Raise Your Charter Argument Before the Crown Closes its Case


Under section 24(2) of the Canadian Charter of Rights and Freedoms, the burden of having the court exclude evidence that is otherwise admissible passes to the defence. The Crown does not have to anticipate that the defence will seek to exclude Crown evidence on the basis of an alleged Charter breach.  The orderly and fair operation of the criminal trial process requires that the Crown know before it completes its case whether the evidence it has tendered, will be received and considered in determining the guilt of an accused.

Absent special circum­stances [FN], the general principle is that the accused must raise Charter objections to the admissibility of Crown evidence before, not after, that evidence is adduced. 

Otherwise, the Crown and the Court are entitled to proceed on the basis that no Charter issue is involved in the case.

                                                R. v. Kutynec, 1992 CanLII 12755 (ON CA);
                                                R. v. Luksicek, 1993 CanLII 1148 (BC CA).

[FN]: A trial judge has the discretion to allow counsel to challenge evidence already received and will do so where the interests of justice so warrant.


[FN] Consider also your obligation to provide formal notice of the application and the factual basis supporting it under any rules of the Court (e.g., Rules 2 & 3 of the Criminal Rules of the Ontario Court of Justice).  
Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca. (All rights reserved to author).


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