Under Section 24(2) of the Canadian Charter of Rights and Freedoms, if police violate your constitutional rights during a search, your criminal defence lawyer can apply to have the seized drugs excluded from trial. If successful, the Crown often loses its main evidence, which can lead to your charges being dropped.
Being charged with a drug-related indictable offence under Canada’s Controlled Drugs and Substances Act is a frightening experience. However, simply because the police found illegal substances in your car or home does not automatically mean you will be convicted. In Canada, law enforcement must strictly follow the rules laid out in the Charter of Rights and Freedoms when conducting searches or detaining suspects.
If the police conduct an illegal search, hold you without cause, or deny your right to call a lawyer, your defence counsel can file a Section 24(2) Charter Application. ⚠ This legal motion argues that admitting the unconstitutionally seized evidence would bring the administration of justice into disrepute. Whether you are facing court in Toronto, Vancouver, or Calgary, this is one of the most powerful tools in Canadian criminal law.
Step-by-Step Process for a Section 24(2) Application in Canada
Filing a Charter application is a highly technical process. Whether your trial is at the Superior Court of Justice in Ontario or the Court of King’s Bench in Alberta, the steps generally look like this.
Step 1: Identifying the Charter Violation
First, your law firm will review the police disclosure (officer notes, body-cam footage, and search warrants). They look for breaches, such as a Section 8 violation (unreasonable search and seizure) or a Section 10(b) violation (failure to provide the right to counsel). If a breach is identified, the strategy shifts to excluding the evidence.
Step 2: Filing the Notice of Application
Your lawyer must officially notify the Crown prosecutor and the court by filing a Notice of Charter Application before the trial begins. 📝 This document outlines exactly which Charter rights were violated and states that you will be seeking the exclusion of the drug evidence under Section 24(2).
Step 3: The Voir Dire (Trial Within a Trial)
The judge will hold a “voir dire”—a mini-trial that happens before the main trial decides your guilt. During the voir dire, the police officers will be cross-examined by your lawyer about their behaviour and the steps they took during your arrest. The sole purpose here is to prove that your constitutional rights were actually breached.
Step 4: Applying the “Grant Test”
If the judge agrees your rights were violated, they must decide whether to throw out the drugs. They use the Supreme Court’s Grant Test, which weighs three factors: the seriousness of the police misconduct, the impact of the breach on your rights, and society’s interest in having the case decided on its merits. ▶️ If the police acted maliciously or recklessly, the judge is more likely to exclude the evidence to protect the integrity of the justice system.
The Grant Test: Will the Drugs be Excluded?
| 1. Seriousness of Police Conduct | Did the police make an honest mistake, or did they deliberately ignore the law? Bad faith behaviour makes exclusion highly likely. |
| 2. Impact on the Accused | How invasive was the search? A strip search or a warrantless home invasion impacts your privacy far more than looking in a gym bag. |
| 3. Society’s Interest | Is the evidence crucial? While society wants drug traffickers caught, the courts prioritize long-term public trust in a fair legal system over a single conviction. |
How Much Does a Defence Lawyer Cost?
Fighting drug charges and running complex Charter applications requires a highly skilled criminal defence lawyer. Fees vary by province and the complexity of the case. 💵 For a summary conviction or minor drug possession trial, fees may range from $3,000 to $7,000 CAD. For serious indictable offences like drug trafficking, taking a Charter application to a Superior Court trial can easily cost between $15,000 and $30,000 CAD or more.
How Long Does the Process Take?
The Canadian justice system moves slowly. From the date of your arrest to the date of your voir dire and trial, you can typically expect a timeline of 10 to 18 months. The Supreme Court’s Jordan decision generally requires that trials be completed within 18 months for provincial courts and 30 months for superior courts.
Frequently Asked Questions (FAQ)
If the judge excludes the drugs, do I automatically win?
Usually, yes. In a drug possession or trafficking case, the physical drugs are the primary evidence. If they are excluded under Section 24(2), the Crown prosecutor will typically invite the judge to acquit you or will withdraw the charges because they no longer have a case.
Can the police search my car if they smell marijuana?
Under the federal Cannabis Act, the smell of marijuana alone in a vehicle can sometimes provide grounds for a search depending on provincial laws regarding accessible cannabis. However, if the search escalates unlawfully, your lawyer can still challenge it.
What happens if the police forgot to read me my rights?
Failing to read you your Section 10(b) right to counsel is a serious Charter breach. Any statements you made, and sometimes physical evidence found directly because of those statements, could be excluded at trial.
Do I have to testify during the Charter voir dire?
You might have to. Often, an accused will testify during the voir dire specifically to explain how their rights were violated. This testimony generally cannot be used against you in the main trial to prove your guilt.
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