Conclusion: Trends in Criminal Law

AuthorKent Roach
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. 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 tri al
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 t he 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 t he required men s rea.
The Charter guarantees the presumption of innocence. It has been
interpreted to be breached whenever the accused be ars 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 sati sfy 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 just ify 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 w ith
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 impr isonment. This has
led to increased relia nce on high f‌ines or administr ative 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 ba sis that the principles of fund amental jus-
tice in section 7 of the Charter are breached by laws that are overbroad
by infring ing rights furt her than required to achieve their objective or
laws that are gros sly 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 rea sonable limits provisions in
section 1 of the Charter w ith Parliament’s f‌inal option (not yet exercised)
of enacting crim inal laws notwith standing Charter r ights.
Although some of the eects of the Charter on the cr iminal 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 lim its on Charter rights. The Supreme
Court has approved the pre-Charter compromise of strict li ability 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 liabilit y oences will
not violate section 7 of the Charter if t hey 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 sometime s-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 v iolated the presumption
of innocence itself by requir ing 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 restrict ions in 2015.

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