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Canadian Criminal Procedure and Practice/Pre-Trial Matters/Applications and Motions Procedure

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Motions and Applications Generally

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All motions are to be made inter partes, with notice to all the interested parties rather than ex parte, without notice to the other parties, "unless there is a compelling need, established by evidence, for an ex parte order."[1]

  1. ↑ Mercier v. Nova Scotia (Attorney General), 2012 NSCA 25

Notice

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Notice of Application must set out sufficient particulars to be meaningful. A notice without particulars will not constitute notice at all.[1]

Objections to the admissibility of evidence must be made at or before the evidence is tendered.[2]

  1. ↑ R v Kutynec (1992) 70 CCC (3d) 289 (ONCA) ("if the facts as alleged by the defence in its summary provide no basis for a finding of a Charter infringement... then the trial judge should dismiss the motion without hearing evidence.")
    R. v. Kovac, [1998] O.J. No. 2347 (Gen. Div.) (“In the adversarial trial system, the court, the accused, and the community are entitled to have two informed and prepared litigants conducting the case…The Crown is entitled to be represented in name and substance”)
  2. ↑ R. v. Phillips, 2003 SKQB 330 at para. 9

Voir Dire

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A Voir Dire is an in-trial hearing that is considered a separate hearing from the trial itself. It is known as a "trial within a trial" and designed to determine an issue separate from the trial on matters of procedure or admissibility of evidence.

Procedurally, a voir dire for the validity of a warrant should proceed as follows:[1]

(a) The trial judge should determine whether a voir dire is necessary and, if so, whether the calling of evidence should be permitted;
(b) If the judge accedes to the request to hold a voir dire and the accused wishes to cross-examine the informant, then the accused must obtain leave of the judge to do so. If the judge grants leave, then he or she can limit the scope of the cross-examination;
(c) Cross-examination should proceed to the extent permitted by the order granting leave;
(d) Re-examination, if any, should follow the cross-examination; and
(e) The trial judge should determine whether the record as amplified on the review could support the issuance of the warrant.

The failure of holding a voir dire to determine if potentially inadmissible evidence should be heard will not not always be fatal to the trial. Where the evidence is still tested and there is no prejudice to the accused to may still be valid. The court must consider whether the process was followed that served the same purpose as the voir dire.[2]

There seems to be some ability to make a motion for "non-suit or directed verdict" motion by the responding party to a voir dire application.[3]



  1. ↑ R. v. Wilson, 2011 BCCA 252 at para 69
  2. ↑ R. v. D.A.R., 2012 NSCA 31 (CanLII)
  3. ↑ R v Gartland, 1981 CarswellOnt 1845, 7 W.C.B. 110 at para. 26 (the accused person must be afforded "every essential procedural step and safeguard available to him on his trial on the merits of the substantive offence, in so far as it can be applicable...") cited also in R v T.(B.) 2012 NSPC 59

Evidence

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The evidence heard in a voir dire can become evidence of the trial proper where it has been found admissible in the voir dire and both parties consent.[1]

Charter applications require a factual record. They cannot be argued in a vacuum.[2]

Affidavits that are based on hearsay should be given little weight and generally should not be considered admissible as evidence on a Charter application.[3]

  1. ↑ R. v. Jir, 2010 BCCA 497 at para. 10; R. v. Ballendine, 2011 BCCA 221 at para. 84
  2. ↑ See MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357
    Danson v. Ontario, 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086
  3. ↑ R. v. Darrach, 2000 SCC 46, [2000] 2 SCR 443
    R. v. Harris, 1994 CanLII 2986 (ONCA)
    R v Herter, 2009 ONCJ 378 at para. 1

Re-opening Motions or Applications

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A motion, application or appeal that has not been decided on its merits can be re-opened at the discretion of the court. The applicant has a "heavy onus" to show that it is in the "interests of justice" to reopen the matter.[1]

Factors to consider include:[2]

