Your Charter Rights in a Criminal Case: A Deep Dive

The Canadian Charter of Rights and Freedoms is the single most powerful tool in criminal defence. It is not an abstract constitutional document — it is a practical, enforceable set of rights that your lawyer invokes in court to exclude evidence, challenge police conduct, and secure acquittals or stays of proceedings. If the police violated your Charter rights during the investigation, the consequences for the Crown’s case can be devastating.

This article breaks down the Charter sections that come up most frequently in criminal cases, the types of arguments we make, and what happens when a violation is established.

Section 7: Life, Liberty, and Security of the Person

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 7 is the broadest of the criminal law Charter provisions. It protects your right to liberty — which is directly engaged any time you face the possibility of imprisonment — and guarantees that any deprivation of your liberty must accord with the “principles of fundamental justice.”

How Section 7 Is Used in Criminal Defence

• Disclosure rights: The Crown’s obligation to disclose all relevant evidence to the defence flows from Section 7. If the Crown withholds evidence — whether intentionally or through negligence — your right to a fair trial is compromised, and the appropriate remedy may range from an adjournment to a stay of proceedings. This is particularly important in complex cases like fraud or drug trafficking where the volume of disclosure is enormous.
• Delay (Section 11(b) and Section 7): If your case takes too long to get to trial, your Section 7 rights (and Section 11(b) rights) may be violated. The Supreme Court of Canada set firm timelines in R. v. Jordan: 18 months for provincial court matters and 30 months for superior court matters. If these ceilings are exceeded and the delay is not attributable to the defence, a stay of proceedings may be granted — meaning the charges are effectively thrown out.
• Abuse of process: Where the state’s conduct is so egregious that it shocks the conscience of the community — entrapment, bad faith prosecution, destruction of evidence — Section 7 provides the basis for a stay of proceedings.
• Challenging mandatory minimums: Section 7 (together with Section 12) is the basis for constitutional challenges to mandatory minimum sentences that are grossly disproportionate. This is particularly relevant in firearms and robbery cases.

Section 8: Unreasonable Search and Seizure

Everyone has the right to be secure against unreasonable search or seizure.

Section 8 is arguably the most frequently litigated Charter right in criminal law. Every time the police search you, your vehicle, your home, your phone, or your belongings, that search must comply with Section 8 — or the evidence obtained may be excluded.

The Basics: When Is a Search “Reasonable”?

A search is generally reasonable if it is:

1. Authorized by law — there is a legal basis for the search (a warrant, a recognized common law power, or a statutory authority)
2. The law is itself reasonable — the legal authority for the search is constitutionally valid
3. The search is carried out in a reasonable manner — even a lawfully authorized search can become unreasonable if it is conducted excessively or abusively

Common Section 8 Arguments

Search warrant challenges (Garofoli applications): When the police obtain a search warrant, they swear an Information to Obtain (ITO) before a justice. We obtain the ITO and challenge it line by line — looking for reliance on unreliable informants, stale information, misleading statements, material omissions, and insufficient grounds. If the ITO is fatally flawed, the warrant falls, and everything found during the search may be excluded. This is a critical tool in drug trafficking and firearms cases.

Warrantless vehicle searches: Police frequently search vehicles without a warrant during traffic stops. The law is clear: a routine traffic stop does not authorize a search of the vehicle. The officer needs additional grounds — search incident to arrest, plain view, or a specific safety concern. We see warrantless vehicle searches challenged regularly in impaired driving, drug, and firearms cases.

Cell phone searches: Your phone contains your most private information. The Supreme Court of Canada held in R. v. Fearon that a cell phone search incident to arrest is permissible only under strict conditions — the arrest must be lawful, the search must be truly incidental, the nature and extent of the search must be tailored to the purpose, and the police must take detailed notes. A warrant is generally required for a comprehensive phone search. Given the volume of evidence that comes from phones in cases like criminal harassment, uttering threats, and sexual assault, phone search challenges are increasingly common and important.

Drug-detection dogs: Deploying a drug-sniffing dog is itself a “search” under Section 8 (R. v. Kang-Brown; R. v. M.(A.)). The officer must have at least a reasonable suspicion that drugs are present before deploying a dog. A random or speculative deployment violates Section 8.

Home searches: Your home has the highest expectation of privacy. Warrantless entry is only justified in exigent circumstances (hot pursuit, imminent destruction of evidence, immediate safety concerns). We scrutinize every warrantless home entry and hold the Crown to the strict standards the law demands.

Section 9: Arbitrary Detention

Everyone has the right not to be arbitrarily detained or imprisoned.

Any time the police detain you — whether at a traffic stop, on the street, at a bar, or at your door — that detention must be legally justified. An arbitrary detention (one without a lawful basis) violates Section 9 and can taint everything that follows.

