Conclusion: Trends in Criminal Law

• Author: Kent Roach
• Pages: 573-603

573

CHAPTER 12

CONCLUSION: TRENDS

IN CRIMINAL LAW

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. The Charter contains many r ights, such as the right

against unreas onable search and seizure, which aect the investigation

of crimes, and disclosure and speedy trial rights, which aect the trial

process. As exam ined in Chapter 2, the Charter causes cr iminal 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 invest igative and trial process. Non-compliance with Cha r-

ter 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 accused may have committed

the crime with the required men s 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 oence, 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 dec ision about whether there is

an air of reality to justify putting a defence to a jury.

The Charter has als o provided new substantive standards of fair ness

by which to measure criminal and regulatory oences and the avail-

ability of defences. Constructive murder based on causing death while

committing a serious cr ime has been struck down as inconsistent with

CRIMIN AL LAW574

the minimum me ns rea for murder. Absolute liability oences that al low

convictions without even the fault of negligence have been found to be

unconstitutional, but only when they result in imprisonment. This has

led to increased reliance on high f‌ines or administrative monetary pen-

alties. The intoxication and duress defences have also been expanded

in response to Charter concerns. The Charter has inf‌luenced both the

procedure and the substance of the criminal process.

The Supreme Court has struck down oences relating to sex work

and assisted suicide on the basis that the principles of fundamental jus-

tice in section 7 of the Charter are breached by laws that are overbroad

by infringing rights further than required to achieve their objective or

laws that are grossly disproportionate in terms of their eects on rights

as compared to their socia l benef‌its. In both cases, Parliament res ponded

with controversial new laws prohibiting t he purchase of sex and limiting

the right to assist ance in dying. The dialogue between courts and Parlia-

ment 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 w ith Parliament’s f‌inal option (not yet exercised)

of enacting criminal laws notwithstanding Charter r ights.

Although some of the eects of the Charter on the criminal law

have been dramatic and une xpected, the overall eect can be overstated,

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 b een 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 oences, 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 oences will

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

ment. Governments have continued to employ no-fault absolute liability

oences while increasing f‌ines.

With the exception of the limited defence of ocially induced er ror,

the Court has accepted the sometimes-harsh consequences of the trad-

itional 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 o-

cially induced error on a balance of probabilities. The Court itself had

restricted the provocation defence that, if succe ssful, reduces murder to

manslaughter before Parliament enacted arbitrary restrictions in 2015.