Sunday, February 28, 2016

Notice requirements for Charter applications unconstitutional and no applicable where such requirements undermine Charter rights

R. v Kalleo, 2016 CanLII 7716:

[25] In circumstances like these there is a right for an in-custody accused to have immediate access to the Canadian Charter of Rights and Freedoms. The notion that a person bears the constraint of Rule 14 of the Rules of the Provincial Court of Newfoundland and Labradorrequiring an in-custody accused to give significant notice to the Crown of a constitutional argument is questionable. Such a rule must, necessarily, be unconstitutional, under such circumstances. Otherwise, the Charter and access to justice remain illusions. If the Defence raises a constitutional issue such as this as it occurs, and the judge considers it necessary to provide the Crown with some time to respond, then the length of that notice should be left in the discretion of the judge, not subject to an inflexible rule that effectively denies the in-custody accused of any practical or reasonable Charter remedy.


[26] The Charter is a fundamental and foundational document in Canadian law and must be available, in circumstances like the present case, immediately. We have had sufficient time since the Charter came into existence, and sufficient legal and judicial experience with it, for Crown and Defence to be aware of its impact on in-custody situations such as this, and to argue its applicability including appropriate remedies immediately without notice

Of the Law Societies of Upper Canada and Nunavut