  1. the length of delay between the dismissal and the application for reinstatement, and the adequacy of the explanation offered for that delay;[3]
  2. whether the Appellant contributed to the delay;[4]
  3. whether the Appellant had a bona fide intention to pursue the appeal throughout the proceedings;[5]
  4. whether the initial Order was made in error, or the Court was operating under some misunderstanding of the material facts;[6]
  5. the effect reinstatement would have on public confidence in the administration of justice;[7]
  6. the seriousness of the charges[8]
  7. the merit of the appeal[9]
  1. ↑ R. v. Blaker 1983 CanLII 308 (BC CA), (1983), 6 C.C.C. (3d) 385 at 392, 393
  2. ↑ R. v. T.L.C., 2012 BCCA 131 at 26
  3. ↑ R. v. Findlay (1996), 79 B.C.A.C. 106 at para. 13
  4. ↑ R. v. Blaker at p. 393
  5. ↑ R. v. Clymore, 1999 BCCA 225, 134 C.C.C. (3d) 476 at para. 14
  6. ↑ R. v. Henry (1997), 100 B.C.A.C. 183 at para. 18
  7. ↑ R. v. Clymore at para. 16
  8. ↑ R. v. Blaker at p. 392
  9. ↑ R. v. Blaker at p. 392; R. v. Clymore at para. 14

Charter Motions

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A Charter motion is a defence application alleging a breach of a provision of the Charter.

In certain circumstances, trial judges may be permitted to raise a charter issue on behalf of the accused, particularly where they are self-represented.[1] However, interference of the judge may amount to reasonable apprehension of bias.[2]

A Charter application must be heard by a "court of competent jurisdiction". This is a court that has jurisdiction over the subject matter, the person and the remedy.[3] This will generally be the trial judge.[4]

  1. ↑ R v Travers 2001 NSCA 71
  2. ↑ R v Youngpine 2009 ABCA 89
  3. ↑ R v Hynes 2001 SCC 82
  4. ↑ R v Rahey [1987] 1 SCR 588

Burden and Standard of Proof

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The burden of proving a violation of any constitutional right is upon the applicant.[1] The evidence must be "sufficiently clear, convincing and cogent" to establish the breach on a balance of probabilities.[2]

If the evidence is not sufficiently persuasive one way or another, the court must find there was no Charter violation.[3]

  1. ↑ R. v. Collins, 1987 CanLII 84 at
  2. ↑ F.H. V. McDougall, 2008 SCC 53 at 46
  3. ↑ R. v. Hardenstine, 2010 BCSC 899 (CanLII), 2010 BCSC 899, paras. 27, 34, referring to R. v. Collins 1987 CanLII 84 (SCC), (1987), 33 C.C.C. (3d) 1 (S.C.C.)

Standing

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A person must have personal Charter-protected rights to make a claim of a violation under the Charter and seek a remedy under s. 24(2) of the Charter. 

There is no rule of automatic standing in challenging a search. Only a party who can establish a personal right to privacy (i.e. a "reasonable expectation of privacy") can challenge a search.[1]

An accused is not entitled to rely on a possible violation of the Charter rights of a co-accused.[2]

For example, where the accused is a passenger of the vehicle, the accused will not have standing to bring a Charter application as there is no privacy interest as a passenger, at least so diminished as to not have any Charter protection.[3]

A child under the age of 12 cannot be charged with an offence [4]and so they do not have standing to make any claim for a breach of s.8 Charter rights.

In section 8 Charter applications, standing exists where it has been established that the accused had a Reasonable Expectation of Privacy to the target of the search.

  1. ↑ e.g. R. v. Fankhanel, 1999 CanLII 19075 (AB QB) at para. 12 citing R. v. Edwards (1996), 104 C.C.C.(3d) 137 (S.C.C.)
  2. ↑ R. v. Sandhu, (1993) 28 B.C.A.C. 203 (BCCA)
  3. ↑ R. v. Ramos, 2011 SKCA 63 (CanLII), 371 Sask. R. 308
  4. ↑ YCJA s.2 defines "young person" as age 12 to 18

Notice

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An Accused must prove a Charter violation through conducting a voir dire. Notice must give notice of a Charter application or else the application can be rejected without hearing evidence.[1] Notice must outline some facts, sometimes with a supporting affidavit. [2]

There is no "absolute entitlement to an evidentiary hearing", rather there must be a "factual and legal basis" for any motion.[3]

There is a duty upon defence to raise any Charter issues before trial.[4]

Verbal notice on the day of trial can be found insufficient notice.[5]

A threshold examination must be made to determine if on a balance of probabilities that the accused may be entitled to a Charter remedy and that the right was asserted as reasonably early as possible.[6] Where there is no timely notice, the Court may refuse an application.[7]

The trial judge had discretion to refuse to hear any motions with no notice or insufficient notice. The Court must balance the efficient use of court resources with the determination of court matters. [8]

See also: R. v. Wilson 2011 BCCA 252
R. v. Ahmed-Kadir and McFadyen, 2011 BCPC 250

Failure to comply with rules of motion is not always fatal to the motion.[9]

Where the court rules have not been complied with, the court “has wide discretion in respect of procedure to facilitate a fair and expeditious determination of Charter issues”[10] Thus, even a late request for a Charter application can still be heard by the court.

