A. The Charter and the Criminal Law

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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1) The Charter and the Due Process Model

In his landmark study of the criminal process, Herbert Packer outlined two contrasting models of the criminal process.2In the crime control model, the justice system resembled an assembly line, with the police and prosecutors being able to identify the factually guilty and to secure a guilty plea. In contrast, he saw an emerging due process model that resembled an obstacle course, because it required the state to comply with various legal rights in the investigative and trial process before

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it could secure a conviction. If the police or prosecutor violated the accused’s legal rights, courts were prepared to exclude evidence or terminate the case regardless of whether the accused was factually guilty of the crime charged.

The Charter, as interpreted by the Supreme Court of Canada, has injected due process elements into the Canadian criminal process. As discussed in chapter 2, suspects now have constitutional rights against unreasonable searches, arbitrary detentions, and the right to counsel. If the police do not comply with these rights, the evidence they obtain can be excluded under section 24(2) of the Charter. An accused also has rights in the criminal trial process not to be denied reasonable bail without just cause, to be tried within a reasonable time, to receive disclosure of relevant evidence in the Crown’s possession, and to be presumed innocent. The Court has interpreted the last right broadly, but governments have been able to justify many limitations on that right under section 1 of the Charter as reasonable and necessary means to facilitate the prosecution of various crimes.

The due process model describes some elements of the criminal justice system under the Charter. At the same time, the Charter era has not demonstrated the skepticism towards the use of the criminal sanction with respect to so-called victimless crime that Packer associated with the due process model. The Supreme Court has refused to constitutionalize the liberal principle that the criminal sanction only be used to respond to proven harms and it has upheld broad laws targeting prostitution, assisted-suicide, and pornography from Charter challenge. Although they have crafted some exemptions for medical use of marijuana, the courts have not invalidated drug laws. It is telling that recent challenges to the prostitution laws have not been based on liberty-based arguments or open skepticism about the criminal sanction, but on arguments that prostitution laws harm the safety and equality rights of sex workers and section 9 equality rights of the physically disabled. In other words, due process and liberty claims are supplemented with claims about equality and victimization.

As Packer observed, the due process model was nurtured by the appellate courts, most notably the Supreme Court, and was dependent on changes within that institution. In recent years, there has been a trend, albeit not invariable, to more deference to police actions. The Court has created police powers of investigative detention while at the same time holding them to Charter limits. It has also allowed the police to engage in prolonged interrogation of suspects who have invoked the right to silence. Counsel does not have to be present so long as they have been given a reasonable opportunity to contact counsel and the

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statement obtained is involuntary. These cases provide some support for the critical comments that "due process is for crime control" in that they demonstrate how due process both enables and restrains law enforcement. The courts have also stopped short of requiring that police interrogations be recorded. Recent changes to the exclusion of unconstitutionally obtained evidence under section 24(2) underline that such evidence should never be automatically excluded.

Prison populations have increased significantly in the Charter era and will probably expand more in the future given increased Parliament use of minimum sentences and restrictions on conditional sentences and enhanced credit for "dead time" spent in remand when a person is denied bail pending trial. Moreover, the accused is not the only actor in the criminal process that has claimed Charter rights, and a number of cases have been influenced by concerns about the rights of crime victims and groups such as women, children, and minorities who may be disproportionately subject to some crimes. Indeed, the criminal sanction has been enthusiastically used as a means to respond to risks of crime and as a means to respond to even slight risks of harm.

2) The Charter and the Crime Control Model

The enactment of the Charter has not eclipsed the utility of Packer’s description of the crime control model. Most criminal cases...

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