Charter of Rights

Mr. Martin has practiced criminal law for 35 years and acted as the Editor in Chief between 1990 and 2002 of the Charter of Rights Newsletter, Canada Law Book’s principle “Charter trend” national legal publication. Mr. Martin has been lead counsel in a number of constitutional challenges to a variety of Canadian federal statutes based upon various provisions of the Canadian Charter of Rights and Freedoms. Representative challenges that have been based upon various elements of just the fundamental justice guarantee contained within s. 7 of the Charter of Rights and Freedoms include:

To s. 37 of the Canada Evidence Act, a provision that permits the Crown to invoke Crown privilege in order to resist disclosure of evidence vital to full answer and defence, on the basis that the said provision deprives the accused of the benefit of trial court balancing of competing public interests: Unsuccessfully at trial in Canada (Attorney General) v. Sander, [1992] B.C.J. No. 1949 (opens pdf) but successfully on appeal in Canada (Attorney General) . v. Sander, [1994] B.C.J. No. 998 (B.C.C.A.) (opens pdf).

To s. 201 and 202 of Criminal Code, provisions which criminalize lotteries and gaming, on the basis that the provisions are unintelligible and thus void for vagueness: Successfully at trial in R. v. Stromberg [1997] B.C.J. No. 2435 (opens pdf); reversed on appeal in R. v. Stromberg [1999] B.C.C.A. 17 (B.C.C.A.) (opens pdf).

To s. 245 of the Income Tax Act, the so-called “general anti avoidance rule” which permits taxing authorities to invalidate tax motivated transactions which otherwise comply with the Income Tax Act, on the basis that the provision is vague and arbitrary: Unsuccessfully at trial in the Tax Court of Canada in Mathew v. Canada, 2002 D.T.C. 1637 (opens pdf) on the basis that Charter s. 7 did not reach to “purely economic” interests which were said, allegedly, not to be essential to liberty and security of the person.

To s. 32 of the Extradition Act, a provision that truncates the evidentiary admissibility standards necessary to the proof of a prima facie case in extradition proceedings: Successfully at trial in United Mexican States v. Ortega [2004] B.C.J. No. 402 (B.C.S.C.) (opens pdf), reversed in part in the Supreme Court of Canada in the quartet of decisions United States v. Ferras & Latty, [2006] S.C.C. 33 (opens pdf) and United Mexican States v. Ortega & U.S.A v. Fiessel, [2006] S.C.C. 34 (opens pdf) based upon an expansion of the supervisory role of the extradition judge and the tightening of the test for committal for extradition: See media coverage (opens pdf).

To s. 462.48 of the Criminal Code and s. 241(3) of the Income Tax Act, provisions that authorize tax authorities to transfer taxpayer information compelled for tax compliance purposes to criminal law enforcement personnel, on the basis of the Charter s. 7 right to be free from self incrimination: Not determined at trial due to the government’s withdrawal of information demands issued by tax authorities addressed to a “visible minority” on the eve of the trial of the challenge: See media coverage (opens pdf).

To s. 142(1)(b) of the B.C. Securities Act, a provision which purports to permit the U.S. Securities and Exchange Commission to utilize Canadian domestic statutory compulsion processes designed to regulate the securities industry to compel the targets of U.S. market manipulation investigations to self-criminate to U.S. authorities contrary to the Charter s. 7 right to silence guarantee: Pending – See Notice of Constitutional Question (opens pdf).

To s. 36(1)(c) of the Immigration Act, a provision which purports to authorize the deportation of a non Canadian citizen target to a country in which the target is charged with an offense without complying with the higher evidentiary standards and procedural safeguards of the Extradition Act contrary to the Charter s. 7  right to a fair extradition proceeding as a condition precedent to removal from Canada: Pending – See Notice of Constitutional Question (opens pdf).