Preface

• Author: Matthew Asma/Matthew Gourlay
• Pages: 19-19

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Preface

Our goal in this book is to provide a one-stop guide to all the dierent remedies avail-

able under the Canadian Charter of Rights and Freedoms in a criminal proceeding.

Despite the many works on Canadian criminal procedure and Charter law, there does

not seem to be any other book of its kind for legal practitioners.

Experienced criminal lawyers may consider Charter section24(2) familiar fare yet

have questions about whether evidence in a particular case can be said to be obtained

in a manner that violated the Charter. The alternative route to excluding evidence

under the Charter, through section24(1), is less familiar but can be crucial to the suc-

cess or failure of a Charter claim in the right kind of case. Less familiar still are the

rules around seeking costs against the Crown or obtaining a habeas corpus review of an

unlawful detention. If all else fails, the remedy of a sentence reduction can provide the

accused with some meaningful recourse against a Charter breach that might otherwise

go without a remedy. And outside the normal course of a criminal case there are several

fairly obscure Charter remedies against illegal seizures that deserve to be better known

than they are. On all these topics, this book aims both to organize and distill the fam-

iliar and reveal and explain the unfamiliar.

Further, in this era of mandatory minimum sentences and other legislative innova-

tions with obvious (and perhaps not-so-obvious) Charter implications, criminal lawyers

need to have a firm grasp of the law and procedure surrounding declarations of invalidity

under section52(1) of the Constitution. Despite 40 years of Charter litigation, it was

only in 2022 that the Supreme Court of Canada clarifed what a section 52(1) declar-

ation of invalidity actually does, and who it binds. This second edition explains the

new decision in R v Sullivan,which answers some previously controverisial questions

about stare decisis andjudicial comity but leaves other procedural questions still

unresolved.

While we both practise primarily in Toronto, we have taken care to write for a pan-

Canadian audience, focusing on legal authorities from the Supreme Court of Canada

where possible, and from diverse provincial courts of appeal otherwise. Our hope is

that this work will be of assistance to both Crown and defence counsel as they endeav-

our to persuade the court to grant or withhold Charter relief.

© 2023 Emond Montgomery Publications. All Rights Reserved.