E. Rights of Persons Charged with an Offence

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

Page 305

Section 11 of the Charter deals with the rights of persons charged with an offence. This section applies only to criminal or quasi-criminal proceedings and proceedings that give rise to penal consequences. Accordingly, it does apply to prosecutions for criminal offences proper, as well as to prosecutions under provincial legislation. Professional and other similar disciplinary proceedings will be caught only where the consequences are truly penal in nature, reflecting an attempt to redress a wrong done to society as a whole.131Section 11 reads:

Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the of-fence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Page 306

1) Right to Be Informed without Unreasonable Delay of the Specific Offence

An accused person needs to know the precise nature of the charges he or she faces for a number of reasons. Identification of the specific offence will enable the accused to challenge the proceedings if they are unlawful or to prepare a defence if they are not. The right to be informed of the offence without unreasonable delay also defines and narrows the proceedings, thereby limiting the scope of the prosecution and the powers of the police.

2) Right to Be Tried without Unreasonable Delay

It has often been said that "justice delayed is justice denied." Delay in prosecution may result in unfairness to the accused since it may well become more difficult to defend oneself after the passage of time. Quite apart from the unfairness, all parties - victims, accused persons, and society at large - have an obvious interest in speedy justice.

Delay in bringing criminal charges to trial has been the subject of a number of controversial decisions of the courts. The most significant was R v Askov,132where the Supreme Court considered a case that had taken twenty-four months to come to trial and where the cause of the delay was no more than the product of an overburdened system. The Court ruled that systemic delay could trigger a section 11(b) claim. While the Court indicated that it was mindful that the allocation of resources was a matter for political decision, the right to a speedy trial was vital to both the accused and the community at large, and solutions to systemic delay had to be found. The Court found that in the circumstances of the case, which arose in one of the busiest and most congested judicial districts in Canada, a two-year delay between committal and trial was unacceptable and in violation of the Charter’s guarantee.

The impact of the decision was enormous. Thousands of criminal charges were either dropped or stayed, and the entire issue of court delay and the allocation of judicial resources came under intense scrutiny. Although the Court softened its approach somewhat in a subsequent case,133the effects of Askov continue to be felt. In a 2009 sexual assault case, for example, charges were stayed because of a thirty-month systemic delay.134Overall, the risk of having a prosecution stayed for want

Page 307

of a speedy trial acts as a powerful incentive for the authorities to bring

prosecutions forward to trial on a timely basis.

A distinction has been drawn, however, between pre- and post-charge delay. In Canada, there is no statute of limitations for serious criminal offences. In recent years, significant numbers of sexual assault charges have been laid years after the occurrence of the alleged offence. The Supreme Court has stated that delay in bringing charges will only rarely be relevant to the right to be tried without unreasonable delay.135

In certain circumstances, unexplained or unjustified delay in initiating proceedings may give rise to a section 7 claim.136

3) Right against Self-Incrimination

The right against self-incrimination is protected in a variety of ways under the Charter. This right has already been mentioned under section 7. It is also embodied in section 13 of the Charter, discussed below, which protects witnesses from having incriminating evidence used against them in subsequent proceedings. The right conferred by section 11(c) relates specifically to the trial of the accused and protects the accused from having to testify.

Silence of an accused cannot, by statute, be the subject of comment by counsel or by the judge. Yet, while an accused person does not have to testify, to what extent does section 11(c) protect the accused who elects to remain silent from having the judge or jury draw an adverse inference from his or her silence? In a 1994 decision,137the Supreme Court suggested that it would be a violation of the right against self-incrimination to draw an adverse inference where the prosecution has failed to make out any case against the accused. But where there is "a case to meet," the accused who fails to answer must risk the possibility that a failure to testify may lead the judge or jury to convict.

The Supreme Court has held that a corporation is not entitled to claim the protection of section 11(c) and that an officer of an accused corporation can be compelled to testify,138a decision that corresponds to the Court’s general tendency to avoid applying the Charter to protect purely commercial or corporate interests.

Page 308

4) Presumption of Innocence and Right to a Fair Hearing by an Independent and Impartial Tribunal
a) Presumption of Innocence

The presumption of innocence has long been an important common law principle in Canada. The accused does not have to prove anything. It is for the prosecution to prove the guilt of the accused beyond a reasonable doubt, failing which the accused is entitled to an acquittal. However, before the Charter, this principle was subject to legislation overriding the presumption and Parliament frequently enacted reverse-onus provisions. A "reverse-onus" provision alters the usual rule and requires the accused to prove innocence. A significant body of caselaw challenging legislation of this kind has now developed under the Charter.

The case of R v Oakes,139better known for its articulation of the proportionality test under section 1, provides an example. Narcotics legislation provided that where, on a charge of possession for the purposes of trafficking, it was shown that an accused person was in possession of a prohibited drug, the burden shifted to the accused to prove that he or she was not in possession of the drug for the purposes of trafficking. Describing the presumption of innocence as "essential in a society committed to fairness and social justice," the Supreme Court held that the presumption of innocence was violated and that the violation could not be sustained under section 1. The reverse-onus provision applied even where an accused was in possession of very small quantities of narcotic, and in light of the lack of a rational connection between the proved fact, possession, and the presumed fact, trafficking, the provision was found to create an unjustifiable risk of conviction without proof of guilt and an unwarranted limitation on the presumption of innocence.

However, many reverse-onus provisions have survived as reasonable limits under section 1. For example, the Supreme Court upheld as a reasonable limit the presumption applicable to drinking and driving cases that, where the accused is found behind the wheel of a car, care and control of the vehicle, an essential element of the offence, shall be presumed absent proof to the contrary.140Similarly, the Court upheld as a reasonable limit the presumption that an accused lives off the avails of prostitution if the fact is proved that he lives with or is habitually in the company of prostitutes.141

Page 309

In some situations, a reverse-onus provision may be part of a package that benefits the accused and that would not be made available without the reverse-onus provision. Parliament may be willing to establish a defence but requires the accused to prove it. An example is the anti-hate law, which makes truth a defence but which requires the...

To continue reading