It will be evident from this survey that Canadian criminal law has been significantly affected by the Charter of Rights and Freedoms and that judges have assumed an important law-making role. Not surprisingly, Charter decisions have provoked debate concerning both the substantive content of fundamental rights and freedoms and the appropriateness of judicial review as a way of protecting rights.
There are two core principles to be considered here.
First is the issue of the legitimacy of judicial review, a matter considered more broadly in Chapter 2. Judicial review qualifies majority rule, and it is evident from the cases considered in this chapter that Canadian judges have not hesitated to exercise the power to strike down laws that they consider violate Charter guarantees. One point to be noted, however, particularly in the realm of the criminal law, is that more often than not, what is at issue is not the solemn pronouncement of Parliament but rather the action of a police officer or prosecutor. The number of cases challenging the constitutionality of police conduct or that of other unelected state officials far exceeds the number of cases challenging the constitutionality of laws enacted by the representatives of the people. Judicial review of the propriety of the conduct of law-enforcement officials is considerably less controversial and very much more in keeping with the common law tradition. Control of the exercise of power by state officials through judicial review is a cornerstone of the rule of law, and subjecting the actions of police and other state officials to judicial scrutiny is one of the hallmarks of a civilized society. The Charter bolsters judicial powers in this area and, in so doing, does not conflict with democratic principles. In addition, it is also significant that many of the Charter challenges to both legislation and police conduct examined in this chapter have been the subject of a legislative reply by Parliament in the exercise of its jurisdiction over criminal law and procedure. The constitutionality of this reply legislation has not been considered in all cases, but the Supreme Court has
generally determined that the reply legislation was a reasonable balance of the competing interests.
The second tension concerns the competing conceptions of the appropriate focus of the criminal law, identified at the beginning of this chapter, crime control and due process. Crime control is a matter of...