The court may refuse to hear a Charter application where no notice is given.[11]

The right to make full answer and defence does not include right to trial by ambush.[12]

Since the crown may not know the whole charter evidence before the motion, they are entitled to call evidence after hearing from the defence.[13]

Where insufficient notice is given on a constitutional challenge the court may refuse to entertain the argument.[14]

Where a Charter issue is raised after the Crown's case, it cannot be based on the lack of evidence on the particular issue. By requiring the crown to present evidence supporting non-existent Charter motion is tantamount to shifting the burden on the crown to prove the absence of a breach.[15]

The defence should not generally be permitted to raise a Charter motion at any point after the close of the Crown's case.[16]

It is in the ultimate discretion of the trial judge to decide whether to permit a late Charter application.[17]

The defence cannot object to the admission of evidence on the basis of a Charter violation where it is first raised in closing.[18]

Prior to trial, the court may make inquiries into what Charter issues to be presented at trial. [19]

  1. ↑ R. v. Hamill (1984) 13 CCC 338 (BCCA)
    R. v. Kutynek
    R. v. Kutynec [1992] O.J. No. 347 at 16
    R. v. Vukelich (1996), 108 CCC 193 (BCCA) 1996 CanLII 1005
  2. ↑ R. v. Vukelich, supra, at para 17; R. v. Pires, 2005 SCC at para. 35
  3. ↑ R. v. Clancey [1992] OJ 3968 (Ont CJ (Gen Div))
  4. ↑ R. v. Kovac [1998] O.J. No. 2347 (Ont. C.J.) at p.9
  5. ↑ e.g. R. v. Mide [1998] A.J. No. 1384 (Alta. P.C.)
  6. ↑ Vukelich, supra
  7. ↑ see Kutynec at para 19
  8. ↑ R. v. Loveman (1992) 71 CCC (3d) 123
  9. ↑ R. v. Tillotson, 2011 ONSC 3390
  10. ↑ R. v. Blom 2002 CanLII 45026 (ON CA), (2002), 61 O.R. (3d) 51 (C.A.) at 21 and 22
  11. ↑ R v Rambissoon [2012] OJ 2305 (SCJ)
  12. ↑ R v Darrach, 2000 SCC 46 at para. 55
  13. ↑ R v Deveau 2011 NSCA 85
  14. ↑ R v Purtill [2012] OJ 2769 (SCJ)
  15. ↑ R v Furlong 2012 NLCA 29
  16. ↑ R. v. Chamberlain (1994), 30 C.R. (4th) 275 (Ont. C.A.) - judge was correct in exercising discretion to refuse to hear application
    R. v. Dwernychuk (1992), 77 C.C.C. (3d) 385 (Alta. C.A.)
  17. ↑ R. v. Habhab [1997] A.J. No. 175 (Alta P.C.) p. 9-10
  18. ↑ R v Kovac [1998] OJ 2347 (Gen. Div.)
    R. v. Nagda [2000] O.J. No. 5694 (Ont. C.J.) - Charter raised 10 months after trial, but before closing submission
  19. ↑ R v. Yorke (1992) 115 NSR (2d) (NSCA) ("It is basic to any adversarial system that a litigant applying for curial relief advise the court and the opponent of the application")
    R. v. Kingsbury [1997] O.J. No. 5438 (Ont. C.J.)

On Appeal but Not Raised at Trial

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An accused may raise a new issue on appeal only with leave of the court.[1]

Even where leave is not requested, particularly where the accused is self-represented on appeal, the court may still consider whether to grant leave.[2]

  1. ↑ R. v. Aisthorpe, 2006 NLCA 40
  2. ↑ R. v. O'Keefe (No. 2), 2012 NLCA 25 at 24 to 27

Briefs

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The crown does not need to file a brief responding to an accused's Charter motion. He may instead wait until the conclusion of the accused's evidence to decide.[1]

  1. ↑ R. v. Deveau, 2011 NSCA 85 (CanLII)
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