Canadian criminal justice: Constitutional rights

1 - Constitutional rights

The Canadian Charter of Rights and Freedoms imposes limits and obligations on government authorities and grants rights and privileges to persons suspected or charged with offences. As part of our constitution, the rights and freedoms protected by the Charter supersede other legal rules, including the provisions of the Criminal Code and the Controlled Drugs and Substances Act. These rights can be enforced through pre-trial procedures, by mid-trial procedures, or at sentencing. If an individual’s Charter rights are violated, courts can grant a number of remedies, including, but not limited to: excluding evidence, stopping the prosecution, or reducing the sentence.

  • The Charter protects certain fundamental freedoms and equality rights that occasionally engage the criminal justice system. Sometimes, the government passes laws that infringe these liberties and criminal defence lawyers have successfully challenged their constitutionality.

For example, subsection 2(b) of the Charter protects everyone’s “freedom of thought, belief, opinion and expression.” In a 2001 case, after the defendant challenged the constitutionality of the child pornography provisions, the Supreme Court of Canada limited the scope of the offences by creating a special exception for “visual recordings created by or depicting the accused that do not depict unlawful sexual activity and are held by the accused exclusively for private use.”

  • The Charter also protects certain rights during investigations. Criminal charges can be dismissed after the defendant successfully brings an application to exclude evidence obtained in breach of these investigative rights.

For example, subsection 10(b) of the Charter protects everyone’s right “to retain and instruct counsel without delay and to be informed of that right” when they are detained or arrested. In a 1991 case, the Supreme Court of Canada entered an acquittal in a murder case because the police did not adequately explain the right to counsel at the beginning of the investigation and did not reiterate the right to counsel once the defendant became a suspect in the murder.

  • The Charter also protects certain procedural and substantive rights in criminal proceedings (e.g. during judicial interim release hearings, during pre-trial procedures, at trial, or at sentencing). These rights protect the fairness of the proceedings for defendants.

For example, subsection 11(b) of the Charter protects the right of any person charged with an offence “to be tried within a reasonable time.” In a 2016 case, the Supreme Court of Canada stayed proceedings against a man charged with drug-related offences because almost fifty months had passed between the date on which he had been charged and the ending of the trial.

Our team ensures that our clients’ constitutional rights are respected after they have been drawn into the criminal justice system through investigation and charges. Our lawyers are also available for consultations with people and organizations that want to understand and enforce their constitutionally-protected rights before being drawn into the criminal justice system.

Contact the lawyer of your choice for a free consultation.

This blog post is part of our Canadian criminal justice series – we hope that these blog posts will shed some light on the Canadian criminal justice system for clients and potential clients, members of the community, and law students. Feel free to e-mail us at to propose any changes or updates.