Patrick J Ducharme

Patrick Ducharme

Section 52(1) provides that the Constitution Act is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Thus, applications to strike down legislation are made under this section. These applications must comply with Rule 27. Applications must be served on the Constitutional Law Division of the Ministry of the Attorney General of Ontario and the Regional Office of the Attorney General of Canada at Toronto or the office of the Attorney General of Canada at Ottawa and the office of the prosecutor having carriage of the proceedings;
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Patrick J Ducharme

Section 52(1) of the Constitution Act, 1982, provides:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Continue reading “Pre-trials: Applications to Strike Down Legislation”

Patrick Ducharme

On a Charter application, the applicant bears the legal burden of establishing a breach of a constitutional right on the civil standard of a balance of probabilities. On occasion the legal burden of proof will shift, for example, where the applicant alleges a breach of section 8 and it is established that the search in question was without warrant. Once established, there is a presumption of illegality and the burden shifts to the prosecution to establish the reasonableness of the search, despite the fact it was conducted without the authority of a judicial officer via the issuance of a search warrant.

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Patrick Ducharme

At the start of any proceeding, it is common practice to make a request for exclusion of witnesses. Our courts have determined that the circumstances justifying the refusal of such an order “will be very far and few between.”1
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Patrick J Ducharme

Before defence counsel may withdraw, he or she requires the permission of the court. A formal application must be brought to the court seeking leave to withdraw.
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Patrick Ducharme

Once counsel is “on the record” as the official legal representative of the accused, an order of the court must be obtained to be removed or to withdraw as counsel for the accused. Rule 25 deals with applications of this type. The accused may consent in writing to the order sought and a draft order may be prepared in advance.
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Patrick Ducharme

Examples of Common Pre-Trial Applications

The following are examples of common pre-trial applications.

Production and Disclosure of Therapeutic Records in the Possession of Third Parties

A “record” that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic counseling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information must be applied for pursuant to the regime set out in sections 278.1 to 278.91 of the Code.
Generally, a Judge asked to consider such an application, holds a hearing privately to determine whether to order the person who has possession or control of the record to produce it to the court for review. The person who has possession or control of the record, the complainant or witness, and any other person to whom the record relates may appear and make submissions, but they are not compellable. For counsel to come within the parameters of this statutory regime will often be as difficult as the proverbial biblical reference of fitting into the “eye of the needle.”
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Patrick J Ducharme

A trial Judge, sitting alone, may hear pre-trial applications and reserve judgment on the applications until the completion of trial. When the reasons are delivered, they are deemed to have been given at trial.
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Patrick Ducharme

The party requesting the adjournment must show:

1. The absent witness is material; and,
2. No neglect in procuring (or attempting to procure) the attendance of the absent witness, and,
3. There is a reasonable expectation the absent witness can be located and presented as a witness in relatively near future.
These three requirements for adjourning a trial based on an absent witness whose evidence is material were first required by the Supreme Court of Canada over sixty years ago, and these three requirements have been used assiduously by courts across Canada since this venerable decision in 1956.

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Patrick Ducharme

Applications for adjournments are to be made by either party at least fifteen days before the date fixed for the hearing of the application, and not less than ten days prior to the date fixed for trial.1 The application is to be accompanied by an affidavit by or on behalf of the applicant containing the information that is set out in Rule 26.04(2). Practically, some adjournment requests are made at the proverbial “last minute” prior to trial. The trial Judge has jurisdiction to grant a request with merit at any time.
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