Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

Page 496

The criminal law in Canada has undergone significant changes in the past three decades. The most visible change has been the enactment of the Canadian Charter of Rights and Freedoms. As examined in chapter 2, the Charter causes criminal courts to be concerned not only with the accused’s factual guilt, but also with whether the police and prosecutors complied with the accused’s legal rights in the investigative and trial process. Non-compliance with Charter rights can lead to the exclusion of relevant evidence. Entrapment that would bring the administration of justice into disrepute can result in a stay of proceedings even though the accused may have committed the crime with the required mens rea.

The Charter guarantees the presumption of innocence. It has been interpreted to be breached whenever the accused bears the burden of establishing an element of an offence, a defence, or a collateral factor. It can even be breached when the accused must satisfy an evidential burden to overcome a mandatory presumption. It is not breached, however, when a judge makes a preliminary decision about whether there is an air of reality to justify putting a defence to a jury. In addition, the Charter has provided new substantive standards of fairness by which to measure criminal and regulatory offences and the availability of defences. Constructive murder has been struck down as inconsistent with the minimum mens rea for murder and absolute liability offences have been found to be unconstitutional when they result in imprisonment. The intoxication and duress defences have also been expanded in response to Charter concerns.

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Although some of the effects of the Charter on the criminal law have been unexpected, the overall effect can be overstated, particularly in relation to substantive criminal law, which has been the focus of this work. Most cases in which the broad presumption of innocence has been violated have nevertheless been sustained under section 1 of the Charter as reasonable and proportionate limits on Charter rights. The Supreme Court has approved the pre-Charter compromise of strict liability for regulatory offences, including the requirement that the accused rebut a presumption of negligence by establishing a defence of due diligence. The courts have also found that no-fault absolute liability offences will not violate section 7 of the Charter if they do not result in imprisonment. The Court has even violated the presumption...

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