Rights in the Criminal Process

• Author: Hon. Robert J. Sharpe, Kent Roach
• Pages: 274-330

274

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

criminal justice. The fundamental reason for the existence of the crim-

1 H. Packer, The Limits of the Criminal Sanct ion (Stanford: Stanford Uni versity

Press, 1968). See also K. Ro ach, Due Process and Victims’ Rights: The New Law

and Politics of Criminal Justice (Toronto: University of Toronto Pres s, 1999).

Rights in t he Criminal Proce ss275

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, prod-

ucts of both the common law tradition and statutes enacted by Parlia-

ment, 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 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 so ciety

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

equality 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

276

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].