Before a criminal trial actually begins in Ontario, defence counsel or the Crown can bring formal legal arguments before the court, generally called applications or motions, asking a judge to decide a specific legal issue in advance of, or at the start of, the trial itself. Many of these applications concern the Canadian Charter of Rights and Freedoms, and some of the most significant ones can affect what evidence is used at trial or even whether a trial can fairly proceed at all. This guide gives a general overview of pretrial applications and motions in Ontario criminal matters. It is general information only and not legal advice about a specific case.
Pretrial applications are a distinct step from the trial's main evidence and argument on guilt or innocence. They deal with legal questions about how the case is allowed to proceed, such as whether certain evidence can be used at all, or whether the case has taken so long that it must be stayed, rather than with the ultimate question of whether the Crown has proven the charge.
What Are Pretrial Applications?
A pretrial application, sometimes called a pretrial motion, is a formal request asking a judge to rule on a specific legal issue in a criminal case, generally before the main trial evidence is heard on the merits. Applications can be brought by the defence or, less commonly, by the Crown, and are supported by legal argument and, often, evidence specific to the issue being raised, separate from the evidence about the underlying charge itself.
Applications are typically identified and discussed in advance, including at a judicial pretrial conference, so that the court and parties can plan for how and when the application will be argued, whether before the scheduled trial date or at its outset.
The Voir Dire Process
Charter and other pretrial applications are generally argued and decided through a process called a voir dire, which is essentially a hearing within the larger case, often described as a "trial within a trial." During a voir dire, the judge hears evidence and legal argument specific to the application, such as testimony from the officer involved in a search, and then rules on the legal issue raised, such as whether a Charter breach occurred and, if so, what the remedy should be. A voir dire can happen before the jury is selected, or, in a judge-alone trial, as a discrete stage within the proceeding.
Applications to Exclude Evidence Under Section 24(2)
One of the most common types of pretrial application in criminal cases is a request to exclude evidence under section 24(2) of the Charter, on the basis that the evidence was obtained in a way that breached the accused person's Charter rights. Section 24(2) allows a court to exclude evidence obtained in a manner that infringed the Charter where admitting it would bring the administration of justice into disrepute. This is not an automatic remedy; a breach does not necessarily mean the evidence will be excluded, and the court must weigh a number of factors before deciding.
Common Charter Breaches Behind These Applications
Section 24(2) applications commonly arise from breaches of a few specific Charter rights:
- Section 8, the right to be secure against unreasonable search and seizure, such as where police search a person, vehicle, or home without proper legal authority. See our guides to police searches, search warrants, and consent to a search.
- Section 9, the right not to be arbitrarily detained or imprisoned, which can be raised where a detention was not legally justified. See our guide to being detained.
- Section 10(b), the right to retain and instruct counsel without delay upon arrest or detention, and to be informed of that right. See our guide to the right to a lawyer.
Where police conduct is found to have breached one of these rights, and evidence was obtained as a result, such as physical evidence found in a search or a statement made without access to counsel, the defence can bring a section 24(2) application asking the court to exclude that evidence from the trial. See our guide to statements to police for related issues involving statement evidence specifically.
How Courts Decide Whether to Exclude Evidence
Once a Charter breach is established on a voir dire, the court applies a balancing test, generally derived from the Supreme Court of Canada's guidance, weighing three broad considerations: the seriousness of the Charter-infringing conduct, the impact of the breach on the Charter-protected interests of the accused, and society's interest in having the case decided on its merits. No single factor is automatically decisive; the court weighs all three together in deciding whether admitting the evidence would bring the administration of justice into disrepute.
A Charter breach does not automatically mean evidence will be excluded, and the absence of a breach does not automatically mean evidence will be admitted without challenge. Whether an application is worth bringing, and how strong it is, depends heavily on the specific facts, which is why this is an area where a lawyer's assessment matters a great deal.
Unreasonable Delay Applications Under Section 11(b)
Another significant category of pretrial application concerns unreasonable delay under section 11(b) of the Charter, which guarantees the right to be tried within a reasonable time. If a case has taken too long to get to trial, without adequate justification, the defence can bring an application seeking a stay of proceedings, meaning the charge is halted and does not proceed further. This is a significant remedy and is treated seriously by the courts.
The Jordan Framework and Presumptive Ceilings
The modern framework for unreasonable delay applications comes from the Supreme Court of Canada's decision in R. v. Jordan, 2016 SCC 27. That decision established presumptive ceilings on the total time a case can take, measured from the charge to the actual or anticipated end of trial, beyond which delay is presumed unreasonable unless the Crown can point to exceptional circumstances. The presumptive ceiling is generally described as approximately 18 months for cases tried in the Ontario Court of Justice, and approximately 30 months for cases tried in the Superior Court of Justice, including matters that proceed by way of a preliminary inquiry.
Delay caused by, or waived by, the defence does not count toward these ceilings, and the framework also allows for exceptional circumstances, such as truly unforeseeable or unavoidable events, to justify delay beyond the presumptive ceiling in a particular case. Once the ceiling is exceeded, the burden shifts to the Crown to justify the delay; below the ceiling, the defence generally bears the burden of showing the delay was nonetheless unreasonable, which is a more difficult argument to make successfully. Calculating what counts toward the ceiling in a specific case is often legally technical, and is best assessed by a lawyer familiar with the file's full procedural history.
Other Types of Pretrial Applications
Section 24(2) exclusion applications and section 11(b) delay applications are two of the more common pretrial applications, but they are not the only ones. Other examples include applications challenging the validity of a search warrant directly, applications regarding the admissibility of an out-of-court statement, and applications addressing procedural issues specific to a case. Which applications, if any, are appropriate depends entirely on the facts and procedural history of the specific case.
Why These Applications Matter
Pretrial applications can have a decisive effect on a case. Successfully excluding a key piece of evidence, or securing a stay of proceedings for unreasonable delay, can fundamentally change, or even end, a prosecution before the trial evidence is ever heard on its merits. Identifying whether a genuine basis for an application exists generally requires a careful review of disclosure and the procedural history of the case, which is one more reason early legal advice, and ongoing review of disclosure as it is received, matters throughout a case. See our guides to disclosure and getting legal advice.
Frequently Asked Questions
What is a voir dire?
A voir dire is a hearing within a criminal case, sometimes called a trial within a trial, used to argue and decide specific legal issues, such as a Charter application, separately from the main evidence about the charge itself.
Does a Charter breach automatically get evidence excluded?
No. A finding that a Charter breach occurred is a necessary first step, but the court must then weigh several factors to decide whether excluding the evidence is the appropriate remedy.
What are the Jordan ceilings?
Following R. v. Jordan, delay is presumed unreasonable once it exceeds approximately 18 months for a case tried in the Ontario Court of Justice, or approximately 30 months for a case tried in the Superior Court of Justice, subject to adjustments for defence delay and exceptional circumstances.
What happens if my case is found to have taken too long?
If a court finds the delay unreasonable under section 11(b) of the Charter, the usual remedy is a stay of proceedings, meaning the charge does not proceed further.
Can the Crown bring pretrial applications too?
Yes, though most reported Charter applications in criminal cases are brought by the defence. The Crown can also raise procedural or evidentiary issues by way of application in appropriate circumstances.
How do I know if I have a basis for a Charter application?
This requires a careful review of the specific facts, including disclosure, by a lawyer. There is no general rule that applies to every case, since the outcome depends heavily on precisely what happened during the investigation.