Conclusion

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology University of Toronto
• Pages: 364-386

364

The criminal law in Canada has undergone significant changes in the

past twenty years. The most visible change has been the enactment of

the Canadian Charter of Rights and Freedoms. As examined in chapter

1, the Charter means that criminal courts are concerned not only with

the accused’s factual guilt, but also with whether the police and prose-

cutors complied with the accused’s legal rights in the investigative and

trial process. Non-compliance with Charter rights can lead to the exclu-

sion of relevant evidence. Entrapment that would bring the administra-

tion 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 addi-

tion, 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 imprison-

ment. The intoxication and duress defences have also been expanded

Conclusion

chapter 10

in response to Charter concerns about ensuring that the morally inno-

cent are not convicted.

Although some of the effects of the Charter on the criminal law

have been breathtaking and unexpected, the overall effect can be over-

stated, particularly in relation to substantive criminal law, which has

been the focus of this work. Most cases in which the broad presump-

tion 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 Court has even violated the

presumption of innocence itself by requiring the accused to establish

the defences of extreme intoxication and non-mental disorder automa-

tism on a balance of probabilities. It has only required subjective fault

in relation to the prohibited result for murder, attempted murder, and

war crimes and has approved the use of objective fault standards for

many criminal offences. Moreover, there is no constitutional require-

ment that the reasonable person used to administer objective fault

standards have the same characteristics as the particular offender or

that fault be proven for all aspects of the actus reus.

Even when the Supreme Court has ruled in favour of the Charter

rights of the accused, Parliament has frequently responded with new

legislation that reaffirms the public interest and the interests of victims

and potential victims of crime. The most dramatic example is section

33.1 of the Criminal Code which attempts to overrule the Court’s deci-

sion in Daviault, so that an extremely intoxicated accused who acted in

an involuntary or unconscious manner would still be convicted of

crimes such as assault and sexual assault. In an attempt to ensure that

“no means no,” Parliament has in sections 273.1 and 273.2 of the Code

defined consent for the purpose of sexual assault not to include specif-

ic conduct and has restricted the Pappajohn mistake of fact defence to

require the accused to take reasonable steps, given the circumstances

known to him, to ascertain whether a complainant consents to sexual

activity. In its preambles to these new provisions, Parliament has assert-

ed that the Charter rights of women and children as potential victims of

sexual and domestic assault should be balanced with the Charter rights

of the accused. Charter decisions striking down warrantless searches

have led Parliament to create new warrant provisions and to authorize

some warrantless searches. Parliament revived tertiary grounds for the

denial of bail after they were struck down by the Supreme Court. The

Charter has not prevented Parliament from responding to court deci-

Conclusion 365