Charter Rights in the Criminal Process
| Author | Robert J. Sharpe, Kent Roach |
| Pages | 259-306 |
259
Chapter 14
CHA RTER
RIGHTS IN
THE CRIMINAL PROCESS
The Charter of Rights an d Freedoms has had a profound impact in the
area of criminal law. Charter clai ms are routinely asserted in crim inal
proceedings. There have been thousands of cases decided by the courts
involving detailed consideration of investigative technique s, pre-trial
procedures, and the trial proce ss itself. We offer here a sampling of
some of the most significant issues that are raised by the Charter.
One way to examine the impact of the Charter is to use the abstract
models of the criminal process first put forward by the American schol-
ar Herbert Packer to assess the influence of the American Bill of Rights
on the cr iminal just ice system.1 The first is the “crime control model”
in which the focus of t he crimin al justice system is to find and pun ish
the guilty through efficient police and prosecutorial work, usually lead-
ing to a guilty plea. The second is the “due process” model in which the
focus is on controlling the exerci se of police powers through an elab-
orate series of procedural guarantees, violation of wh ich results i n the
release of the accused regardles s of guilt or innocence. The Canadia n
crimina l justice system, in common with the s ystems of other liberal
democracies, has always exhibited features of both models.
Crime control is bound to be a central feature of any system of
crimina l justice. The fundamental reason for the existence of the crim-
1 H. Packer, The Limits of the Criminal Sanct ion (Stanford: Stanford Universit y
Press, 1968). See also K. Ro ach, Due Process and Victims’ Rights: The New Law
and Politics of Criminal Justice (Toronto: University of Toronto Pres s, 1999).
THE CHARTER OF R IGHTS A ND FREEDOMS260
inal l aw is to protect society from those individuals whose behaviour
causes ser ious harm. The severe sanction of deprivation of libert y and
imprisonment i s justi fied by the cr iminal’s sig nificant departure from
the norms of civil society and by the need to punish such conduct in
order to protect society from further transgressions.
Our system of crimina l justice has always recognized, however,
that crime control is achieved through the assertion of coercive state
power, which inevitably involves risks of abuse and oppression. To
guard agai nst these risks, the crimin al process has evolved a range of
procedural protections, designed to ensure that indiv iduals suspected
of cri me are dealt with fairly and huma nely. These g uarantees, prod-
ucts of both the common law tradition and statutes enacted by Parlia-
ment, include such ba sic right s as the presumption of innocence, the
right to silence, habeas corpus, and the right to be tried by a jury of
one’s peers. These procedural norms, identified as elements of the “due
process” model, restrain t he exercise of coercive power in a sign ificant
way. They are designed to protect the innocent and to avoid the risk
of wrongful conv iction. But they al so benefit the guilty, since they en-
sure that everyone caught up in the criminal process should be treated
fairly. A part of our tradition is the pr inciple that it is better t hat ten
guilty persons should go free than one innocent person be convicted. It
is not possible to have a scheme of rights t hat protects only those who
are innocent of wrongdoing. Procedural rights often cause consterna-
tion when they assist the g uilty. Yet, that is a pr ice to be paid in a free
society where rights are enjoyed by all ind ividuals.
The crimina l justice system is continually st riving to strike an ap-
propriate balance between crime control and the protection of society
on the one hand, and fairness to accused persons and the prevention of
abuse of police powers on the other. The courts have always played an
important role in th is exerci se. However, by entrenching a number of
procedural rights in the constitution, the Charter of Rights and Freedoms
has increased the courts’ responsibility to delineate the line between
crime control and due proce ss. In add ition, other values are relevant
such as the right of privacy and other rights of v ictims of crime, and
the equality rights of groups such a s women, children, and minoritie s
who may be disproportionately subject to some crimes. While the fun-
damental purpose of the Canadia n criminal justice system remains the
protection of society, there can be little question that the result of the
courts’ efforts has been to move Canada closer towards the due-process
end of the spectrum. At the same time, ma ny of the Charter decision s
examined in thi s chapter demonstrate the reality of dialogue between
courts and legislatures under the Charter. Parliament has frequently
Charter Right s in the Criminal Pr ocess 261
responded to the Supreme Court’s due-process decisions with new
legislation that while accommodating due-process rights also advances
society’s interests in controlli ng crime.
a. SeCtION 7 aND the prINCIpLeS OF
FUNDaMeNtaL JUStICe
1) The Fault Element
As noted in chapter 13, a crucial question that was faced in the early
years of the Charter was whether the very general language of section 7
permitted the courts to review the substance of laws or whether judicial
review was restricted to procedural matters. In Reference Re s. 94(2) of
the Motor Vehicle Act (B.C.),2 the Supreme Court held that “the principles
of fundamental justice” are not restricted to procedural values but have
substantive content as well. The case involved a fund amental i ssue in
the criminal l aw, namely, the extent to which moral blameworthiness
should be a requirement for conviction. Criminal offences ty pically re-
quire proof of two elements, har m and fault. Ordinarily, the fact that
harm has resulted from someone’s conduct is not enough to support a
conviction. To label someone a criminal, we must also be s atisfied that
the individual charged i s morally blameworthy. The behaviour of the
individual accused of a cr ime must be shown to have fallen short of an
expected standard by intending, or at least foreseei ng, the forbidden
harm. However, the fault requirement is often difficult to prove, and the
legislature may 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 driv ing
an automobile while one’s licence was under suspension. There were
a number of situations that could lead to a licence suspension w ithout
the knowledge of the licence-holder. An individual might not have even
been aware of a licence suspension, and so the result was th at a person
who had no crim inal intent could face a mandator y jail sentence. In
the Supreme Court of Canada’s view, such a situation violated the prin-
ciples of fundamental justice:
A law that has the potential to convict a person who has not rea lly
done anyt hing wrong offend s the pri nciple s of fundamental ju stice
and, if imprisonment i s avail able as a p enalty, such a l aw then vio-
lates a p erson’s right to l iberty under s. 7 of the Canadia n Charter of
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