1
Threshold
Matters
1
I. Introduction ............................................. 2
II. Key Concepts in This Chapter ............................... 2
III. Jurisdiction to Grant a Remedy .............................. 3
A. Conduct by a Government in Canada Must Be in Issue ..... 3
B. Court of Competent Jurisdiction ........................ 6
C. Notice of Constitutional Question ...................... 10
D. Evidence “Obtained in a Manner” ...................... 14
IV. Procedural Requirements ................................... 15
A. Rules of Court ...................................... 15
B. Justifying a Hearing .................................. 15
C. Judicial Control of the Process ......................... 17
D. Blended Evidentiary Hearings .......................... 18
E. Bifurcated Hearings .................................. 20
F. Timing of the Hearing and the Ruling ................... 20
V. Burden and Standard of Proof ............................... 21
VI. Checklists ............................................... 22
A. Section 24(1): Threshold Requirements .................. 22
B. Section 24(2): Threshold Requirements .................. 23
C. Section 52(1): Threshold Requirements .................. 23
VII. Example Notice of Application ............................... 24
© 2023 Emond Montgomery Publications. All Rights Reserved.
Charter Remedies in Criminal Cases
I. Introduction
The Canadian Charter of Rights and Freedoms1 oers two distinct types of remedies.
Section 24 provides for remedies against government actions that violate Charter
rights, and section 52(1) provides for remedies against legislation that operates in
violation of Charter rights.2 This book is about how those remedies can be obtained
in criminal courts.
There are a number of threshold requirements that a claimant must be able to
satisfy before a criminal court will consider granting a remedy. These requirements
can be understood under three headings: jurisdictional, procedural, and evidentiary.
II. Key Concepts in This Chapter
• The Charter only applies to legislation and conduct of Canadian governmental
authorities. It does not usually apply to the conduct of private actors, nor to
conduct outside of Canada. However, there are some exceptions, which are
discussed in SectionIII.A.
• Not all courts can grant Charter remedies at all times. In criminal litigation,
most Charter applications are made to the trial judge or the appointed case
management judge. There are special considerations for Charter applications
1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11
[the Charter].
2 R v 974649 Ontario Inc, 2001 SCC 81 at para 14 [Dunedin Construction].
Box . The Constitution Act, , Sections
and ()
() Anyone whose rights or freedoms, as guaranteed by this Charter,
have been infringed or denied may apply to a court of competent jurisdic-
tion to obtain such remedy as the court considers appropriate and just in
the circumstances.
() Where, in proceedings under subsection (), 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. …
() The Constitution of Canada is the supreme law of Canada, and
any law that is inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, of no force or eect.
© 2023 Emond Montgomery Publications. All Rights Reserved.
