Charter Rights in the Criminal Process

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 234-275

CHAP TER 14

CHARTER

R IGHT S IN

THE CRIMINAL PROCESS

The Charter of Rights and Freedoms has had a profound impact in the

area of criminal law. Charter claims are routinely asserted in criminal

proceedings. There have been thousa nds of cases decided by the courts

involving detailed considerat ion of investigative techniques, pre-tr ial

procedures, and the trial process itsel f. We offer here a sampling of

some of the most significant is sues that are rai sed by the Charter.

One way to examine the impact of the Charter is to use t he ab-

stract models of the cri minal process first put forward by the Amer ican

scholar Herbert Packer to assess t he influence of the American Bill of

Rights on the cr iminal justice system.1 The first is the “cri me control

model” in which the focus of the criminal justice system is to find and

punish the guilt y through efficient police and prosecutorial work, usu-

ally leading to a gui lty plea. The second is the “due process” model in

which the focus is on controlling t he exercise of police powers through

an elaborate series of procedural guarantees, violation of which results

in the release of the accus ed regardless of guilt or in nocence. The Ca-

nadian criminal just ice system, in common with the systems of other

liberal democracies, has always exhibited features of both models.

Crime control is bound to be a central feature of any system of

crimin al justice. The fundamental reason for the exi stence of the crimi-

1 H. Packer, The Limits of the Criminal Sanct ion (Stanford: Stanford Un iversity

Press, 1968). See also K. Ro ach, Due Process and Victims’ Rights: The New L aw

and Politics of Criminal Justic e (Toronto: University of Toronto Press, 1999).

234

Charter Rights in the Criminal Process 235

nal law is to protect society f rom those individual s whose behaviour

causes serious h arm. The severe sanction of deprivation of liberty and

imprisonment i s justified by t he criminal’s significant departure f rom

the norms of civil society and by the need to puni sh such conduct in

order to protect society from further transgressions.

Our system of crim inal justice has always recogni zed, however,

that crime control is achieved through the assertion of coercive state

power, which inevitably involves risk s of abuse and oppression. To

guard against t hese risks, the crimin al process has evolved a range of

procedural protections, designed to ensure that individuals suspected

of crime are dealt with fairly and humanely. These guarantees, prod-

ucts of both the common law tradition and statutes enacted by Parli a-

ment, include such basic rights as the pre sumption of innocence, the

right to silence, habeas corpus, and the right to be tried by a jur y of

one’s peers. These procedural norms, identified as elements of the “due

process” model, restrain t he exercise of coercive power in a significant

way. They are designed to protect the innocent and to avoid the risk

of wrongful conviction. But they al so benefit the guilty, since they en-

sure that everyone caug ht up in the crimin al proces s should be tre ated

fairly. A part of our trad ition is t he principle that it is better th at ten

gui lty per sons sho uld go fr ee tha n one inno cent person be conv icted. It

is not possible to have a scheme of rights th at protects only those who

are innocent of wrongdoing. Procedural rights often cause consterna-

tion when they assist t he guilty. Yet, that is a price to be paid in a free

society where rights are enjoyed by all individuals.

The criminal justice system is continually striv ing to strike an ap-

propriate balance between crime control and the protection of society

on the one hand, and fairne ss to accused persons and the prevention of

abuse of police powers on the other. The courts have always played an

important role in this exercise. However, by entrenching a number of

procedural rights in the constitution, the Charter of Rights and Freedoms

has increased the courts’ respon sibility to delineate the line between

crime control and due process. In addit ion, other values are relevant

such as the right of privacy and other rights of victims of crime, and

the equality right s of groups such as women, children, and minorities

who may be disproportionately subject to some crimes. While the fun-

damental purp ose of the Canadian criminal justice system rem ains the

protection of society, there can be little question that the result of the

courts’ efforts ha s been to move Canada closer towards the due-process

end of the spectrum. At the same time, many of the Char ter decisions

examined in t his chapter demonstr ate the reality of dialogue between

courts and legislatures under the Charter. Parliament has frequently

the

charter of r ights and fr eedoms

236

responded to the Supreme Court’s due-process decisions w ith new

legislation that while accommod ating due-process rights a lso advances

society’s interests in controlling crime.

A. SECTION 7 AND THE PRINCIPLES OF

FUNDAMENTA L JUSTICE

1) The Fault Element

As noted in chapter 13, a crucial quest ion that was faced in the early

years of the Charter was whether the very general language of section

7 permitted the court s to review the substance of laws or whether judi-

cial review wa s restricted to procedural matters. In Reference Re s. 94(2)

of the Motor Vehicle Act (B.C.),2 the Supreme Court held that “the prin-

ciples of fund amental justice” are not rest ricted to procedural value s

but have substantive content as well. The case involved a fund amental

issue in the cr iminal law, namely, the extent to which moral blamewor-

thiness should be a requi rement for conviction. Criminal offences t ypi-

cally require proof of two elements, har m and fault. Ordinarily, the fact

that harm h as resulted from someone’s conduct is not enough to sup-

port a conviction. To label someone a criminal, we must also be satis-

fied that the indiv idual charged is morally blameworthy. The behaviour

of the individual accu sed of a crime must be shown to have fallen short

of an expected stand ard by intending, or at least foreseeing, the forbid-

den harm. However, the fault requirement is often difficult to prove,

and the legislature m ay judge it to be in the public interest to impose

a sanction without proof of fault of the accused. Re Motor Vehicle Act

involved such a law. It imposed a mandatory penalty of imprisonment

for driving an automobile while one’s licence was under suspen sion.

There were a number of situations that could lead to a licence suspen-

sion without the knowledge of the licence-holder. An individual might

not have even been aware of a licence suspension, and so the re sult

was that a person who had no cr iminal intent could face a mandatory

jail sentence. In the Supreme Court of Canada’s view, such a situation

violated the principles of fundament al justice:

A law that ha s the potential to conv ict a person who has not rea lly

done anythi ng wrong offends t he principles of f undamenta l justice

and, if impri sonment is avail able as a penalty, such a law t hen vio-

2 [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536 [Re Motor Vehicle Act].