Charter application Lawyers in Canada

Section 24(1) says that anyone whose rights or freedoms, set out in the Charter, have been infringed or denied may apply to a court of competent jurisdiction. The person applies for such remedy as the court considers appropriate and just in the circumstances. Two points follow from those words. The application comes from the person whose rights were affected, and the choice of remedy is left to the court. Section 24(1) does not list the remedies.

Section 24(2) deals with evidence. It applies where a court concludes that evidence was obtained in a manner that infringed or denied any right or freedom set out in the Charter. In that case, the evidence shall be excluded if it is established that, having regard to all the circumstances, admitting it in the proceedings would bring the administration of justice into disrepute.

That sentence has two parts. The court first has to reach a conclusion that a right or freedom was infringed or denied. It then looks at all the circumstances and asks whether admitting the evidence would bring the administration of justice into disrepute. Section 24(2) states both parts. It does not say how a court should weigh the circumstances in a particular case, and this page does not try to.

The Charter has a group of legal rights, and several of them come up for a person who is arrested, searched, detained or charged. A lawyer can explain which one, if any, fits the facts of a given case. These are the words the Charter uses.

Section 7 says everyone has the right to life, liberty and security of the person and the right not to be deprived of them except in accordance with the principles of fundamental justice. Section 8 says everyone has the right to be secure against unreasonable search or seizure. Section 9 says everyone has the right not to be arbitrarily detained or imprisoned.

Section 10 applies on arrest or detention. A person has the right to be informed promptly of the reasons, and the right to retain and instruct counsel without delay and to be informed of that right. Section 10 also gives a right to have the validity of a detention determined by way of habeas corpus, and to be released if the detention is not lawful.

Section 11 applies to any person charged with an offence. Among the rights it lists are the right to be tried within a reasonable time, the right not to be compelled to be a witness in proceedings against that person in respect of the offence, the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, and the right not to be denied reasonable bail without just cause. Section 12 says everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Section 24 names one remedy and leaves the rest open. The named remedy is the exclusion of evidence under section 24(2), when the test in that subsection is met. For every other case, section 24(1) gives the court the power to grant the remedy it considers appropriate and just in the circumstances.

The wording of section 24 does not say that a breach of a right ends a charge, and it does not say that a breach always leads to a remedy. The court has to find that a right or freedom was infringed or denied before section 24(2) applies, and then it has to apply the test the subsection sets. What the court orders depends on the evidence and the submissions made to it. No page can predict that for a person's own case.

A person who raises a Charter issue is still presumed innocent. The Charter also protects the right of a person who is charged not to be compelled to be a witness in proceedings against that person in respect of the offence, and that right stays in place while a Charter application is made.

In Ontario, every charge under the Criminal Code, the Controlled Drugs and Substances Act, the Youth Criminal Justice Act and most other federal statutes starts in the Ontario Court of Justice, and about 95% are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones, such as murder, manslaughter, aggravated assault, sexual assault, firearm offences, robberies, home invasions, criminal organization offences and drug trafficking. Trials in that court are by a judge alone or with a jury.

Section 24(1) sends an application to a court of competent jurisdiction. Which court that is, and how and when the application is made, depends on the case and on the court where the charge is. A lawyer can explain that for a given charge.

A person who is convicted can appeal. In Ontario, an appeal from a conviction on indictment goes to the court of appeal. Under section 675 the person may appeal as of right on a ground that involves a question of law alone, and with leave on questions of fact or mixed law and fact. An appeal against sentence also needs leave. A summary conviction appeal goes to the Superior Court of Justice, sitting in the region, district or county where the case was decided. Sections 812 and 813 set that out.

Section 10 of the Charter gives a person on arrest or detention the right to retain and instruct counsel without delay and to be told of that right. A lawyer can read the disclosure, explain which Charter rights may be in issue and say whether an application is worth bringing. Nothing on this page ranks or recommends any lawyer.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer. A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city.