Canadian Charter of Rights and Freedoms

AuthorRichard D. Schneider; Caitlin Pakosh; Lora Patton
Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms, Part  of the Constitution Act, 1982, being Schedule B
to theCanada Act 1982(U.K.), , c. 
Whereas Canada is founded upon principles that recognize the supremacy of God and the
rule of law:
Legal R ights
Life, liberty and secur ity of person
Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
Proving a Section  Violation in General
Carter v. Canada (Attorney General),  SCC  — To establish that section  of the Charter has
been breached, the claimant must rst show that the state conduct interfered with or deprived
them of life, liberty, or security of the person. Then, the claimant must show that the deprivation
was not in accordance with the principles of fundamental justice. If the section violation is
proven, the state is then required to prove under section  of the Charter that the deprivation can
be demonstrably justied in a free and democratic society.
The Enactment of Part XX. of the Criminal Code
R. v. Swain, []  SCR  The former section () of the Criminal Code infringed section 
of the Charter because it did not provide for periodic reviews, hearings, or other procedural safe-
guards for the “insane” kept in custody. This section could not be saved by section .
Commentary: In response to this case, Parliament enacted Part XX. of the Criminal Code in
. In these new provisions, the “not criminally responsible” (NCR) phrasing was introduced
and an NCR nding would place the accused in a stream that emphasized treatment and stabil-
ization, rather than incarceration and punishment. Continuing to detain NCR persons was made
conditional on showing that they posed a “signicant threat to the safety of the public” (s. .).
* Note: This chapter is annotated with key cases and should not be taken to be an exhaustive survey of all
cases engaging Charter issues regarding mental health matters. This chapter focuses on criminal cases.
Proclaimed in force on April , , amended by the Constitution Amendment Proclamation, , SI/-,
and eective June , .
Carter v. Canada (Attorney General),  SCC  at paras. – and . Note that the facts of this case relate
to the issue of aiding or abetting a person to commit suicide being a criminal oence and is not specic to
the issue of mental health and/or mental disorder and the criminal law.
Canadian Charter of Rights and Freedomss 
“Unt to Stand Trial” Section 
R. v. Eisnor,  NSSC  The court followed the reasoning in R. v. Morrissey that amnesia
alone does not permit a nding of untness. The denition of “unt to stand trial” in section 
of the Criminal Code is not so rigid that it cannot be applied to a case where the accused has no
memory of the alleged oence as a result of an acquired brain injury obtained by a self-inicted
gunshot wound.
Context: The accused was charged with the rst-degree murder of his wife. It was alleged that
the accused shot his wife in the head twice, then shot himself in the head once, and survived with
a brain injury that left him with no memory of that day or the previous six months. The accused
had been found t to stand trial by the Review Board and the court. At the conclusion of a prelim-
inary inquiry, the accused was ordered to stand trial.
The accused applied to the court to render a preliminary determination on whether to put the
issue of the accused’s tness to stand trial to the jury, pursuant to section . of the Criminal
Code. Part of the application advanced a Charter challenge under section  wherein the accused
claimed that the nature of his amnesia created a situation where the existing test for tness under
section  of the Criminal Code violated section  of the Charter. The applicant’s position was that
since he had no means of recalling the events just prior to the shooting, he was deprived of
mounting possible defences to the charge of rst-degree murder, such as a possible provocation
defence. The applicant asserted that he could not answer the charge against him.
The court found that a Charter challenge was not required and the issue was one of statutory
interpretation, and that if the issue of tness to stand trial made its way to the jury, the court
would need to address the meaning of “unt to stand trial” in a manner consistent with proper
statutory interpretation and existing caselaw. “Unt to stand trial” did not require redening and
did not rise to the level of a Charter challenge. The denition provided by Parliament in the legis-
lation “works” and “is not so overly rigid that it cannot be applied to the case” and “[i]t does not
prevent the accused from making full answer and defence.”
Fitness Issues Arising After Verdict — Sections  and .()
R. v. Jaser,  ONSC  This case involved two co-accused, Jaser and Esseghaier. After a
jury trial, convictions were entered for both accused for oences of conspiracy to derail a passen-
ger train for the benet of a terrorist group and conspiracy to commit murder for the benet of
a terrorist group. During the sentencing hearing, the issue arose as to whether the court should
inquire into Esseghaier’s tness by ordering a psychiatric assessment. Esseghaier consented to
a psychiatric assessment under section  of the Ontario Mental Health Act as there was no pro-
vision in the Criminal Code providing for a psychiatric assessment pending sentence. The court
found that section  of the Charter requires that a trial judge possess the power to inquire into
the “limited cognitive capacity” or “operating mind” of the accused at a sentencing hearing, but
that extending sections  and .() by a “reading in” remedy — as was done in R. v. G.B. (see
below) was not appropriate as it would give rise to signicant criminal law policy questions
and would require amendments to sections . and . of the Criminal Code to expand the
jurisdiction of the Review Board. The court made a further section  assessment order to address
the issue of Esseghaier’s tness at a sentencing hearing.
 ONCA , leave to appeal refused, [] S.C.C.A . No.  (SCC).
R. v. Eisnor,  NSSC  at para. .

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