Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 1, 2023.

A. Impact of the Charter

Procedural and substantive criminal law has been shaped and expanded by the Canadian Charter of Rights and Freedoms since its introduction in 1982. Consideration of sections 7 to 15 of the Charter, in addition to the remedial section 24, is required to properly understand the constitutional guarantees that profoundly influence criminal law.

A compilation of Charter decisions is available at the UBC Law Library, and includes decisions in areas such as arrest procedures, the right to counsel, the admissibility of illegally obtained evidence at trial, search and seizure, and the right to be presumed innocent until proven guilty.

The Charter provides for three types of relief from Charter violating conduct of government agencies. First, where a law is found to violate the Charter, section 52 of the Constitution Act applies to render the law “of no force or effect”. Second, where an individual’s right or freedom has been infringed upon, not by impugned legislation but by the acts of an agent for the state (e.g., the police), the aggrieved person may apply under section 24(1) of the Charter for an appropriate remedy. Third, if the case of evidence was obtained in contravention of the Charter, that evidence could be excluded from a judicial proceeding by the operation of section 24(2).

Section 8 of the Constitutional Question Act, RSBC 1996, c 68, requires that 14 days’ notice be given to opposing counsel where the constitutional validity of a law is challenged or where an application is made for a constitutional remedy under section 24(1) of the Charter. Note: To challenge legislation or seek a remedy under section 24(1), separate notice must be given to both provincial Crown Counsel and the federal government. For an application to exclude evidence under section 24(2) of the Charter, notice is not required by the Constitutional Question Act, but a failure to alert the Crown in a timely manner to an application to exclude evidence under section 24(2) of the Charter has been met in a number of decisions with the court applying its considerable powers to control its own processes with remedies adversely affecting the party who failed to provide adequate notice to the other party.

B. Section 1 of the Charter

Section 1 of the Charter is often referred to as the “reasonable limits clause” because it is the section that can be used to justify a limitation on a person’s Charter rights. Charter rights are not absolute and can be infringed if the Courts determine that the infringement is reasonably justified.

Section 1 primarily arises in cases where a litigant is seeking to have a law declared of no force or effect. In order for the Charter infringement to be justified, the government has to prove to a court that its actions satisfy the steps in a section 1 analysis. The standard of proof is the civil standard – on a balance of probabilities.

The Oakes Test (R v Oakes, 1986 1 SCR 103) is the legal test to be applied to Section 1 Charter analysis. The Oakes Test sets out the following criteria that must all be satisfied to justify a Charter violation:

there must be a sufficiently important objective to warrant the overriding of the Charter right;
there must be a rational connection between the objective (i.e., the policy) and the means chosen (i.e., the law)
the means chosen must constitute a minimal impairment of that Charter right; and
the harm done by the means chosen must be proportionate to the government’s objective (e.g., the more harmful the violation, the more important the objective must be).

C. Right to a Trial Within a Reasonable Time: s. 11(b)

Section 11 – Any person charged with an offence has the right: (b) to be tried within a reasonable time.

In addition to the right to make full answer and defence, any person “has the right to be tried within a reasonable time”. The decision by the Supreme Court of Canada in R v Jordan, 2016 SCC 27, has addressed the issue of what constitutes a “reasonable time”. R v Jordan created presumptive ceilings, beyond which any delay is presumed to be unreasonable, of 18 months for matters proceeding in provincial courts, and 30 months for matters proceeding in superior courts.

The remedy for the state’s breach of one’s section 11(b) rights is a judicial stay of proceedings pursuant to section 24(1) of the Charter. As previously mentioned, notice is required.

D. Lawful Arrest

Section 9 – Right not to be arbitrarily detained or imprisoned.

An unlawful arrest may vitiate the authority of a search or may be the basis of a Charter argument that the accused was arbitrarily detained contrary to section 9 of the Charter. This may result in exclusion of evidence such as items seized during the arrest.

1. Police Powers

The police may arrest any person without warrant who is actively committing a criminal offence of any type or who they believe on reasonable and probable grounds has committed or is about to commit an indictable offence (Criminal Code, s 495(1)). The police officer’s belief must be reasonably grounded and more than a mere “suspicion”.

However, a police officer must not arrest a person for a summary offence, hybrid offence, or indictable offence, listed under section 553 of the Criminal Code unless they are also satisfied that:

the public interest requires it; and
there are reasonable and probable grounds to believe that the person will fail to attend court (Criminal Code, s 495(2)).

“Public interest” includes the need to establish the person’s identity, the need to secure and preserve evidence, and the need to prevent the continuation or repetition of an offence or the commission of another offence.

An accused who is not arrested should be released with an appearance notice. Note that there are instances where, even though an arrest was unlawful, the person’s detention will not be deemed arbitrary. See sections 8, 9, 10, and 11 of the Charter for relevant constitutional provisions.

