Rights in the Criminal Process

AuthorRobert J. Sharpe; Kent Roach
Pages294-353
294
CHAPTER 14
RIGHTS IN THE
CRIMINAL PROCESS
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 de-
tailed 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 ab-
stract models of the crim inal process f‌irst put forward by the American
scholar Herbert Packer to assess the inf‌luence of the American Bill of
Rightson the criminal justice system.1 The 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, usu-
ally leading to a guilty plea. The second is the “due process” model in
which the focus is on controlling the exerci se of police powers through
an elaborate series of procedural g uarantees, violation of which results
in the release of the accused regardless of guilt or innocence. The Can-
adian 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 crim-
inal justice. The fundamental reason for the existence of the criminal
1 H. Packer, The Limits of the Criminal Sanct ion (Stanford: Stanford Univ ersity
Press, 1968). See also K. Ro ach, Due Process and Victims’ Rights: The New Law
and Politics of Criminal Justice (Toronto: University of Toronto Pre ss, 1999).
Rights in t he Criminal Proce ss295
law is to protect society from those individuals whose behaviour causes
serious harm. The severe sanction of deprivation of liberty and im-
prisonment 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 pro-
cedural 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 pro-
cess” model, restrain the exercise of coercive power in a signif‌icant
way. They are designed to protect the innocent and to avoid the risk of
wrongful conviction. But they also benef‌it the guilty, since they ensure
that everyone caught up in the crim inal process should be treated fairly.
A part of our tradition is the principle that it is better that ten guilty
persons should go free than one innocent person be convicted. It is not
possible to have a scheme of rights that protects only those who are
innocent of wrongdoing. Procedural rights often cause consternation
when they assist the g uilty. Yet, that is a price to be paid in a free s ociety
where rights are enjoyed by all individuals.
The criminal justice system is continually striving to strike an ap-
propriate balance between crime control and the protection of society
on the one hand, and fairness to accused persons and the prevention
of abuse of police powers on the other. The courts have always played
an important role in this exercise. However, by entrenching a num-
ber of procedural rights in the constitution, the Charter of Rights and
Freedoms has increased the courts’ responsibility to delineate the line
between crime control and due process. In addition, other values, such
as the right of privacy and other rights of victims of crime, and the
equalit y rights of groups such as women, children, and minorities who
may be disproportionately subject to some crimes, are relevant. While
the fundamental purpose of the Canadian criminal justice system re-
mains the protection of society, there can be little question that the
result of the courts’ efforts has been to move Canada closer towards
the due-process end of the spectrum. At the same time, many of the
Charter decisions examined in this chapter demonstrate the reality of
dialogue between court s and legislatures under the Charter. Parliament
THE
CHARTER OF R IGHTS AND FR EEDOMS
296
has frequently resp onded to the Supreme Court’s due-process decisions
with new legislation that, while accommodating due-process rights
also advances society’s interests in controlling crime.
A. SECTION 7 AND THE PRINCIPLES OF
FUNDAMENTAL JUSTICE
1) The Fault Element
As noted in Chapter 13, a crucial question that was faced in the early
years of the Charter was whether the very general language of section 7
permitted the court s to review the substance of laws or whether judicial
review was restricted to procedural matters. In Reference Re s 94(2) of
the Motor Vehicle Act (BC),2 the Supreme Court held that “the pri nciples
of fundamental justice” are not restr icted to procedural values but have
substantive content as well. The case involved a fundamental issue in
the criminal law, namely, the extent to which moral blameworthiness
should be a requirement for conviction. Criminal offences typically re-
quire proof of two elements: harm and fault. Ordinarily, the fact that
harm has resulted from someone’s conduct is not enough to support a
conviction. To label someone a criminal, we must also be satisf‌ied that
the individual charged is morally blameworthy. The behaviour of the
individual accused of a crime must be shown to have fallen short of
an expected standard by intending, or at least foreseeing, the forbid-
den harm. However, the fault requirement is often diff‌icult to prove,
and the legislature may judge it to be in the public interest to impose
a sanction without proof of fault of the accused. ReMotor Vehicle Act
involved such a law. It imposed a mandatory penalty of imprisonment
for driving an automobile while one’s licence was under suspension.
There were a number of situations that could lead to a licence suspen-
sion without the knowledge of the licence holder. An individual might
not have even been aware of a licence suspension, and so the result
was that a person who had no criminal intent could face a mandatory
jail sentence. In the Supreme Court of Canada’s view, such a situation
violated the principles of fundamental justice:
A law that has the potential to convict a person who has not really
done anything wrong offends the principles of fundamental justice
and, if imprisonment is available as a penalty, such a law then vio-
lates a person’s right to liberty under s 7 of the Canadian Charter of
2 [1985] 2 SCR 486, 24 DLR (4th) 536 [ReMotor Vehicle Act].

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