Charter Defences: When Police Evidence Can Be Excluded (s. 8 / s. 10(b))

Section 8 guarantees everyone “the right to be secure against unreasonable search or seizure.” Since Hunter v. Southam Inc. (1984), a search without a warrant is presumed unreasonable, and the Crown must justify it — usually by pointing to a recognized power such as search incident to arrest, consent, or urgent circumstances.

Where the search happened matters. A home attracts the highest expectation of privacy, and police generally need a warrant to enter it. A car carries less, but a roadside stop does not authorize a search of the trunk or a console on a hunch. Phones are treated as uniquely private: in R. v. Fearon (2014 SCC 77), the Supreme Court allowed only a narrow, tailored search of a phone incident to arrest, with detailed notes required. In R. v. Marakah (2017 SCC 59), it held that a sender can have a reasonable expectation of privacy in text messages found on someone else’s phone.

When police did get a warrant, the defence can still attack it. On a Garofoli application — named for R. v. Garofoli (1990) — the judge reviews the information to obtain (ITO), removes misleading or inaccurate statements, and asks whether the warrant could still have issued. In a 2024 possession-for-the-purpose case, the warrant was set aside under Garofoli for material misstatements in the ITO; the evidence was excluded and the charges were withdrawn. See more in our case results.

• Warrantless search of a home, car, bag or person
• Phone or computer searched without a warrant, or beyond what a warrant allowed
• Warrant obtained on an ITO with errors, omissions or stale information

Section 10(a) requires police to tell you promptly why you are being detained or arrested. Section 10(b) gives you the right to retain and instruct counsel without delay and to be told of that right. In R. v. Suberu (2009 SCC 33), the Supreme Court held that “without delay” means immediately, subject only to officer or public safety and limits prescribed by law.

The right to counsel has two parts. The informational duty requires police to tell you about the right, and — as R. v. Bartle (1994) confirmed — about free duty counsel and legal aid. The implementational duties require police to give you a reasonable opportunity to reach a lawyer and to stop questioning you until you have. Under R. v. Prosper (1994), police must hold off while you are diligently trying to reach counsel.

There are limits. R. v. Sinclair (2010 SCC 35) held that s. 10(b) does not entitle you to have a lawyer present throughout an interrogation, though you may be entitled to speak with counsel again if circumstances change. For a practical guide to what to say on arrest, read your rights when arrested in Ontario.

• Not told the reason for the arrest
• Not told about free duty counsel
• Request for a specific lawyer ignored or rushed
• Questioned before speaking to counsel
• Phone call made without privacy

Breath-testing cases depend on strict procedure, which is why they generate so many Charter applications. Under s. 320.27 of the Criminal Code, an officer who reasonably suspects alcohol in a driver’s body can demand a roadside sample, and since December 2018 an officer with an approved screening device may demand a sample from any lawfully stopped driver, without suspicion. Either way, the sample must be provided “immediately” — the older law said “forthwith.” The roadside suspension of the right to counsel is justified only by that immediacy, so unexplained delay can open the door to a s. 10(b) argument.

At the station, the issues shift to whether the arrest was lawful, whether the driver was told about duty counsel, whether a call to a lawyer of choice was genuinely facilitated, and whether the call was private. In a 2025 Over 80 case, breath readings were excluded under s. 24(2) after a successful s. 8 and s. 10(b) Charter application at trial; the Crown could not proceed and the charges were dismissed.

Learn more about our impaired driving defence work, or read about refusing a breathalyzer in Ontario.

Under the Criminal Rules of the Ontario Court of Justice, a Charter application is started by serving and filing a Form 1 application with a statement of the grounds and a detailed factual basis. It must generally be served and filed at least 30 days before the hearing; the Crown’s Form 2 response is due at least 15 days before. Applications to exclude evidence are usually heard at trial, often in a blended voir dire where the same evidence serves the Charter ruling and the trial. Delay applications under s. 11(b) are heard well before trial.

The accused generally bears the burden of proving the breach, and that exclusion is warranted, on a balance of probabilities. But onus can shift: for a warrantless search, the Crown must show it was reasonable. Success depends on detailed disclosure — officers’ notes, in-car and booking video, breath-room recordings, the ITO — and on cross-examining officers. Here is how the wider criminal court process in Ontario unfolds.