Regular citizens also have the same rights to detain people pursuant to the criminal code. Under section 494(1) of the Criminal Code, anyone can arrest a person without warrant if they find the person committing an indictable offence, have reasonable grounds to believe the person has committed an indictable offence, or if they see a person being pursued by anyone who has lawful authority to arrest the person. Section 494(2) gives store detectives the authority to arrest shoplifters. Under this section, a property owner or an agent working on the owner’s behalf may arrest, without warrant, any person who is committing a criminal offence in relation to the owner’s property.

2. The Criminal Code: The Law of Arrest and Release

Some of the relevant sections of the Criminal Code are:

ss 25 – 27: use of force, liability for excess force, use of force must be reasonably necessary;
ss 494 and 495: arrest without warrant by private citizen, police officers;
ss 496, 497, 498 and 499: appearance notice, release from custody;
s 501: appearance notice, promise to appear, recognizance;
ss 503 and 515: judicial interim release (bail);
ss 145, 498 and 510: failure to appear; and
ss 511 – 514: warrant to arrest.

Sections 7, 10, and 24 of the Charter have some measure of effect on arrest procedure, particularly in relation to the conduct of arresting officers and the admissibility of evidence (see R v Stevens, [1988] 1 SCR 1153). There is also well-developed case law on arrest procedure. See Christie v Leachinsky, [1947] AC 573 (HL) and section 29 of the Criminal Code.

E. Finding Legal Counsel and Other Assistance Where Person is Arrested and Detained: s 10(b)

Section 10 – Right on arrest or detention: (b) to retain and instruct counsel without delay and to be informed of that right.

If an accused has been denied bail (detained), it is usually a sign that the offence is serious. It is important to have some knowledge of Charter issues relating to arrest and detention.

Under section 10 of the Charter, everyone has the right on arrest or detention:

To be informed promptly of the reasons for that arrest or detention;
To be informed of the right to remain silent;
To retain and instruct counsel without delay and to be informed of that right; and
To be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel (R v Brydges, [1990] 1 SCR 190).

The Charter right to counsel is thus triggered where a person is arrested or detained. Detention under sections 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that they had no choice but to comply. See R v Grant, [2009] 2 SCR 353, for more details.

Under section 10(b), the arresting officer has a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel (R v Manninen [1987] 1 SCR 1233). The arrested person has both the right to Legal Aid counsel and the right to be informed of this right: see R v Brydges [1990] 1 SCR 190 and R v Prosper [1994] 3 SCR 236. Some exceptions regarding the timing and access to these rights exist.

Issues may arise at trial when an accused gave a statement to the police or provided bodily samples of some sort without being given the opportunity to retain and instruct counsel. In such cases, an application should be made to have the evidence excluded under section 24(2) of the Charter.

NOTE: Brydges Line is a province-wide service that is available for arrested persons 24 hours a day, 7 days a week. A lawyer is always available to speak to the person for free. It is available toll-free at 1 (800) 458-5500.

F. Search and Seizure: s 8

Section 8 – Right to be secure against unreasonable search and seizure.

A breach of an accused’s rights against unreasonable search and seizure may result in the exclusion of evidence obtained during a search.

1. Lawful Police Searches without a search warrant

In general, police must have a search warrant to search a person’s premises, vehicle, or person (see R v Feeney, [1997] 2 SCR 13). However, there are exceptions where exigent circumstances exist to allow warrantless searches. In addition, there is a recognized police power to conduct a search incidental to a valid arrest of an arrested person and the area around where that person was arrested.

a) Search After Valid Arrest and Search of Person

At common law, upon a lawful arrest, an officer acquires an attendant right to search the arrestee for officer safety and evidence (see R v Klimchuk, [1991] 67 CCC (3d) 385 (BCCA)). Note: Such a search requires a lawful arrest and is subject to a challenge if the arrest was not lawful. (See Section E on Lawful Arrest above).

Where no arrest has taken place, a peace officer may also acquire a more limited right to search for officer safety. If an officer has reasonable grounds to suspect that an individual has a specific connection to a crime and detains that individual for further investigation then, incidental to this investigative detention, the officer may engage in a limited pat-down search confined in scope to locate weapons (see R v Mann, [2004] 3 SCR 59).

For more information on searches of the person, see ''R v Debot [1989] 2 SCR 1140, R v Ferris [1998] BCJ No 1415 (CA), and R v Simmons [1988] 2 SCR 495.

A warrantless search is presumed to be unreasonable and the onus is on the party seeking to justify the search and seizure to rebut this presumption (see Hunter v Southam Inc, [1984], 2 SCR 145). The Supreme Court, however, has recognised several situations where authorities may conduct a search without warrants – for example, where evidence of the offence is in plain view, or where the occupant of the premises has consented to the search.

