H. Procedural Fairness

AuthorKent Roach
ProfessionFaculty of Law and Centre of Criminology. University of Toronto

Page 8

Both the police and the prosecutor must comply with the accused’s Charter rights, or risk having the trial process diverted from the issue of guilt or innocence by the accused seeking a Charter remedy for the violation of his or her legal rights. Sections 8 and 9 of the Charter provide individuals with the rights to be free from unreasonable searches and seizures and from arbitrary detentions during the investigative process. Section 10 ensures that people will know why they have been arrested or detained, and that they can obtain legal advice from a lawyer. Sections 7 and 11 of the Charter protect an accused’s right to a fair trial. These rights include the right to a trial in a reasonable time, and the right to a trial by jury when the accused faces five years’ imprisonment or more. The prosecutor, often known as the Crown, has special obligations of fairness and must disclose relevant evidence in its possession to the accused.

An important procedural protection is the presumption of innocence protected under section 11(d) of the Charter. The Crown must bear the burden of proving that the accused is guilty beyond a reasonable doubt. A reasonable doubt is not imaginary or frivolous, but is based on reason and common sense derived from the evidence or absence of evidence. The Crown must go well beyond demonstrating that it is probable or likely that the accused is guilty, but does not have to establish guilt as an absolute...

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