Threshold Matters

• Author: Matthew Asma/Matthew Gourlay
• Pages: 1-27

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 oers 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 SectionIII.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, c11

[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 eect.

© 2023 Emond Montgomery Publications. All Rights Reserved.