What is a Charter application to exclude evidence in an Ontario criminal case?

It is a written request asking the trial judge to keep out evidence that the police obtained by breaching one of your Charter rights, most often the right against unreasonable search or seizure (s. 8), the right not to be arbitrarily detained (s. 9) or the right to a lawyer on arrest or detention (s. 10(b)). The evidence is excluded only if the judge finds that admitting it would bring the administration of justice into disrepute (s. 24(2)), using the test from R. v. Grant. In the Ontario Court of Justice the application is normally served and filed at least 30 days before it is heard.

A Charter application is one of the main tools in a criminal defence case in Ontario, and it is a court-stage remedy: it is argued in front of a judge, using the evidence and disclosure gathered after the charge. Questions about how a search warrant at a home is executed, and about police interview requests, are separate topics that are not covered here.

Which Charter rights are usually involved?

The Charter's legal rights are short, and most exclusion applications in Ontario criminal courts rest on a handful of them. The wording is worth reading exactly, because the application must say which right was breached and how.

Two things follow from that wording. A breach on its own is not enough: s. 24(2) asks a second question about the effect of admitting the evidence. And the evidence must have been "obtained in a manner" that infringed a right, so the application has to connect the breach to the evidence it seeks to exclude.

How is the application brought in the Ontario Court of Justice, step by step?

Trials before a judge of the Ontario Court of Justice follow that court's Criminal Rules, and the order of the trial itself is set out in our step-by-step guide to a criminal trial. The court's own trial guide says that to argue a Charter breach you must give a written Notice of Application to the Crown Attorney's office prosecuting the case and comply with Rules 2 and 3.

1. Identify the issue early. The court's guide says that if you will allege a Charter breach, you should tell the judge at the judicial pre-trial so enough trial time is booked.
2. Prepare a Form 1. It must include a concise statement of the subject of the application, the grounds to be argued, and a detailed statement of the factual basis, specific to your case (Criminal Rules, r. 2.1(2)). If the judge will need a transcript, for example of an earlier hearing, it is served and filed with the application (r. 2.1(3)).
3. Serve and file on time. The Form 1 must be served and filed with proof of service at least 30 days before the date of the hearing, unless the Criminal Code sets a longer period (r. 3.1(1)). The Crown's response in Form 2 is due at least 15 days before (r. 3.1(2)). Both periods can be shortened or lengthened by court order, or by consent with the court's approval (r. 3.1(3)).
4. Add material if it helps. Either side may file a short legal argument, affidavits, case law other than well-known precedents, or an agreed statement of facts (r. 2.3(2)).
5. The hearing. An application to exclude evidence is a trial application, heard at the start of the trial or during it unless the court orders otherwise (r. 2.5). The rule's commentary notes that at an impaired driving trial, for example, the Charter issue is most commonly dealt with in a blended voir dire and trial.
6. The ruling. The judge decides whether a right was breached and, if so, whether the evidence must be excluded under s. 24(2). The trial then continues on whatever evidence remains admissible.

A delay application is a different remedy with its own timetable; it is explained in how long a criminal case can take in Ontario. If your trial is in the Superior Court instead, for example at the Superior Court criminal courthouse at 361 University Avenue, that court applies its own criminal rules, so the timelines above should be checked against them.

How does the judge decide whether to exclude the evidence?

The Supreme Court of Canada set the test in R. v. Grant, 2009 SCC 32. The court said that the phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system (para. 68), and that s. 24(2) is not aimed at punishing the police or compensating the accused (para. 70). A judge must assess and balance the effect of admitting the evidence on society's confidence in the justice system, having regard to three lines of inquiry (para. 71):

• The seriousness of the Charter-infringing state conduct. The more deliberate or careless the breach, the more admitting the evidence may look like the court condoning it.
• The impact of the breach on the Charter-protected interests of the accused. A breach can be technical or it can intrude deeply on privacy, liberty or the right to counsel.
• Society's interest in the adjudication of the case on its merits. Reliable evidence that is important to the Crown's case weighs on this side.

No overarching rule decides how the balance is struck, and mathematical precision is not possible (para. 86). As a general rule, the court said, where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused's protected interests, the trial judge may conclude it should be admitted; on the other hand, deliberate and egregious police conduct that severely affected the accused's protected interests may result in exclusion (para. 127). In Grant itself the court found a breach but held that admitting the gun would not, on balance, bring the administration of justice into disrepute, calling it a close case (para. 140).

What changes the answer?

