If you are charged with a criminal offence do not plead guilty before you consult with one of our lawyers. There may be a defence or other technical argument available that is not obvious to you but may yield a successful result. Furthermore the allegations and the evidence may be challenged successfully under the Canadian Charter of Rights and Freedoms. We may be able to have the charges against you thrown out altogether or have evidence obtained against you excluded from your trial as a result of a breach of your Charter rights. At Kostman & Pyzer, our law firm has extensive experience and a high rate of success in litigating Charter defences and challenges. Our firm has successfully defended criminal charges based on Charter of Rights challenges on numerous occasions. We have successfully argued that inculpatory evidence such as statements or forensic evidence should be excluded at trial due to breaches of our clients’ Charter rights. We have also brought about a successful conclusion to very serious cases as a result of Charter of Rights arguments based on a breach of our clients’ right to trial within a reasonable time or the improper conduct of police officers. Our firm will fight for your rights and hold the police accountable for any breaches of your constitutional rights! We fight for your rights and we fight to win!
The Canadian Charter of Rights and Freedoms guarantees basic fundamental civil liberties that are the rights of everyone in Canada. In the context of the criminal law these rights are:
Section 7:
This section declares the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Criminal accusations can be challenged on the basis of the loss or destruction of evidence, pre-charge delays, or some other aspect of the investigation that impacts upon our ability to make full answer and defence. For instance, recently in some jurisdictions drinking and driving related charges have been thrown out by the Courts as a condemnation of the police practice of destroying videotape evidence of breath testing procedures.
Section 8:
Section 8 declares the right to be secure against unreasonable search or seizure. Examples of breaches of your section 8 Charter rights include, warrantless searches of your home, motor vehicles, clothing and other personal items by police officers. Criminal charges can be challenged where the police search without warrant or reasonable grounds! The fact that a police suspicion or hunch turned out to be right, will not cure the illegal search. Ordinarily evidence obtained in this manner will be excluded at trial.
Section 9:
According to section 9 of the Charter of Rights, no person should be arbitrarily detained or imprisoned. The police must have reasonable grounds to believe an individual has committed, or is about to commit a criminal offence before they are permitted to stop and investigate them. If you are arbitrarily detained or imprisoned the underlying criminal accusation may be challenged irrespective of whether or not the evidence obtained against you is directly related. Examples of breaches of your section 9 Charter rights include, arbitrary motor vehicle investigations or police contact based on racial profiling or suspicion, or, detention at a police station without cause, or undue delay in bringing an accused person before a Justice for a bail hearing.
Section 10:
This section of the Charter of Rights declares that every person has the right upon arrest or detention to be informed promptly of the reasons for their detention, the right to retain and instruct counsel without delay and to be informed of that right. The right to counsel is infringed when police arrest or detain individuals who they believe have committed criminal offences and fail to advise them that not only do they have the right to contact a lawyer but that they will provide access to the lawyer (private or duty counsel) before they are questioned. The police must also give you a reasonable opportunity to contact your lawyer of choice so that you may obtain meaningful legal advice. If the focus of the police investigation shifts from one offence to multiple offences or from a minor offence to a more serious offence, an accused person must be given an opportunity to speak with their lawyer again, even if they have already consulted their lawyer, so that they may be informed of the extent of their legal jeopardy and obtain meaningful legal advice. It is critical that any person questioned by the police obtain legal advice as to whether or not to make a statement to police and the risks associated with making such a statement. The failure of the police to inform an accused person of their right to counsel prior to making a statement will ordinarily result in the statement being excluded as evidence at the trial.
Section 11:
Section 11 of the Charter of Rights includes, the right to be informed without unreasonable delay of the specific offence, the right to be tried within a reasonable time, the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal, and, the right not to be denied reasonable bail without just cause. The right to trial within a reasonable period of time (section 11(b)) is an important tool in the defence arsenal. Due to the significant prejudice that a criminal accusation brings, there is an expectation that the delay between the time when a person is charged and their trial is a time-limited one. Where the delay exceeds a reasonable standard, the Courts will intervene and put an end to the prosecution. The Supreme Court of Canada has stated that in Provincial Court, an accused should be brought to trial generally within eight to ten months. In Superior Court, an additional six to eight months of delay after committal is viewed as acceptable.
Section 12:
Section 12 of the Charter of Rights declares the right not to be subjected to any cruel and unusual treatment or punishment. This section dictates that all individuals should be treated with dignity at every phase of the criminal justice process. Where the police use excessive force or other unconscionable behavior during the course of an arrest, section 12 and section 7 (security of the person) of the Charter of Rights may offer an individual a recourse at trial. Section 12 ensures that any sentence or punishment for an offence is humane.
At Kostman and Pyzer, we will challenge any aspect of the prosecution that involves a breach of our clients’ Charter rights if we are of the view that it will advance our defence position. Our target is always the successful conclusion of the client’s case.
