Difference between revisions of "Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)"

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

The ''Charter'' provides for two types of sanctions. 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 s 24(1) of the ''Charter'' for an appropriate remedy. In the case of evidence obtained in contravention of the ''Charter'', that evidence could be excluded 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 typically given in the arraignment report.  Note: notice to seek to exclude evidence under section 24(2) of the ''Charter'' 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 against the party who failed to provide adequate notice.