Believing that police overstepped during an interaction, whether by searching somewhere they should not have, ignoring a request to speak with a lawyer, or using more force than the situation called for, is a genuinely unsettling experience. This guide walks through what to do in that situation, focusing on two separate tracks that often get confused with one another: raising the issue within a criminal case through a Charter application, and filing a conduct complaint with Ontario's police oversight body. Understanding the difference between these two paths matters, because they serve different purposes and lead to very different outcomes.
This article works well alongside our guides on police search powers and statements to police, and our broader Charter rights guide, which explains the underlying rights that may have been affected.
Document the Interaction While It's Fresh
Memory fades quickly, and small details, such as the exact wording an officer used, the order in which things happened, or the names of anyone else present, can matter a great deal later. As soon as it is safe and practical to do so, write down everything you remember: the date, time, and location; what you were doing before police arrived; what was said, as close to word for word as you can recall; whether you asked for a lawyer and what response you received; and the names or badge numbers of any officers involved, if you have them.
If there are witnesses who saw or heard part of the interaction, note their names and contact information if possible. Independent witness accounts can be genuinely valuable, both for a Charter application and for a conduct complaint, and they are much easier to gather soon after the event than months later.
Retain Counsel Promptly
If you are facing a criminal charge arising out of the same interaction, speaking with a lawyer promptly is particularly important, because any Charter issue generally needs to be raised within that criminal case. A lawyer can begin requesting relevant disclosure, such as officers' notes, any available video, and communications records, while that material is still likely to be available and before recollections fade further.
Even if no charge has been laid, or the charge seems unrelated to the conduct you are concerned about, speaking with a lawyer early can help you understand what options may realistically be available and how the two tracks discussed in this guide might apply to your situation.
How a Charter Application Generally Works
A common misconception is that a Charter issue means suing the police. In the criminal context, that is generally not how it works. Instead, where a person is already facing a criminal charge, an alleged Charter breach is typically raised through a formal application brought within that same criminal case, asking the court to find that a specific right, such as the section 8 protection against unreasonable search or the section 10(b) right to counsel, was breached, and to grant an appropriate remedy.
This kind of application is generally supported by disclosure and, often, evidence called at a hearing, such as testimony from the officers involved and, where relevant, the person themselves. It is a formal legal process with specific procedural requirements, which is part of why early legal involvement matters so much. A separate civil lawsuit against police for damages is a different legal process entirely, governed by its own rules, and raises different considerations from a Charter application within a criminal case.
The Section 24(2) Exclusion Remedy in Practice
Where a court finds that a Charter breach occurred, one available remedy is the exclusion of evidence obtained through that breach under section 24(2) of the Charter, where admitting it would bring the administration of justice into disrepute. In practical terms, this means that even where a breach is established, a separate step follows in which the court weighs a number of factors before deciding whether to exclude the evidence. Where important evidence is excluded, it can meaningfully affect the Crown's ability to proceed with the case, though this is never guaranteed and depends entirely on the specific facts. This process is generally addressed as part of the ordinary course of a criminal case, working through disclosure and, where the matter is not resolved earlier, at trial.
Do not assume that a Charter issue automatically means a case will be dismissed or evidence will be excluded. This is a discretionary, fact-specific remedy, and it should be assessed by a lawyer reviewing your disclosure rather than assumed based on a general sense that something felt wrong during the interaction.
The Separate Track: Filing an OIPRD Complaint
Separate from any criminal case, Ontario has an independent civilian oversight body for complaints about the conduct of police officers: the Office of the Independent Police Review Director (OIPRD). This process exists specifically to address concerns about how an officer behaved, separate from whether any resulting criminal case succeeds or fails. A conduct complaint filed with the OIPRD does not itself produce a remedy within a criminal case, such as excluding evidence, and it is not a substitute for the Charter application process described above.
This track can be appropriate where the primary concern is about an officer's conduct itself, rather than, or in addition to, its effect on a criminal case, for example where no charge was ultimately laid but the interaction still felt inappropriate. Because this is a specialized administrative process with its own procedures and timelines, anyone considering it should review the OIPRD's own guidance directly and consider discussing their specific situation with a lawyer beforehand, since this article is only general background and not instructions for pursuing a specific complaint.
Choosing Between, or Combining, the Two Tracks
These two tracks are not mutually exclusive. In some situations, it may make sense to pursue a Charter application within an ongoing criminal case and, separately, file a conduct complaint about the same interaction. In other situations, only one track will be relevant, for instance where no criminal case exists at all. Because these processes are structured differently and serve different purposes, deciding how to proceed is best done with the benefit of legal advice tailored to your specific circumstances, rather than by assuming one path automatically covers the other.
What to Do Next
If you believe police violated your rights during an interaction, a few general steps tend to be useful regardless of the specific circumstances:
- Write down everything you remember about the interaction as soon as possible, including timing, locations, and exact wording where you can recall it
- Note the names or badge numbers of any officers involved, and the contact information of any witnesses
- If you are facing a criminal charge, contact a criminal lawyer promptly so any Charter issue can be raised within that case
- If your primary concern is about officer conduct rather than a criminal case, look into the OIPRD complaint process directly
- Avoid discussing the details publicly, including on social media, while a criminal case or complaint may be ongoing
These steps will not resolve the situation on their own, but they generally put you in a better position to pursue whichever process is appropriate once you have had a chance to speak with a lawyer about your specific circumstances.
Frequently Asked Questions
Is a Charter application a separate lawsuit against the police?
No. A Charter application in a criminal case is generally brought within that same case, as a step aimed at a remedy such as the exclusion of evidence, not as a separate civil lawsuit. A separate civil claim is a different process entirely and raises its own considerations.
What is the OIPRD and when should I contact it?
The Office of the Independent Police Review Director, or OIPRD, is Ontario's independent civilian body for complaints about police conduct. It handles conduct complaints separately from any criminal case, and contacting it does not affect, and is not a substitute for, the criminal court process.
If I file an OIPRD complaint, will it help my criminal case?
Not directly. An OIPRD complaint addresses police conduct through a separate oversight process and does not itself produce a remedy such as excluding evidence in a criminal case. A Charter application handled through your lawyer within the criminal case is the relevant process for that.
Should I write down what happened right away?
Generally, yes. Writing down details such as times, locations, what was said, and who was present, while your memory is fresh, can be genuinely useful later, whether for a Charter application, a complaint, or both.
Do I need a lawyer to raise a Charter issue in my case?
It is strongly advisable. Charter applications involve specific legal and procedural requirements, and a lawyer reviewing the disclosure is generally in the best position to assess whether raising one is realistic and how to do so effectively.
Can I pursue both a Charter application and an OIPRD complaint?
In appropriate circumstances, yes, since they serve different purposes and proceed through different processes. Whether pursuing both makes sense for your situation is something to discuss with a lawyer.
Related Insights
This article is general legal information, not legal advice, and does not create a lawyer-client relationship. Criminal procedure can vary by case, courthouse, and circumstance. Confirm current requirements with a qualified lawyer or an official source before relying on anything here.