able to reach a rational decision which is based on a calm reading and serene appreciation of the law, rather than having to reach a decision, perhaps without due consideration, because of the inexorable pressure of his or her docket.”25

It should be kept in mind that Charter issues may sometimes arise midtrial. In those circumstances, notice to the other party will not be possible. Both parties may benefit from requesting that the trial judge hear closing arguments in writing. That way, the parties will have the best opportunity to address the Charter issues.

Sufficiency of Notice

Sufficient notice means:

  1. It is provided in writing to the Crown and to the Court;
  2. It lists the sections of the Charter alleged to have been breached;
  3. It describes the nature of the Charter violation;
  4. It provides for an evidentiary basis for the Charter violation, including an outline of the facts grounding the application. It must be in sufficient detail to disclose a breach, allow a response to the allegations, and allow the Court to determine if it should hear evidence on the application.26
  5. It should outline the remedy being sought, including a list of evidence the Applicant seeks to exclude, if applicable; and
  6. A list of cases to be relied on by Applicant in support of the Application.27

Consequences of Insufficient Notice

If an Applicant fails to file sufficient notice of an Application, several alternatives can reasonably be anticipated:

(1) The application could proceed, with minimal notice to the Crown and to the Court, or in the absence of the supporting materials required by the Rules of Court and the common law. That would give the Applicant the “tactical advantage of surprise, which is one of the very things that the rules are intended to prevent.”28

(2) The Crown could be granted an adjournment. Courts have a discretion to grant or deny requests for an adjournment. While a court is arguably without jurisdiction to hear and determine a Charter Application unless the notice has been properly provided, it has the discretion to adjourn the proceedings in order to facilitate belated compliance with that requirement. That is another thing the rules are intended to prevent.

In deciding whether to grant an adjournment, Court must bear in mind the potential importance of Charter Applications. A litigant’s right to make such an application in a trial forum will not29 be denied lightly30. However, the legal environment has changed considerably since the decision in the early Charter notice cases, like Kutynec. Both the common law, regulatory provisions, and Rules of Court governing Charter Applications unambiguously dictate that proper notice be given. Moreover, the harmful effects of delay are manifesting themselves in increases to lead times and length of proceedings.

(3) The Application could be dismissed because of untimely or inadequate notice.31

Notes

1 NSBS, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2012, rule 3.1-2.

2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, s. 24(1).

3 Ibid., s. 24(2).

4 R. v. Mills (1986), 52 C.R. (3d) 1 (S.C.C.).

5 Ibid., at p. 19. A Provincial Court judge therefore has no Charter jurisdiction respecting an indictable offence before election. See R. v. Wilson (1997), 121 C.C.C. (3d) 92 (N.S.C.A.).

6 R. v. Mills, supra note 4; R. v. Hynes (2001), 47 C.R. (5th) 278 (S.C.C.).

7 United States v. Kwok, [2001] 1 S.C.R. 532. Arbour J. for the Court confirmed jurisdiction under the new Extradition Act over matters relevant to extradition hearings. These include s. 7 rights, but not s. 6 mobility rights which arise under the Minister’s surrender jurisdiction.

8 Mooring v. National Parole Board (1996), 45 C.R. (4th) 265 (S.C.C.).

9 R. v. Menard (2008), 63 C.R. (6th) 211 (B.C.C.A.).

10 R. v. Hape (2007), 47 C.R. (6th) 96 (S.C.C.).

11 Khadr v. Canada (Minister of Justice) (2008), 56 C.R. (6th) 255 (S.C.C.). See too Canada v. Khadr, [2010] 1 S.C.R. 44 (S.C.C.).

12 The Court stated the police have no legal authority to question people who are doing nothing wrong, nor demand their IDs. Both the majority and dissent recognized that a person may experience a police interaction differently due to their race and existing relations between the police and various racial groups. The majority also accepted a position advanced by us stating even a short interaction with the police can have a significant impact on an individual and can be considered a form of detention.

13 Other preconditions include that the samples have to be provides in an approved container or instrument, and the instrument has to be operated by a properly qualified technician, and the demand has been made upon “reasonable grounds.”

14 Rilling v. The Queen, [1976] 2 S.C.R. 183 (S.C.C.); R. v. Alex, 2017 SCC 37; R. v. Bernshaw, [1995] 1 S.C.R. 254 (S.C.C.), at para. 42; and R. v. Charette, 2009 ONCA 310.

15 R. v. MacLennan, [1995] N.S.J. No. 77 (N.S.C.A.), at para. 58.

16 R. v. Alex, supra note 13, at para. 11.

17 R. v. Charette, supra note 13, at para. 45; R. v. Gundy (2008), 231 C.C.C. (3d) 26 (Ont. C.A.), at paras. 19-24 and 50; R. v. Dwernychuk, infra, note 21, at paras. 12-14.

18 Constitutional Questions Act, R.S.N.S 1989, c. 89, ss. 10(2).

19 Ibid., at s. 10(4). Provincial statutory notice requirements have been held to be constitutionally within the provincial power over the administration of justice under section 92(14) of the Constitution Act of 1867; McGillivary v. Manitoba (1989), 51 C.C.C. (3d) 60 (Man. Q.B.).

20 Provincial Court Rules, s. 3.1(1).

21 Ibid., s. 2.4(1). See also the Provincial Court Practice Directive No. 2.

22 R. v. Floate, 2001 ABPC 250, at para. 7. See also: R. v. Mousseau, 2002 ABQB 150, at para. 8; R. v. Dwernychuk (1992), 77 C.C.C. (3d) 385 (Alta. C.A.)., R. v. McNab, 1999 ABPC 85, at paras 11 and 12; R. v. Doncaster, 2013 NSPC 13, at para. 9; R. v. Blom (2002), 6 C.R. (6th) 181 (Ont. C.A.); R. v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.), at para. 9.

23 R. v. Doncaster, supra note 21.

24 Ibid., at para. 9.

25 R. v. Dwernychuk, supra note 9, at para. 12.

26 If the Applicant fails to advance a sufficient basis for the Charter Application, the application may be dismissed without hearing evidence: R. v. Kutynec, supra note 9, at paras. 21 and 22.

27 See Provincial Court Rules Practice Direction— “Charter Applications,” (PC Rule 2). See also: R. v. Dwernychuk, supra note 21, at paras. 25-28; R. v. Kutynec, supra note 21, at para. 36;

28 R. v. Doncaster, supra note 9, at para. 14.

30 R. v. Loveman (1992), 71 C.C.C. (3d) 123 (Ont. C.A.).

31 R. v. Kutynec, supra note 21, at paras. 21 and 22.

Approved by Council on January 26, 2024.