Conclusion

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

439

CHA PTER 12

CONCLUSION

The crimin al law in Canada has undergone signif‌icant changes in the

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

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

chapter 2, the Charter cause s crimin al courts to be concerned not only

with t he accused’s factual guilt, but also with whether the police and

prosecutors complied with the accused’s legal rights in the investiga-

tive and tri al process. Non-compliance w ith Charte r rights c an lead to

the exclusion of relevant ev idence. Entrapment t hat would br ing the

administration of justice into disrepute can re sult in a stay of proceed-

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

required mens rea.

The Charte r guarantee s the presumption of i nnocence. It has been

interpreted to be breached whenever t he accused bears the burden of

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

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

tial burden to overcome a ma ndatory presumption. It is not bre ached,

however, when a judge makes a prelimin ary decision about whether

there is an air of rea lity to justify putting a defence to a jury. In addi-

tion, the Charter has provided new substantive standards of fairness by

which to measure crimin al and regulatory offences and the availabil ity

of defences. Constructive murder has been struck down as inconsistent

with the minimum me ns rea for murder and absolute liability offences

have been found to be unconstitutiona l when they result in imprison-

ment. The intoxication and duress defences have also been expanded in

CRIMIN AL LAW440

response to Charter concerns about ensuring that the morally innocent

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 crimin al law, which ha s

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

tion of innocence ha s been violated have nevertheles s been sustained

under section 1 of the Ch arter as rea sonable 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 presumpt ion of negligence by

establishing a defence of due diligence. The Court has even violated the

presumption of innocence itself by requir ing t he 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 ha s approved the use of object-

ive fault standards for many crimin al offences. Moreover, t here is no

constitutional requirement that the reas onable person used to ad min-

ister objective fault standard s have the same cha racteristics as the par-

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

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

require that there be a marked depar ture whenever negligence is used

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

the subjective position of t he accused raises a rea sonable doubt about

the accused’s negligence.1

Even when the Supreme Court h as r uled in favour of the Charter

rights of the accused, Parlia ment has frequently responded wit h new

legislation that reaff‌irm s the public interest and the interests of victims

and potential victims of cr ime. The most dramatic example i s 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 m anner would still be convicted of

crimes such as assault and sex ual 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 a nd has rest ricted the Pa pp ajo hn mistake of fact defence to

require the accused to take reasonable steps, given the circumstances

known to him, to ascer tain whether a complainant consents to sex-

ual act ivity. In its preambles to the se new provisions, Parliament has

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