Conclusion

• Author: Kent Roach
• Pages: 496-515

496

CHA PTER 12

CONCLUSION

The criminal law in Canada has undergone signif‌icant changes in the

past three decades. The most vi sible change has been the enactment of

the Canadian Charter of Rights and Freedoms. As exa mined in chapter 2,

the Char ter causes criminal courts to be concerned not only with the

accused’s factual guilt, but also w ith whether the police and prosecutors

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

process. Non-compliance with Char ter rights can lead to t he exclusion

of relevant evidence. Entrapment that would bring the admi nistration

of justice into disrepute can result in a st ay of proceedings even though

the accused may have committed t he crime with the required me ns rea.

The Charter g uarantees the presumpt ion of innocence. It has been

interpreted to be breached whenever the accused be ars the burden of

establishing an element of an offence, a defence, or a collateral fac-

tor. It can even be breached when the accused must satisfy an eviden-

tial 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 real ity to justify putting a defence to a jury. In addi-

tion, the Charter ha s provided new substantive standards of fair ness by

which to measure crim inal and regulatory offences a nd the availability

of defences. Constructive murder has been st ruck down as inconsistent

with the mini mum 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 e xpanded

in response to Charter concerns.

Conclusion 497

Although some of the effects of the Charter on t he 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 nevert heless been sustained under section 1 of

the Charter as reasonable and proportionate limits on Charter r ights.

The Supreme Court ha s approved the pre-Char ter compromise of strict

liability for regulatory offences, including the requirement that the ac-

cused rebut a presumption of negligence by establishing a defence of

due diligence. The courts have also found that no-fault absolute lia-

bility offences will not v iolate section 7 of the Charter if they do not

result in imprisonment. The Court h as even violated the presumption

of innocence itself by requir ing the accused to establish the defences of

extreme intoxication, non-mental disorder automatism, a nd off‌icially

induced error on a balance of probabilities.

The Charter h as in some respects protected fault principles less ro-

bustly than the common law. Before the Charter, the courts under the

common law applied common law presumptions of subjective fault in

relation to all the elements of the actu s reus. Under section 7 of the

Charter, the courts have only required subjective fault in relation to the

prohibited result for murder, attempted murder, and war crimes. It has

decided that the principle that fault be proven in relation to all aspects

of the prohibited act or that there be symmetr y between the actus reu s

and men s rea is a matter of crimina l law “theory” but not a principle of

fundamental justice under section 7 of the Charter. The Court has ap-

proved the use of objective fault standards for many cr iminal offences.

Moreover, there is no constitutional requirement that the rea sonable

person used to admin ister objective fault standards have the same

characterist ics as the particular offender or that fault be proven for all

aspects of the actu s reus. That said, the Court has recently i nterpreted

section 7 of the Charter to requi re that there be a marked depart ure

whenever negligence is used as a form of criminal liability and th at

courts at least consider whether the subjective position of the accused

raises a rea sonable doubt about the accused’s negligence.1

Even when the Supreme Court has ruled in favour of the Charte r

rights of the accused, Parli ament has frequently responded with new

legislation that reaf f‌irms the public interest and the interests of vict ims

and potential victims of crime. The most dramatic exa mple is section

33.1 of the Criminal Code, which attempts to overr ule the Court’s deci-

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

1 R. v. Beatty, 2008 SCC 5 [Beatty], R. v. Roy, 2012 SCC 26.