The Canadian Charter of Rights and Freedoms, or simply the “Charter”, is part of the Canadian Constitution and it sets out the rights and freedoms that Canadians hold dear. They range from freedom of expression to aboriginal people’s rights and from the right of French/English minorities to get an education in their language to the protection of Canada’s multicultural heritage.
If you are a defendant in a case, the constitution allows you to make an application for alleged breach of the Charter’s provision or provisions. This is called a charter challenge.
While it is possible to use the Charter to get equality rights, a Charter challenge is practically less accessible and more complex compared to the human rights system.
You can only make a Charter challenge through the court system and you have to pay filing fees. The court must be one that has jurisdiction over the person, the subject matter, and the remedy (superior courts). Provincial court judges do not have the power to make “declarations of invalidity” against provisions of the law. They can only “decline to apply the law” if the subject provision is deemed to be unconstitutional.
Note that other than the defence, a judge may also raise a charter issue on behalf of the defendant, especially where the defendant is representing him/herself.
Once you file a Charter challenge, it is your responsibility to prove the motion. You must inform the other party of your intention to file the challenge through a notice of motion. The notice of motion must be accompanied by the evidence you intend to use to make the challenge. The relief gotten must come from the motion and is not automatic.
In some cases, the judge will ask for a submission from the defence summarizing the evidence to be used in the challenge. If the judge is not satisfied by the evidence submitted, he may refuse the defence the chance for a voir dire on the challenge.
The Crown does not have to file a response for the challenge. Once the defence has presented its evidence before court, the Crown may then choose to respond, including by calling rebuttal witnesses.
If you are not successful, there is a risk that you will pay court costs. The process and arguments are difficult. These are the main reasons why you should always enlist the services of a lawyer for a Charter Challenge. At Costa Law Firm, we will give you a free 20 minutes assessment for you to determine the chances of success.
The burden of proof is on the applicant in applications for violation of Warrant Searches, Right to Counsel, and Right to Silence. The burden of proof is on the Crown in cases of warrantless searches and seizures. The law says the proof must be “sufficiently clear, convincing and cogent.” Our lawyers have the experience and training necessary to come up with the right standard of proof.