In Canada, the Charter of Rights and Freedoms serves as a vital safeguard for individuals involved in the criminal justice system—whether they are citizens, permanent residents, or visitors. These protections begin the moment someone is suspected or detained for a criminal offence and extend through arrest, trial, and sentencing.
Some of the most fundamental Charter rights in this context include:
- The right not to be arbitrarily detained or imprisoned (Section 9),
- The right to be informed promptly of the reasons for detention and the right to
- retain and instruct counsel without delay (Section 10),
- The right against unreasonable search and seizure (Section 8),
- The right to be tried within a reasonable time (Section 11(b)),
- And the overarching right to life, liberty, and security of the person under Section 7.
These rights are not merely technicalities—they are central to ensuring fairness, transparency, and accountability in the justice process.
Table of Contents
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Addressing Charter Breaches in Court
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Sentence Reduction as a Remedy
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Case Examples of Sentence Reduction
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Beyond Section 24(1): Sentencing Discretion and the Criminal Code
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Limits and Exceptional Cases
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Conclusion
Addressing Charter Breaches in Court
When a Charter breach is alleged, the defence must navigate a two-stage process. First, the breach must be established on the facts. Second, a remedy must be sought—commonly under Section 24(1), which empowers courts to grant appropriate and just remedies in the circumstances. Exclusion of evidence or a stay of proceedings are traditional remedies. However, even where those are not appropriate, such as after a guilty plea or conviction, sentencing can still be shaped by state misconduct.
Sentence Reduction as a Remedy
One meaningful response to state misconduct is a reduction in sentence, even where guilt is admitted or proven. This allows courts to acknowledge the seriousness of the Charter breach without necessarily absolving the offender of responsibility. A sentence below the usual range, or even below a mandatory minimum, can be justified in the interest of justice.
Two recent cases highlight how Canadian courts apply this principle:
1. Improper Retention of Seized Property (Section 8 Violation)
A six-month jail sentence was reduced to 90 days when the RCMP failed to obtain judicial authorization to retain property seized during a criminal investigation. This violated the accused’s right against unreasonable search and seizure under Section 8. The Crown Prosecutor agreed that the state’s failure to follow proper legal procedures warranted a shorter sentence to reflect the seriousness of the breach. Crown and defence counsel offered the Court a joint submission in a sentencing hearing after a guilty plea.
2. Unlawful Detention and Denial of Counsel (Section 10 Violation)
In another case, a charge of second-degree murder was reduced to a plea to manslaughter following a preliminary inquiry. The inquiry revealed that police had unlawfully detained and questioned the suspect without informing them of the detention or granting access to legal counsel. This conduct breached Sections 10(a) and 10(b) of the Charter. The Crown Prosecutor concluded that the integrity of the investigation was compromised and that a reduced charge was the appropriate remedy.
These outcomes show that Charter breaches can significantly influence both the outcome and severity of a criminal case, even in serious matters like homicide.
Beyond Section 24(1): Sentencing Discretion and the Criminal Code
Not all Charter-related sentencing reductions require a formal Section 24(1) application. In many cases, where the state’s misconduct is closely tied to the offender or the offence itself, courts may rely on the sentencing principles embedded in the Criminal Code. These include considerations of proportionality, the circumstances of the offender, and whether mitigating factors apply.
For example, mistreatment by police during arrest or detention may be treated as a mitigating circumstance in sentencing, even if no formal Charter application is brought. This approach allows judges to respond contextually and proportionately to unconstitutional conduct without undermining the sentencing framework.
Limits and Exceptional Cases
While sentencing judges have broad discretion, they are still constrained by statutory minimums and other legal limits. However, in exceptional cases of egregious state conduct, Section 24(1) may still be used to justify a sentence below the minimum or outside standard sentencing norms. That said, courts have cautioned against over-reliance on Charter remedies during sentencing, emphasizing that existing sentencing law already provides sufficient tools to address most instances of state misconduct.
Conclusion
Charter breaches, particularly by police or other state actors, undermine public confidence in the justice system and can cause real harm to those accused of crimes.
Sentencing that recognizes and responds to such misconduct is essential—not to excuse the offence, but to affirm the principle that justice must be fair, even when holding individuals accountable. In doing so, the courts send a clear message:
Charter rights are not conditional—they are constitutional guarantees.
If you or someone you know has been impacted by a Charter breach, it’s crucial to have experienced legal representation. Reach out to BW Law for expert legal counsel in navigating Charter-related matters and ensuring your rights are upheld throughout the legal process.