Conclusion

• Author: Kent Roach
• Pages: 546-571

546

CHAPTER 12

CONCLUSION

The criminal law in Canada has undergone signif‌icant changes. 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 also 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 stay of proceedings even though the ac-

cused may have committed the crime with 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 factor.

It can even be breached when the accused must satisfy 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 justify 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 trial 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. Constructive murder has been struck

down as inconsistent with the minimum mens 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 expanded 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 basis that the principles 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 grossly disproportionate. In both cases,

Parliament responded with controversial new laws prohibiting the pur-

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

logue between courts and Parliament that started under the common

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

the reasonable limits provisions in section 1 of the Charter with Parlia-

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

withstanding Charter rights.

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

have been dramatic 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 presumption of innocence has been

violated have nevertheless bee n 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 accused rebut

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

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

not violate section 7 of the Charter if they 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 violated the presumption of

innocence itself by requiring the accused to establish the defences of

extreme intoxication, non-mental disorder automatism, and off‌icially in-

duced error on a balance of probabilities. The Court itself has 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 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