Procedural & Post-Conviction
Charter Application Lawyer in Canada
A Charter application asks a criminal court to determine whether state conduct breached an accused person's rights and, if so, whether a remedy should follow. This guide explains common Charter applications, the legal tests involved, available remedies and how defence counsel prepares the evidentiary record. Below you can find a Charter application lawyer in your province.
Canadian Charter of Rights and Freedoms, ss. 7 to 14 and s. 24·Criminal procedure
What Charter Applications involve in Canadian criminal procedure
A Charter application is a formal motion asking a criminal court to find that a state actor breached the accused's constitutional rights and to grant a remedy under section 24. The most common applications allege unreasonable search or seizure under section 8, arbitrary detention under section 9, or denial of the right to counsel under section 10(b).
Where a breach is established, section 24(2) requires exclusion of the evidence if its admission would bring the administration of justice into disrepute. R. v. Grant sets the three-part inquiry: the seriousness of the state conduct, the impact of the breach on the accused's Charter-protected interests, and society's interest in an adjudication on the merits.
Section 24(1) provides broader remedies for breaches that do not turn on evidence, including a stay of proceedings for abuse of process, a reduction in sentence, or costs. A stay is reserved for the clearest of cases under the framework in R. v. Babos.
The legal test
- Written notice of the application setting out the alleged breach, the facts relied on and the remedy sought
- A reasonable expectation of privacy, where the application is brought under section 8
- Evidence establishing the breach, usually through cross-examination of the investigating officers on a voir dire
- A causal or temporal connection between the breach and the evidence sought to be excluded
- Submissions applying the R. v. Grant factors, or the Babos test for a stay
Possible outcomes
- Exclusion of key evidence, which frequently leads to acquittal or withdrawal of the charge
- A judicial stay of proceedings in cases of serious state misconduct
- A reduction in sentence as a section 24(1) remedy
- Dismissal of the application, with the evidence admitted and the trial proceeding
- Additional court time, since voir dires lengthen a trial and can affect delay calculations
How counsel can help
- Section 8: challenging the grounds in the information to obtain, or the scope of a warrantless search
- Section 9: establishing that the detention was arbitrary or that the investigative detention lacked reasonable suspicion
- Section 10(b): showing that the accused was not properly informed of the right to counsel or not given a reasonable opportunity to exercise it
- Section 11(b): unreasonable delay measured against the ceilings in R. v. Jordan
- Section 7: non-disclosure by the Crown, or lost or destroyed evidence
- Section 12: challenging a mandatory minimum sentence as cruel and unusual punishment
Charter application lawyer: frequently asked questions
- Does a Charter breach automatically end the case?
- No. Establishing a breach is only the first step. Under section 24(2) the court must then decide whether admitting the evidence would bring the administration of justice into disrepute, applying the R. v. Grant factors. Some breaches are found but the evidence is still admitted.
- When must a Charter application be filed?
- Most courts have practice directions requiring written notice well in advance of trial, often thirty to sixty days. Late applications can be refused, so the material must be prepared early, which is one reason obtaining full disclosure quickly matters.
- What is the Jordan ceiling?
- In R. v. Jordan the Supreme Court set presumptive ceilings on the time from charge to the anticipated end of trial: eighteen months in provincial court and thirty months where there is a preliminary inquiry or the trial is in superior court. Delay above the ceiling is presumptively unreasonable unless the Crown can justify it.
Find a Charter application lawyer
Criminal defence firms listed on Criminal Lawyers Canada that identify Charter Applications among their practice areas. Featured listings appear first.
Charter Applications lawyers by province