Rights in the Criminal Process

• Author: Robert J. Sharpe; Kent Roach
• Pages: 294-353

294

CH AP TER 14

RIGHTS IN THE

CRIMINAL PROCESS

The Char ter of Rights and Freedoms has had a profound impact in the

area of crimin al law. Charter claims are routinely as serted in crimin al

proceedings. The courts have decided thousa nds of cases, making de-

tailed consideration of investigative tech niques, 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

Rights on the criminal justice system.1 The f‌irst is the “crime control

model” in which the focus of the crimin al justice system is to f‌ind and

punish the guilty t hrough 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 crim inal justice system, in common with t he systems of other

liberal democracies, ha s always exhibited features of both models.

Crime control is bound to be a central feature of any system of crim-

inal justice. The fundamental rea son 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 ss 295

law is to protect society from those indiv iduals whose behaviour cause s

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 a nd by the need to punish such conduct in order

to protect society from further transgressions.

Our system of crimi nal justice has always recognized, however, that

crime control is achieved through the a ssertion of coercive state power,

which inevitably involves risks of abuse and oppression. To guard

against these r isks, the crimin al process has evolved a range of pro-

cedural protections, designed to ensure that individuals suspected of

crime are dealt wit h 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 cor pus, and the right to be tried by a jury of one’s

peers. These procedural norms, identi f‌ied as elements of the “due pro-

cess” model, restrain t he 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 b enef‌it 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 th at protects only those who are

innocent of wrongdoing. Procedural rights often c ause 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 indiv iduals.

The criminal just ice system is continually striving to strike an ap-

propriate balance between cr ime 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 thi s exercise. However, by entrenching a num-

ber of procedural rights in t he constitution, the Charter of Rights and

Freedoms has increa sed 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 right s 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 pur pose of the Canadian criminal justice system re-

mains the protection of society, there can be little question that the

result of the courts’ efforts h as 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 ch apter 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 th at, 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 restr icted 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 fundament al issue in

the crimin al law, namely, the extent to which moral blamewort hiness

should be a requirement for conviction. Criminal offences t ypically re-

quire proof of two elements: harm and fault. Ord inarily, the fact that

harm has re sulted 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 cr ime must be shown to have fallen short of

an expected stand ard 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 t he public interest to impose

a sanction without proof of fault of the accused. Re Motor 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 re sult

was that a person who had no cr iminal intent could face a mandatory

jail sentence. In the Supreme Court of Canada’s view, such a situation

violated the principles of funda mental justice:

A law that has t he potential to convict a person who h as not really

done anything w rong offends the principles of fund amental justice

and, if impris onment is available as a pena lty, such a law then vio-

lates a person’s right to lib erty under s 7 of the Canadian Charte r of

2 [1985] 2 SCR 486, 24 DLR (4th) 536 [Re Motor Vehicle Act].