Drafting the right Charter of Rights Form 1 Notice is now very important in Ontario Courts. You need a lawyer to carefully prepare, serve, and file the Notice on the Crown and sometimes on the police.

 

If one or more of your rights under the Charter of Rights has been violated, a remedy might be an application under section 24 of the Charter prior to the trial or at trial for a stay of proceedings (section 24(1)) or exclusion of evidence (section 24(2)). In order to raise these issues you must in Ontario serve the Crown Attorney's Office with a Form 1 Notice of Application. You should consult a lawyer who can explain each of the Charter of Rights sections that may have been violated. Each of the Charter  sections below has already had extensive litigation and the lawyer you consult can explain how the current state of the case law helps or doesn't help your allegation of a Charter breach. Although there may be good evidence of a Charter breach (e.g. section 8 an unlawful search), you still must convince a Judge to give you a Charter remedy, such as exclusion of evidence section 24(2). That may be difficult because under 24(2) you must establish that admission of the evidence would bring the administration of justice into disrepute.

 

 

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Courts of Justice Act Form 1

 

Form 1: Application

 

 

 

 

 

Charter of Rights

 

 

Life, liberty and security of person

7. 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.

Marginal note:Search or seizure

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

Marginal note:Detention or imprisonment

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

Marginal note:Arrest or detention

10. 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; and

• (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Marginal note:Proceedings in criminal and penal matters

11. Any person charged with an offence has the right

• (a) to be informed without unreasonable delay of the specific offence;

• (b) to be tried within a reasonable time;

• (c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

• (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

• (e) not to be denied reasonable bail without just cause;

• (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

• (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

• (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

• (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Enforcement of guaranteed rights and freedoms

• 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

• Marginal note:Exclusion of evidence bringing administration of justice into disrepute

  (2) Where, in proceedings under subsection (1), 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.

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