A search warrant authorizes the police to enter and search a specific location during a specific period of time. An occupant of the premises to be searched has a right to view the search warrant before the search is conducted. An occupant should check the address on the warrant and the time that the search is authorized to ensure that the warrant actually authorizes the search. Unless the warrant states that the police may enter and search a specific address during the time the police arrive at the occupant’s address then the occupant should point out to the police that the warrant is either not for the occupant’s address or has expired and they may therefore refuse police access to the residence. If the police nonetheless insist on entering the location and searching it there is little, practically speaking, that can be done to stop the search while it is occurring. There may, however, be a civil right of action against them in trespass and a strong argument in any subsequent criminal case that any items seized should be excluded from evidence.

A search warrant should only be issued if the police have reasonable grounds to believe that evidence of a criminal offence will be located at the place to be searched. To obtain a search warrant, a police officer will swear an affidavit setting out why they believe there are reasonable grounds and make an ex parte application for the warrant to a judge or justice.

Practice Recommendation - Challenging a Search Warrant
To challenge a search warrant, the defence/accused should first seek disclosure of the Information to Obtain (ITO), which is the affidavit sworn in support of obtaining the search warrant. There are three ways to challenge the validity of a warrant issued on the strength of the ITO: Facially Invalid: If the contents of the ITO do not establish reasonable grounds to believe items relevant to an offence will likely be found in the search location, then an application may be made as a facial validity challenge to the ITO. Facially Valid, but with insufficient factual grounding: If the ITO does not reflect the true state of the police investigation at the time the ITO was drafted, and those omissions or mistakes were material to the issuance of the warrant, an application can be made. Facially Valid with Sufficient Grounds, but the police engaged in an abusive process in obtaining the ITO. When assessing the ITO, first determine if the affidavits filed in support of the warrant establish reasonable grounds for searching the location, based on the contents of the ITO (assuming the contents are true). If the ITO, on its face, provides sufficient grounds to issue a warrant then the ITO must be compared to the information the police had available at the time they applied for the search warrant to assess whether the police made full, fair, and frank disclosure of all material relevant to the request to search that location. The ITO as an ex parte application should provide full, fair, and frank disclosure of all material facts relevant to the police investigation and knowledge of the place searched at the time the ITO was sworn. If there are important errors or omissions in the facts stated in the ITO then an application can be made to cross-examine the affiant of the ITO as a sub-facial challenge to the ITO, in an effort to show either that, had the true state of affairs been disclosed in the ITO the warrant would not have been issued, or that the police intentionally misled the authorising justice. See ''R v Garofoli [1990] 2 SCR 1421 and R v Araujo [2000] 2 SCR 992 for more information on challenging search warrants.

A warrantless search is presumed to be unreasonable and the onus is on the party seeking to justify the search and seizure to rebut this presumption (see Hunter v Southam Inc, [1984], 2 SCR 145). The Supreme Court, however, has recognized several situations where authorities may conduct a search without warrants – for example, where evidence of the offence is in plain view, or where the occupant of the premises has consented to the search.

A search warrant authorizes the police to enter and search a specific location during a specific period of time and an occupant of the premises to be searched has a right to view the search warrant before the search is conducted. An occupant should check the address on the warrant and the time that the search is authorized to ensure that the warrant actually authorizes the search. Unless the warrant states that the police may enter and search a specific address during the time the police arrive at the occupant’s address then the occupant should point out to the police that the warrant is either not for the occupant’s address or has expired and they may therefore refuse police access to the residence. If the police nonetheless insist on entering the location and searching it there is little, practically speaking, that can be done to stop the search while it is occurring. There may, however, be a civil right of action against them in trespass and a strong argument in any subsequent criminal case that any items seized should be excluded from evidence.

G. Right to Remain Silent: s 7

Section 7 – Right to life, liberty, and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (“fundamental justice” includes the ability to make a full answer and defence, the right to silence, and the right to a fair trial, meaning that there is a right to Crown disclosure).

1. General Right of Silence

There is a basic right to remain silent when encountering police officers that applies before and after arrest. A police officer has no right to take a person to the police station for questioning unless that person has been arrested or goes voluntarily.

An accused has the right to remain silent when questioned after arrest. This silence cannot be used in court to imply guilt. An accused is protected from self-incrimination by silence. The police must inform the accused of the right to remain silent and that anything they do say may be used as evidence.

An accused should be further advised that when they are being questioned, any conversation with police can only hurt them. Police will usually ask the accused for “their side of the story”. Police are looking to obtain admissions like, “I was there, but I didn’t do that”. This would be a confession that the accused was present at the scene, which the Crown may not have otherwise been able to prove.