• Which right was breached, and how. The application must identify the right (Charter, ss. 8, 9, 10) and give a detailed factual basis (Criminal Rules, r. 2.1(2)).
• The link between the breach and the evidence. Section 24(2) applies to evidence "obtained in a manner" that infringed a right.
• How serious the police conduct was. Good faith and minor intrusions point toward admission; deliberate, egregious conduct toward exclusion (Grant, paras. 71 and 127).
• How reliable and important the evidence is. Society's interest in a trial on the merits is the third line of inquiry (Grant, para. 71).
• Timing. A late Form 1 can be excused, but non-compliance can also lead to dismissal of the application without a hearing on the merits (r. 5.3 and commentary).
• The remedy sought. Exclusion is under s. 24(2); a stay or another remedy is under s. 24(1), and some remedies need a Notice of Constitutional Question (OCJ trial guide).

A worked example

For example, imagine Kian, a 23-year-old student from Vaughan. York Regional Police stop his car, and an officer searches the car and finds a folding knife; he is charged with a weapons offence. He speaks Farsi at home and was not sure, at the roadside, whether he could call a lawyer. His family looks at how criminal cases from Vaughan are handled and he retains counsel.

His lawyer reviews the disclosure, including the officers' notes and the in-car video, and sees two possible issues: whether the search was lawful (s. 8) and whether he was told of his right to counsel promptly (s. 10(b)). At the judicial pre-trial, the lawyer tells the judge that a Charter application will be brought so the trial is booked long enough. A Form 1 setting out the detailed facts is served on the Crown and filed more than 30 days before trial. At trial the application is heard in a blended voir dire, the officers are cross-examined, and the judge applies the Grant factors to decide whether the knife is excluded. This is a hypothetical, not a real client and not a prediction of any result; the background on the offence itself is on our weapon offences page.

What mistakes do people make?

1. Raising the issue for the first time on the trial date. The Criminal Rules expect the Form 1 at least 30 days before the hearing (r. 3.1(1)).
2. Filing a Form 1 without real facts. The rule requires a detailed factual basis specific to your case, not a general complaint (r. 2.1(2)(c)).
3. Expecting automatic exclusion. A breach starts the s. 24(2) analysis; it does not end it. In Grant the evidence was admitted despite a breach (para. 140).
4. Not reading the full disclosure first. Officers' notes, video and timestamps are usually where the facts of a breach are found.
5. Forgetting the transcript. If the judge will need one, it must be served and filed with the application (r. 2.1(3)).
6. Skipping the judicial pre-trial notice. The court's guide asks you to raise a Charter issue there so enough time is scheduled.

What to do this week

1. Write a timeline of the stop, search, arrest and any phone call to a lawyer, with times as best you remember them.
2. Get full disclosure, including notes, video and any warrant or authorization the police relied on; see what disclosure includes.
3. Count back from the trial date to see how much time is left before the 30-day Form 1 deadline.
4. List possible witnesses to the stop or search, such as a passenger or a friend who received a call.
5. Ask for an interpreter if you will testify on the voir dire and are more comfortable in Farsi.

If you are more at ease in Persian, our guide for Persian-speaking people charged in the GTA explains each court step.

Frequently asked questions

If my Charter rights were breached, is the case thrown out?

Not automatically. Under s. 24(2), the evidence is excluded only if admitting it would bring the administration of justice into disrepute, and the trial continues on the remaining evidence. A stay of the whole case is a different remedy under s. 24(1).

Who has to prove what?

The defence brings the application and sets out its factual basis in the Form 1 (r. 2.1(2)). Section 24(2) then says the evidence is excluded "if it is established" that admitting it would bring the administration of justice into disrepute, which is decided on the three Grant lines of inquiry.

Will I have to testify on the application?

Sometimes the facts can only come from you, for example what an officer said at the roadside. Evidence on a voir dire is heard separately, and the court's glossary describes a voir dire as a hearing to determine legal issues; whether to testify there is a decision for you and your lawyer. Our page on whether you have to testify at your own trial explains the protections that apply.

Is a statement I made to police a Charter issue?

It can be, if it followed a breach of s. 10(b). Separately, the court's guide says the Crown must prove that a statement to a police officer or other person in authority was made voluntarily, which is decided at a voir dire during the trial.

Can I still bring the application if I miss the 30-day deadline?

You can ask. The court may shorten the time or excuse non-compliance to ensure a fair hearing (rr. 3.1(3) and 5.3), but the rule's commentary warns that consequences can include dismissal without a hearing on the merits.

What happens to the application if I plead guilty?

A guilty plea gives up the trial, and with it the chance to have the evidence excluded. Before deciding, read what a guilty plea involves in Ontario.

Getting help

Gambriani Law PC brings and argues Charter applications in the Ontario Court of Justice and the Superior Court in Toronto, York Region and Peel, in English and Farsi. No lawyer can promise that evidence will be excluded, but identifying the issue early and setting out the facts properly gives the application a sound footing. The office is at Suite 1901, 5000 Yonge Street in North York, open Monday to Friday, 9:00 a.m. to 5:00 p.m., at +1 647 970 3370, or you can reach us through the contact page.

This page is general information about Ontario criminal procedure, not legal advice about your case.