Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is part of Canada's Constitution. It guarantees a set of fundamental rights — including legal rights for anyone interacting with the criminal justice system. In any criminal case, sections 7 through 14 of the Charter set out the protections that govern police investigation, arrest, detention, prosecution, and trial.
More serious breaches — particularly those involving abuse of process — can lead to a stay of proceedings under section 24(1). A stay terminates the prosecution. It is a remedy of last resort, reserved for cases where no other remedy can address the prejudice to the accused or the integrity of the justice system.
The legal rights — sections 7 to 14
The most frequently invoked Charter sections in criminal practice are: section 7 (life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice — the umbrella provision behind disclosure, fair trial rights, and the right to make full answer and defence); section 8 (protection against unreasonable search and seizure, engaged whenever police search a person, vehicle, dwelling, phone, or other place where a reasonable expectation of privacy exists); section 9 (the right not to be arbitrarily detained or imprisoned, engaged whenever police restrict a person's liberty without reasonable grounds or statutory authority); section 10 (on arrest or detention, the rights to be informed of the reasons, to retain and instruct counsel without delay, and to be informed of that right to counsel); section 11 (procedural rights for any person charged with an offence: prompt notice of the offence, trial within a reasonable time, presumption of innocence, public hearing, reasonable bail, jury trial in serious cases, and protection against double jeopardy); and section 24 (the remedy provision — section 24(1) authorizes any "appropriate and just" remedy for a Charter breach; section 24(2) requires exclusion of evidence where its admission would bring the administration of justice into disrepute).
How Charter breaches affect a case
When police violate a Charter right, the defence can apply for a remedy under section 24. The most common remedy is the exclusion of evidence — for example, statements obtained without proper caution, breath samples taken in breach of the right to counsel, or drugs seized through an unconstitutional search. The court applies the three-part Grant test, weighing the seriousness of the breach, its impact on the accused's Charter-protected interests, and society's interest in adjudication on the merits.
The Charter at every stage
Charter analysis runs through every phase of a criminal defence. At the bail stage, section 11(e) underwrites the right to reasonable bail. At the disclosure stage, section 7 underwrites the right to full answer and defence. At trial, section 11(d) underwrites the presumption of innocence. After trial, section 11(b) — the right to trial within a reasonable time — can give rise to delay-based stays under the Jordan framework.
How Mass Tsang applies Charter analysis
Charter applications are a core part of how the criminal lawyers at Mass Tsang LLP defend cases. Police procedure is examined for breaches that can lead to evidence exclusion. Pre-trial delay is tracked against the Jordan ceiling. Disclosure is reviewed for completeness. To learn more about how Charter rights apply in everyday police interactions, see our blog posts on the rights of the charged or arrested and the differences between Miranda and Charter rights.
Related glossary terms
