The Charter: Defending, Prosecuting & Theorizing on Rights & Remedies |

The Charter: Defending, Prosecuting and Theorizing on Rights and Remedies

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Professionalism (Ethics, etc.): 0.25
15 minutes
Substantive: 0.5
35 minutes
Sayeh Hassan
Kent Roach
Kim Schofield
Paul Zambonini
Toronto Lawyers Association (TLA)
50 minutes
$89.00 plus tax

With the “bombshell” that is R v. Jordan, all eyes are once again on the Charter of Rights and Freedoms. While the first instinct of many defence lawyers is to jump at a chance to stay the charges, the Charter offers numerous other remedies. Join us as our experienced panellists - a Crown, Defence and Professor - sit down to talk about sections 11b, 7 and 24(1) of the Charter and walk you through:

  • Delay and Stays – the legal and practical implications of Jordan, transition cases and co-accused delay
  • Life, Liberty and Security of Person - when to bring an application and when a stay is warranted
  • Stays and Alternative Remedies - sentence reduction and other alternative remedies

Paul Zambonini (15 minutes) - Duty to avoid and manage conflicts of interest, Duty to act in good faith and avoid sharp practice, Duties related to advocacy (not to abuse the tribunal process, mislead the tribunal, parameters around communication with witnesses, need for full disclosure, etc.), Ethical considerations for lawyers or paralegals employed in public service (Crown), Practising with civility in the courtroom or the boardroom, Treating the court, tribunal, opposing counsel, parties and others with courtesy and respect, Refraining from sharp practice, Encouraging respect for legal institutions or authorities

  • One of the big takeaways from Jordan is the elimination of the ‘culture of complacency’ and the need for us all to work together. From the Crown’s perspective, we also have a duty (as we have always had) to keep the accused’s rights in the forefront of our minds while making decisions.
  • Jordan – what it means – legal and practical implications to the new 11(b) regime
  • SCJ vs. OCJ
  • Dealing with co-accuseds – Ny and Pham vs. Brissett
  • Picard – complexity and transitional cases
  • How the Crown’s office is responding – VFM, Disclosure, SCOPE, direct indictments, resolution, severance
  • The duty of all justice system participants to work together to minimize delay

Kent Roach (15 minutes)

  • He will examine use of stays and possible alternatives for s.11(b) violations and sentence reductions as a Charter remedy, drawing on ch 9 of his Constitutional remedies in Canada 2nd ed (Toronto: Canada Law Book, 2013 and as updated yearly)

Kim Schofield – (15 minutes) - Charter s. 7 - Summary of Presentation

  • Deciding whether to bring the s. 7 application – I will discuss the strategic considerations that must be evaluated when deciding whether or not to bring an application under s. 7 of the Charter. Where there are other Charter issues present in a given case, the state conduct which might otherwise be the subject of a s. 7 application can often effectively be canvassed under s. 24(2). I will address the contexts where s. 7 will be the preferred methodology as opposed to litigating the issues under s. 24.
  • Gathering evidence – I will discuss the relevant considerations in deciding how to investigate an alleged breach of s. 7 of the Charter, including strategies for identifying potential issues in the initial interview with a client through to effective methods of compelling disclosure of potentially relevant records from third parties.
  • Preparing and arguing the application – I will discuss effective approaches for the preparation of materials for the s. 7 application, including how to frame the Notice of Application and determining how to lead the relevant evidence. I will also discuss effective advocacy for litigating the Charter motion in front of the application judge.

Questions that Sayeh has designed for the speakers (60 minutes)

11b Related Questions:

  1. Under Jordan who bears the responsibility of ordering the transcripts and why?
  2. What role does "personal prejudice" play in delay applications under Jordan?
  3. What are the expectations with respect to ordering questions in cases with long preliminary hearings or even trial?

S. 7 Related Questions:

  1. Is there any obligation to disclose a s. 7 argument to the Crown? if so at what stage of the process?
  2. Are there any benefits to disclosing a charter application early on in the process? Does that play a role in negotiating a sentence on an early plea?
  3. Any tips or pointers for bringing a successful .s. 7 application?
  4. Can you give us examples of circumstances where bringing a s. 7 application would be appropriate v. times when it would not be appropriate?

Alternative Remedies Questions:

  1. What are the best ways to utilize alternative remedies for maximum benefits for client?
  2. When is the appropriate time to ask for an alternative remedy, before or after bringing the Charter application?


Sayeh Hassan

Sayeh Hassan is a criminal defence lawyer practicing with Walter Fox & Associates. She completed her Hons. BA at Carleton University in Psychology and Mass Communication and achieved an LL.B. at the University of Ottawa in 2006. She has appeared at all levels of court in Ontario and the Supreme Court of British Columbia.

Kent Roach

Kim Schofield

Paul Zambonini

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