Common Section 9 Arguments

• Investigative detentions: Police can briefly detain you for investigation if they have a reasonable suspicion that you are connected to a particular crime. A mere “hunch” or a feeling that something is “off” is not enough. We challenge the stated grounds for the detention.
• Unlawful traffic stops: While random traffic stops are permitted under provincial highway traffic legislation (R. v. Ladouceur), the police cannot use a traffic stop as a pretext to investigate a criminal matter without independent grounds. “Pretextual stops” are a frequent battleground in impaired driving and drug cases.
• Street-level detentions: Being told to “stop,” “come here,” or “wait” by a police officer may constitute a detention. If the officer lacked grounds, the detention is arbitrary and any evidence obtained as a result may be excluded.

Section 10: Rights Upon Arrest or Detention

Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right…

Section 10 is the “right to a lawyer” section, and it is one of the most practically important rights in criminal law.

Section 10(a): Right to Be Informed of Reasons

You have the right to know why you are being detained or arrested. The information must be given promptly and in language you can understand. If the police detain you for one purpose but are actually investigating a different, more serious offence, your Section 10(a) rights may be violated.

Section 10(b): Right to Counsel

This right has several components, all of which the police must satisfy:

1. Informational duty: The police must tell you that you have the right to a lawyer, that you can call any lawyer, and that free duty counsel is available.
2. Implementational duty: The police must give you a reasonable opportunity to call a lawyer in private. They must hold off questioning you until you have had that opportunity. If you reach a lawyer, the police must allow you to have a meaningful conversation — not just a 30-second call.
3. The right to a lawyer of choice: You have the right to try to reach the specific lawyer you want. If that lawyer is not immediately available, you can wait a reasonable time — but you must also be diligent in your efforts to reach them.

Why Section 10(b) Matters So Much

A Section 10(b) violation is particularly devastating to the Crown’s case because it often leads to the exclusion of statements — your own words to the police. Many criminal cases are built primarily on what the accused said during the investigation. If that statement is excluded because you were not given a proper opportunity to speak with a lawyer, the Crown may be left with very little evidence.

This is critically important in impaired driving cases (where the breath sample itself may be excluded), sexual assault cases (where a statement is often the Crown’s key evidence), and youth justice cases (where the protections are even more stringent under the YCJA).

Section 11(b): Trial Within a Reasonable Time

Any person charged with an offence has the right to be tried within a reasonable time.

The R. v. Jordan framework sets presumptive ceilings:

• 18 months from the date of the charge to the anticipated end of trial in provincial court
• 30 months from the date of the charge to the anticipated end of trial in superior court

If the total delay exceeds these ceilings — minus any delay attributable to the defence — the Crown bears the burden of justifying the delay as reasonable due to exceptional circumstances. If the Crown cannot meet this burden, the remedy is a stay of proceedings — the charges are permanently thrown out.

Practical Impact

Jordan applications are particularly relevant in complex cases with long timelines — drug trafficking conspiracies, fraud prosecutions, sexual assault cases with multiple complainants, and cases involving extensive forensic evidence. We track the timeline from the moment charges are laid and raise Jordan at the appropriate time.

Section 12: Cruel and Unusual Treatment or Punishment

Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Section 12 is the basis for challenging mandatory minimum sentences that are grossly disproportionate to the offence and the offender. This is most commonly litigated in:

• Firearms offences — where mandatory minimums of 3-5 years are common
• Robbery with a firearm — mandatory minimums of 4-7 years
• Impaired driving — mandatory fines and driving prohibitions

If a mandatory minimum would produce a sentence that is grossly disproportionate in a particular case, the court can declare the mandatory minimum unconstitutional and impose a fit sentence instead.

What Happens When a Charter Violation Is Proven: Section 24(2)

Establishing a Charter violation is only half the battle. The next question is: what is the remedy?

Under Section 24(2) of the Charter, evidence obtained in a manner that infringed a Charter right must be excluded if its admission would bring the administration of justice into disrepute. The Supreme Court of Canada set out a three-part test in R. v. Grant:

1. The seriousness of the Charter-infringing state conduct. Was the violation deliberate, reckless, or merely a good-faith mistake? Deliberate or systemic violations weigh heavily in favour of exclusion.
2. The impact on the Charter-protected interests of the accused. How seriously was your privacy, liberty, or bodily integrity affected? A home search affects you more than a pat-down; a lengthy illegal detention affects you more than a brief one.
3. Society’s interest in an adjudication on the merits. How reliable and important is the evidence? Is it physical evidence (inherently reliable) or a statement (potentially unreliable if obtained under pressure)?

If the balance of these factors favours exclusion, the evidence is thrown out — and with it, often the Crown’s entire case.

The Bottom Line

Charter rights are not theoretical. They are enforced daily in Ontario courtrooms, and they lead to acquittals, stays of proceedings, and the exclusion of critical evidence. If the police interacted with you during the investigation of your case — and they almost certainly did — there may be Charter issues worth pursuing.

For practical guidance on how to handle a police encounter, see our article on your rights during a police stop. If you are a first-time offender, Charter arguments can be especially powerful in securing a withdrawal or discharge.

Think your rights were violated? Contact us for a case review. Charter arguments are technical and time-sensitive — early legal advice matters.