Other Remedies

• Author: Matthew Asma/Matthew Gourlay
• Pages: 221-238

221

Other Remedies

8

I. Introduction .............................................222

II. Remedies Against Seizure of Evidence ........................ 222

A. Interim Impounding of Things Seized ................... 222

B. Return of Things Seized Before Trial ..................... 223

C. Residual Discretion to Quash Search Warrants at Trial ...... 225

D. Remedies for Lost Evidence Relating to Grounds

for a Warrant ....................................... 227

III. Disclosure ............................................... 228

A. Remedy in Trial Court for Non-Disclosure ................ 229

B. Appealing a Trial Court’s Disclosure Order ............... 230

C. Remedy in Appeal Court for Non-Disclosure .............. 231

IV. Adjournment or Mistrial .................................... 232

V. Adverse Inferences and Jury Instructions ...................... 234

VI. Admission of Defence Evidence .............................. 234

VII. Funding of Counsel ........................................ 235

VIII. Damages ................................................ 237

© 2023 Emond Montgomery Publications. All Rights Reserved.

222Charter Remedies in Criminal Cases

I. Introduction

This chapter deals with an assortment of Charter remedies available under section

24(1) that do not fit neatly into any of the topics covered in previous chapters.

In relation to all these remedies, practitioners and courts must keep in mind the

threshold requirements discussed in Chapter1: the applicant must prove a viola-

tion of the applicant’s personal Charter rights by a Canadian governmental actor;

the application must be brought before a court of competent jurisdiction to grant the

remedy; the applicant must comply with applicable rules of court concerning notice

and serve a notice of constitutional question (NCQ ) in provinces where an NCQ is

required for section24(1) remedies; and, ultimately, the applicant must persuade the

court that the remedy sought is “appropriate and just in the circumstances.”

II. Remedies Against Seizure of Evidence

Exclusion of evidence is the predominant remedy for seizures of evidence by the state

in a manner that violates a Charter right of the accused. The remedy of exclusion is

discussed in Chapter2. But that is not the only possible remedy relating to seizures.

Discussed next are three other possible remedies:

1. impounding seized property on an interim basis to deprive the state of posses-

sion pending adjudication of a Charter claim;

2. ordering seized property to be returned, when a Charter claim is decided earlier

than at trial; and

3. quashing a search warrant under section 24(1), even though the warrant sur-

vives a Garofoli review at trial, in response to intentional and wrongful police

conduct in the course of obtaining the warrant.

A. Interim Impounding of Things Seized

When property has been seized by a state authority and the owner takes legal steps

to challenge the constitutionality of a seizure by application to the superior court,

the application judge has a discretionary power to order the property impounded

by the court on an interim basis to deprive the state of possession of the property

until the challenge to the seizure is adjudicated.1 The legal test for relief is the RJR-

MacDonald test for interim injunctions:

1. Is there a serious question to be tried?

2. Will the applicant suer irreparable harm if an injunction is refused? and

1 143471 Canada Inc v Quebec (AG);Tabah v Quebec (AG), [1994] 2 SCR 339, 1994 CanLII 89,

Cory J [Tabah].

© 2023 Emond Montgomery Publications. All Rights Reserved.