It is best for an accused to say nothing to the police. This applies even when an accused plans to plead guilty because there may be a valid defence to the charge about which the accused does not know. For further information, see R v Hebert [1990] 2 SCR 151.

2. The Modern Confessions Rule: Oickle

The modern confessions rule is outlined in R v Oickle [2000] 2 SCR 3. A confession or admission to a police officer (or other authority figure like transit police or private security officers) by an accused will not be admissible if it is made under circumstances that raise a reasonable doubt as to its voluntariness. The burden of proving the voluntariness of a confession falls on the Crown to prove beyond a reasonable doubt. However, if it appears that the Crown can satisfy that burden, the accused should consider calling evidence regarding the voluntariness of the confession so as to cast doubt on the voluntariness of that confession.

When arguing that a confession was not voluntary, consider the following:

Threats or promises: fear of prejudice (if the accused was told “it would be better to confess”) or hope of advantage (this does not have to be aimed at the accused, but can entail promises of reducing the charges);
Oppression: this includes subjecting the accused to inhumane conditions, depriving them of food, clothing, water, sleep, medical attention, counsel, or prolonged intimidating questioning;
Operating mind: whether the accused knew what they were saying and that it could be used against them; and
Other police trickery: police are permitted to be persistent and accusatorial but not hostile, aggressive, or intimidating to the point that the community may be shocked by police actions.

3. Exceptions to the General Right of Silence

a) Motor Vehicle Drivers

Pursuant to section 73 of the Motor Vehicle Act, the driver (not passenger) of a motor vehicle must stop when asked to do so by a readily identifiable police officer and give their name and address, and that of the vehicle’s owner.

b) Pedestrian Offence

A person who commits a pedestrian offence must state their name and address when asked by a police officer or that person may be subject to arrest (City of Vancouver, By-Law No 2849, Street and Traffic By-Law (June 13, 2023])).

The decision of the Supreme Court of Canada in Moore v The Queen [1979] 1 SCR 195 suggests that the same is true for offences committed while riding a bicycle. While the police have no power to arrest a person for this type of summary conviction offence, the police may do so lawfully if it is necessary to establish the identity of the alleged violator.

c) Federal Statutes

Various federal statutes have provisions requiring that questions be answered in specific situations: see Canada Evidence Act, RSC 1985, c C-5; BC Evidence Act, RSBC 1996 c 124; Excise Act, RSC 1985, c E-14; Income Tax Act, RSC 1985, c 1 (5th Supp.); ''Immigration and Refugee Protection Act, SC 2001, c 27; and Bankruptcy and Insolvency Act, RSC 1985, c B-3.

4. Exception to Right Against Self-Incrimination: Breathalyser Sample

Where a police officer, on reasonable and probable grounds, believes a person has alcohol or drugs in their system, that officer may require a sample of breath to be produced. A person who refuses to comply with a valid breath demand, without a reasonable excuse for refusing, may face criminal charges for failure to provide a breath sample. See Chapter 13: Motor Vehicle Law for more information.

H. Admission of Evidence Obtained in Contravention of Charter: (24(2))

NOTE: It is good practice to advise the Crown ahead of time before making a Charter argument even if the only remedy sought is under section 24(2). In the Charter notice, the accused should provide the Crown with sufficient particulars of the argument, including the alleged breach, the remedy sought, and the witnesses required for the application (Voir Dire). The accused should also cite cases on which they intend to rely.

S. 24 (2) a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute

Section 24(2) of the Canadian Charter of Rights and Freedoms provides a remedy to those whose Charter rights have been violated and are later in a proceeding where evidence obtained related to that Charter violation is sought to be introduced. The burden lies on the applicant to establish a Charter violation. The standard is based on a balance of probabilities. Once the Charter violation is proven, the focus shifts to matters concerning the possible effects on the fairness of the trial if the evidence was permitted to be used in a trial against the person whose Charter rights were breached. The three factors to be balanced in order to determine if the evidence should be excluded are (1) the seriousness of the Charter infringing state conduct, (2) the impact of the Charter breach on the accused’s interest, and (3) society’s interest on the adjudication of the case on its merits (see R v Grant 2009 SCC 32). The burden is on the accused to establish on a balance of probabilities that evidence should be excluded under section 24(2). See R v Harrison 2009 SCC 34 for more information on the section 24(2) test.

1. Other Charter Remedies Obtained through S. 24(1)

Section 24(1) permits a court to craft any remedy it considers appropriate and just in the circumstances. One commonly sought remedy is a judicial stay of proceedings under section 24(1) for an abuse of process. However, such a remedy is only provided in the clearest of cases and is rarely granted other than for delay. Recent case law has somewhat reinvigorated the doctrine of abuse of process and examined the potential for alternate remedies to judicial stays of proceedings where police conduct was abusive. See R v Hart 2014 SCC 52.