Charter Evidence Exclusion Application (Accused)

Purpose of this Guide: Use this plan when representing an accused person in Canadian criminal proceedings where state actors have infringed the client's constitutional rights during the investigation. It helps defence counsel navigate the process of seeking the exclusion of evidence under Section 24(2) of the Canadian Charter of Rights and Freedoms.

Jurisdiction: This plan operates under Canadian federal criminal law and applies across provincial and superior criminal courts, including the Ontario Court of Justice, the Ontario Superior Court of Justice, the Alberta Court of Justice, the Alberta Court of King's Bench, and the British Columbia Supreme Court. The forks address: (1) statements obtained in violation of right to counsel (conscriptive statement pathway), (2) physical evidence discovered as a consequence of a statement (derivative physical evidence pathway), and (3) physical evidence found directly during warrantless searches (non-derivative physical evidence pathway).

The Process at a Glance: The process starts with a thorough review of police interactions to determine whether a physical or psychological detention occurred, triggering informational and implementational duties. Counsel audits first-party disclosure under Stinchcombe, requests outstanding records, and evaluates whether third-party records are required. If a Charter breach is identified, counsel drafts the Notice of Application and the Notice of Constitutional Question, serving the Attorneys General within strict statutory deadlines. Counsel files the application materials, uploads them to the digital portal, hyperlinks CanLII citations, and argues the case during a pre-trial voir dire to exclude the tainted evidence.