Conclusion

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology.University of Toronto
• Pages: 501-521

501

CHAPTER 12

CONCLUSION

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 als o 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 st ay of proceedings even though

the accused may have committed the crime with the requi red 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 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 reality 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 criminal and regulatory offences and the availability

of defences. Constructive murder has been st ruck 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. More recently, the Supreme Court has struck down offences relat-

ing to prostitution and assisted suicide on the basis that the principles

CRIMIN AL LAW502

of fundamental justice in section 7 of the Charter are breached by laws

that are overbroad by infri nging rights further th an required to achieve

their objective or laws that are grossly disproportionate. The intoxi-

cation and duress defences have also been expanded in response to

Charter concer ns.

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

have been unexpected, the overall effect can be overstated, part icularly

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 ac-

cused rebut a presumption of negligence by establishing a defence of

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

ity offences will not violate sect ion 7 of the Charter if they do not result

in imprisonment. With the exception of the limited defence of off‌i-

cially induced error, the Court has accepted the sometimes harsh con-

sequences of the traditiona l principle that even reasonable ignorance or

a mistake of the law is not an excuse. The Court has even violated the

presumption of innocence itself by requiring the accused to establish

the defences of extreme intoxication, non-mental disorder automatism,

and off‌icially induced error on a balance of probabilities.

The Charter has 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 actus reus. Under section 7 of the

Charter, the courts have required subjective fault only 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 symmetry between the actus reus

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

fundamental justice under section 7 of the Charter. Fortunately, there

are some signs that the courts are increasingly recognizing that com-

mon law presumptions of subjective fault and against absolute liability

can still do important work in the Charter era.

Parliament could always rebut common law presumptions of sub-

jective fault and the Court has accepted objective fault standards for

many criminal offences under the Charter. Moreover, there is no con-

stitutional requirement that the reasonable person used to administer

objective fault standards has the same characteristics as the particular

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