Rights in the Criminal Process

AuthorRobert J. Sharpe; Kent Roach
C H A P T E R 14
The Charter of Rights and Freedoms has had a profound impact on crim-
inal justice. Charte r claims are routinely asserted in cr iminal proceed-
ings. The courts have decided thousands of cases, making detailed
consideration of investigative techniques, pre-tr ial procedures, and the
trial proces s itself. Here we oer a sampling of some of the most signif‌i-
cant issues raised by the Charte r.
One way to examine the i mpact of the Charter is to use t he abst ract
models of the crimi nal process f‌irst put forward by the Americ an scholar
Herbert Packer to assess the inf‌luence of the American Bill of Rights on
the crimin al 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 ecient police and prosecutori al 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 t hrough an elab-
orate series of procedural gua rantees, violation of which result s in the
release of the accused regard less of guilt or innocence. The Canad ian
crimina l justice system, in common with t he 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
crimina l justice. The fundamental rea son for the existence of the crim-
inal law is to protect society from those individuals whose behaviour
1 H Packer, The Limits of the Criminal Sanctio n (St anford: Stanford Unive rsity
Press, 1968). See also K Roac h, Due Process and Victims’ Rights: The New Law
and Politics of Criminal Justice (Toronto: University of Toronto Pre ss, 1999).
causes serious harm. The severe sanction of deprivation of liberty and
imprisonment is justi f‌ied by the criminal’s signif‌icant depart ure from
the norms of civil society and by the need to punish such conduct in
order to protect society from further tra nsgressions.
Our system of crimi nal justice has a lways 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 t hese risks, t he crimina l process has evolved a range of
procedural 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 t he presumption of innocence, the right
to silence, habeas corpus, a nd 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, restrai n the exercise of coercive state 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.
Part of our tradition is the principle that it is better that ten guilty per-
sons 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 cause consternation
when they assist the g uilty. Yet that is a price to be paid i n a free society,
where rights are enjoyed by all indiv iduals.
The criminal just ice system is continually striving to str ike an
appropriate balance between cr ime control and the protection of society
on the one hand and fairness to accused persons a nd the prevention of
abuse of police powers on the other. The courts have always played an
important role in this e xercise. However, by entrenching a number of
procedural rights in t he Constitution, the Charter of Rights and Freedoms
has increased the courts’ responsibil ity 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 equality
rights of groups such as women, children, and minorities, who may be
disproportionately subject to some crimes, are relevant. Although the
fundamental pur pose of the Canadian crimin al justice system remains
the protection of society, there can be little question that the resu lt of the
courts’ eorts has b een to move Ca nada closer towards the due process
end of the spectrum. At the same time, many of the Charter decisions
examined in t his chapter demonstrate the re ality of dialogue bet ween
courts and legislatures under the Charter. Parliament has frequently
responded to the Supreme Court of Canada’s due process decisions w ith
Rights in t he Criminal Proce ss 311
new legislation that, although accommodating due process rights, also
advances society’s interests in controlling crime.
1) The Fault Element
As noted in Chapter 13, a crucial quest ion 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 principles
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 blameworthi-
ness should be a requirement for conviction. Crimina l oences typically
require proof of two elements: harm and fault. Ordinarily, 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 standard by intending, or at least foreseeing, the forbidden
harm. However, the fault requirement is often dicult to prove, and the
legislature may judge it to be in the public interest to i mpos e a sanction
without proof of fault of the accused. Re BC Motor Vehicle Act involved
such a law. It imposed a mandatory penalty of impr isonment for driving
an automobile while one’s licence was under suspension. There were a
number of situations that could lead to a licence suspension without
the knowledge of the licence holder. An individual might not have even
been aware of a licence suspension, so t he re sult 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 t he potential to convict a p erson who has not real ly
done anything w rong oends the principles of f undamental just ice
and, if impris onment is available as a penalt y, such a l aw then violates
a person’s right to libert y under s 7 of the Canadian Charter of Rights
2 Reference Re s 94(2) of the Motor Vehicle Act (BC), [1985] 2 SCR 486, 24 DLR
(4th) 536 [Re Motor Vehicle Act].

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