B. Criminal Law And The Charter Of Rights

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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In 1982 the Canadian Charter of Rights and Freedoms was added to the Canadian Constitution. The Charter’s greatest impact has been on the criminal justice system, and it provides constitutional standards that affect the criminal process from the investigation of crime to the punishment of offenders. A violation of the Charter may occur if police, prosecutorial, or correctional practices or some law has the effect of violating the accused’s rights. Under section 24 of the Charter, courts can provide a range of remedies if police, prosecutors, or prison officials violate the Charter rights of the accused. These remedies can include the termination of a prosecution through a stay of proceedings, the release of a person, and the exclusion of unconstitutionally obtained evidence. Criminal laws passed by Parliament can also be struck down by the courts under section 52 of the Constitution Act, 1982, if they are found to violate one of the rights in the Charter and the government cannot justify the violation under section 1 of the Charter as a proportionate and reasonable means to fulfill an important purpose. Parlia-

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ment and the provincial legislatures retain the final, but very rarely exercised, option to declare that a law will operate notwithstanding the fundamental freedoms, legal rights, or equality rights otherwise guaranteed under the Charter.38

1) Division of Powers and the Charter Compared

The division of powers in the Constitution Act, 1867 and the Charter provide a complex constitutional framework that governs the enactment of criminal and regulatory offences in Canada. The history of legislation requiring Sunday observance provides a good illustration. At the turn of the twentieth century, provincial legislation requiring Sunday observance was struck down on the grounds that it was criminal law that only Parliament could enact.39The federal Lord’s Day Act40was subsequently upheld as valid criminal law because it was designed with the religious purpose of requiring the observance of the Christian Sabbath.41By that time, however, the Charter had been enacted, and the Supreme Court decided that a law enacted with the religious purpose of compelling observance of a common Sabbath was a direct violation of freedom of conscience and religion as protected under section 2(a) of the Charter.42Since the law was based on a purpose contrary to Charter values, it could not be justified by the government under section 1 and was declared to be invalid.

A year later, the Supreme Court had to decide the constitutionality of a provincial law requiring Sunday closing. The Court found that the law had been enacted for the secular purpose of establishing a common rest day, a matter of civil and property rights within provincial jurisdiction. At the same time, however, the Court found that the law violated the right to freedom of religion and conscience because it had the effect (but not the purpose) of placing burdens on those who, because of their religious beliefs, could not open their stores on either Sunday or their own religious Sabbath.43That conclusion did not end

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the constitutional analysis, however, because the Court held that the government had justified the law under section 1 of the Charter as a reasonable limit that was necessary to ensure a common rest day. The legislatures in many Canadian jurisdictions had the last word when they repealed Sunday closing laws in response to public opinion.

2) The Charter and the Investigation of Crime

Before the enactment of the Charter, courts conducting a criminal trial were generally not concerned with the manner in which the police investigated crime. The failure of the police to warn suspects that their statements might be used against them did not affect the admissibility of their statements44and evidence could not be excluded because it was unfairly obtained.45The only real restraint was that confessions had to be proven to be voluntary in the sense that they were not obtained through fear or hope of advantage. This was done to ensure the reliability of confessions more than their fairness. The Charter has changed this exclusive emphasis on crime control by recognizing rights to be secure against unreasonable search and seizures (section 8); rights not to be arbitrarily detained or imprisoned (section 9); and rights to be informed of the reason for arrest or detention and to retain and instruct counsel without delay (sections 10(a) & (b)). A violation of any of these rights can result in the exclusion of relevant evidence from the criminal trial if its admission will bring the administration of justice into disrepute (section 24(2)).

a) Search and Seizure

Section 8 of the Charter provides that everyone has a right to be secure against unreasonable search and seizure. This provision protects all reasonable expectations of privacy, and such expectations are not sacrificed simply because an accused was committing a criminal offence or risked that the state would discover his or her illegal activities.46What constitutes a reasonable expectation of privacy, however, depends on the context. In divided decisions, the Court has held that students enjoy a reasonable expectation of privacy that is violated when sniffer dogs are used to examine their backpacks or when such dogs are used with respect to bus station lockers. The dogs have the ability to detect the

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use being made of the backpack or locker.47In contrast, the Court has held that the use of technology to detect heat arising from homes for drug enforcement purposes does not invade a reasonable expectation of privacy because the technology does not permit inferences about the precise activity causing the heat.48Searches of garbarge put out for collection do not invade reasonable expectations of privacy.49Individuals and businesses operating in a regulated field have diminished expectation of privacy over their business records.50Regulatory inspections, like regulatory offences, are thought to carry with them less stigma and for this reason the state is given greater scope in its activities. Similarly, a demand by government investigators for the production of documents is seen as less intrusive than an actual search.51The Supreme Court has made clear, however, that warrant requirements apply when regulators "cross the Rubicon" from regulation to prosecution. This occurs when the predominant purpose of their inquiries is the determination of penal liability.52Complex issues are raised when regulatory search and seizure powers are intertwined with searches for evidence of crime.53It is not only those who operate in a regulatory context that have diminished or no expectations of privacy. An individual who occasionally stays at an intimate friend’s home may have no reasonable expectation of privacy when that friend’s home is searched,54and passengers may not have a reasonable expectation of privacy when the car they are driving in is searched.55Students in schools also have diminished expectations of privacy from searches,56as do prisoners,57drivers asked to produce their licences,58individuals who pass customs,59and those whose power consumption can be determined by access to commercial records.60

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If there is a reasonable expectation of privacy, the state must generally obtain prior judicial authorization to authorize a search and seizure, except if there are exigent circumstances that make it impossible to obtain a warrant.61The police need not wait to obtain a warrant if there is imminent danger that evidence of a crime will be destroyed or that someone will be harmed. At the same time, s.8 requires some form of accountability for searches even in such exigent circumstances and the Court has struck down a scheme of warrantless electronic surveil-lance in exigent circumstances on the basis that the scheme did not even require notification after the fact of those who had their conversations electronically recorded.62The police also do not need to obtain a warrant if the person consents to a search or if they are conducting a reasonable search incident to arrest.63Searches incident to arrest must not be conducted in an abusive fashion and do not include the power to seize bodily samples for DNA testing64or to take body impressions.65The power to conduct a strip search does not follow automatically from the power to conduct a less intrusive search incident to arrest. There must be reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest in order to discover weapons or evidence.66When prior judicial authorization for a search and seizure is sought, it should generally be granted only if there are reasonable and probable grounds established on oath to believe that an offence has been committed and that the search will reveal evidence of the offence.67Searches must also be authorized by law, and the law must be reasonable.68In response to numerous decisions holding warrantless and illegal searches to be unreasonable, Parliament has enacted new laws to grant warrants and authorizing...

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