Conclusion

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 439-462

439

CHAPTER 12

CONCLUSION

The criminal law in Canada has undergone signif‌icant changes in the

past twenty-f‌ive years. The most visible change has been the enact-

ment 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 investiga-

tive 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 proceed-

ings even though the accused may have committed the crime w ith 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 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 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 in

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response to Charter concerns about ensuring that the morally innocent

are not convicted.

Although some of the effects of the Charteron 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 Charteras 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, non-mental disorder automatism,

and off‌icially induced error 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 object-

ive fault standards for many criminal offences. Moreover, there is no

constitutional requirement that the reasonable person used to admin-

ister objective fault standards have the same characteristics as the par-

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

That said, the Court has recently interpreted section 7 of the Charter to

require that there be a marked departure whenever negligence is used

as a form of criminal liability and that courts at least consider whether

the subjective position of the accused raises a reasonable doubt about

the accused’s negligence.1

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 specif‌ic

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 sex-

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

1 R. v. Beatty, 2008 SCC 5 [Beatty].