Conclusion

• Author: Kent Roach
• Pages: 546-571

546

CHA PTER 12

CONCLUSION

The criminal law in Canada has undergone signi f‌icant changes. The

most visible change has been the enactment of the Canadian Charter

of Rights and Freedoms. As examined in Chapter 2, t he Charter cau ses

crimina l 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 investigative and trial proces s. Non-

compliance with Charter rights can lead to the exclusion of relevant

evidence. Entrapment that would bring the adm inistration of justice

into disrepute can result in a st ay of proceedings even though the ac-

cused may have committed t he crime with the required mens 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 factor.

It can even be breached when the accused must sati sfy an evidential

burden to overcome a mandatory presumption. It is not breached, how-

ever, when a judge makes a preliminary deci sion about whether there is

an air of reality to just ify putting a defence to a jury. The Charter con-

tains many procedural rights such as the right against unreasonable

search and seizure that affect the investigation of crime and disclosure

and speedy trial rights that affect the t rial process.

In addition, the Charter has provided new substantive standards

of fairness by which to measure criminal and regulatory offences and

the availability of defences. Const ructive murder has been struck

down as inconsistent wit h the minimum me ns rea for murder and

Conclusion 547

absolute liability offences have been found to be unconstitutional when

they result in imprisonment. The intoxication and duress defences have

also been expa nded in response to Charter concerns. The Charter has

inf‌luenced both the procedure and the subst ance of the criminal process.

More recently, the Supreme Court has struck down offences relating

to prostitution and assisted suicide on the ba sis that the principle s of

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

that are overbroad by infr inging rights further th an required to achieve

their objective or laws that are gros sly disproportionate. In both case s,

Parliament responded with controversi al new laws prohibiting the pur-

chase of sex and lim iting the right to assistance in dying. The dia-

logue between courts and Parlia ment that started under the common

law continues under the Charter, albeit subject to the requirements of

the reasonable limit s provisions in section 1 of the Charter with Parl ia-

ment’s f‌inal option (not yet exercised) of enacting criminal laws not-

withstanding Charter right s.

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

have been dramatic and unexpected, the overall effect can b e over-

stated, particularly in relation to substantive crim inal law, which has

been the focus of this work.

Most cases in which the broad presumption of innocence has been

violated have nevertheless bee n sustained under section 1 of the Charter

as reasonable and proportionate lim its on Charter rights. The Supreme

Court has approved the pre-Charter compromise of strict liability for

regulatory offences, including t he requirement that the accused rebut

a presumption of negligence by establishing a defence of due diligence.

The courts have also found that no-fault absolute liabilit y offences will

not violate section 7 of the Charter if t hey do not result in imprison-

ment. With the exception of the limited defence of off‌icially induced

error, the Court has accepted the sometimes h arsh consequences of the

traditional principle that even reasonable ignorance or a mistake of the

law is not an excuse. The Court has even v iolated the presumption of

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

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

duced error on a balance of probabilities. The Court itself h as restricted

the provocation defence that if successful reduces murder to manslaugh-

ter and, in 2015, Parliament also restricted this defence in a manner that

is likely to attract Charter challenge, as have the restrictions that Parlia-

ment placed on the defence of extreme intoxication in 1995.

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