Charter Applications

These applications are not filed on a hunch. They are built out of disclosure, and they require a factual record: the notes, the timing, the radio log, the video, and often the evidence of the officers themselves on a voir dire. The application has to be drafted, served on notice, and supported by the evidence necessary to establish the breach.

Whether excluding the evidence would bring the administration of justice into disrepute is assessed against the seriousness of the state conduct, its impact on the accused, and society’s interest in a trial on the merits. Serious breaches of privacy and of the right to counsel are the ones that most often result in exclusion.

Section 8, unreasonable search and seizure

Vehicle searches, searches of a person incident to arrest, residential entries, and the review of a phone or computer all require lawful authority. Where a warrant was obtained, the affidavit behind it can be examined for material non disclosure and for whether it could sustain the authorisation at all.

Sections 9 and 10, detention and the right to counsel

An investigative detention has limits. A person who is detained must be told why, told of the right to counsel without delay, and given a real opportunity to exercise it. Breaches of section 10(b) are among the most common and most consequential in the reported cases, particularly in driving and drug matters.

Section 11(b), unreasonable delay

The Supreme Court has set presumptive ceilings on how long a case may take to reach trial. Where they are exceeded and the delay is not attributable to the defence, a stay of proceedings is available. Tracking delay from the first appearance is part of properly running any file.