Rights in the criminal process

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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The Charter of Rights and Freedoms has had a profound impact in the area of criminal law. Charter claims are routinely asserted in criminal proceedings. The courts have decided thousands of cases, making detailed consideration of investigative techniques, pre-trial procedures, and the trial process itself. Here we offer a sampling of some of the most significant issues raised by the Charter.

One way to examine the impact of the Charter is to use the abstract models of the criminal process first put forward by the American scholar Herbert Packer to assess the influence of the American Bill of Rights on the criminal justice system.1The first is the "crime control model" in which the focus of the criminal justice system is to find and punish the guilty through efficient police and prosecutorial work, usually leading to a guilty plea. The second is the "due process" model in which the focus is on controlling the exercise of police powers through an elaborate series of procedural guarantees, violation of which results in the release of the accused regardless of guilt or innocence. The Canadian criminal justice system, in common with the systems of other liberal democracies, has always exhibited features of both models.

Crime control is bound to be a central feature of any system of criminal justice. The fundamental reason for the existence of the crim-

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inal law is to protect society from those individuals whose behaviour causes serious harm. The severe sanction of deprivation of liberty and imprisonment is justified by the criminal’s significant departure from the norms of civil society and by the need to punish such conduct in order to protect society from further transgressions.

Our system of criminal justice has always recognized, however, that crime control is achieved through the assertion of coercive state power, which inevitably involves risks of abuse and oppression. To guard against these risks, the criminal process has evolved a range of procedural protections, designed to ensure that individuals suspected of crime are dealt with fairly and humanely. These guarantees, products of both the common law tradition and statutes enacted by Parliament, include such basic rights as the presumption of innocence, the right to silence, habeas corpus, and the right to be tried by a jury of one’s peers. These procedural norms, identified as elements of the "due process" model, restrain the exercise of coercive power in a...

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