In 1982, Canadaís Charter of Rights and Freedoms came into force. In the two decades which followed, a surging river of case law made significant changes to the way criminal law is administered. But has the Charter made any difference to the ordinary, law-abiding Canadian? Are his and her rights and freedoms any the more secure? Or has the Charter benefited only criminals and their lawyers?

For example, if it is not practically possible for innocent civilians to obtain compensation for wrongful searches, but Courts regularly exclude evidence of crime when criminals complain, has society ultimately benefited?

Changes to Criminal Law

It is widely assumed that the Charter has brought many changes to the criminal law and procedure. But has it? I propose to examine the following issues:

• Does the Charter protect against conviction of the innocent?
• When is the Charter a foundation for a substantial defence?
• When are its protections merely technical?
• What protections do criminals deserve?
• Does the Charter relieve punishment by process?
• Should portions of regulatory regimes be exempted from the Charter?
• Does the Charter require practical remedies or do its normative pronouncements provide adequate protection?

Section 8 of the Charter states that "Everyone has the right to be secure against unreasonable search or seizure." The only commonly awarded remedy for a violation of this provision is an exclusion of evidence. By its very nature, this remedy benefits only the guilty. Rarely, if at all, have remedies been provided to innocent parties. It is easy for an accused to raise the issue; innocent parties must circumvent a myriad barriers deployed by the state before they will be allowed to place their case in front of a Judge. And once they get their day in court, limited damages may render any victory pyrrhic at best. And even criminals may be losing their protection: there is a trend towards limiting the exclusion of evidence.

Similar criticisms can be made of the right to counsel [s. 10(a)], the right against pre-trial self-incrimination [s. 13], and the right not to be arbitrarily detained [s.9]. Law-abiding citizens might well argue that they gain nothing by granting rights to criminals if they have no practical access to those rights themselves.

A second category, the rights to be informed of the alleged offence on arrest [11(a)], to have trial within a reasonable time [11(b)] and to contest unlawful detention [10 (c) and 11(e)] likely benefit both the innocent and the guilty. However, other than 11(b), these rights largely pre-existed the Charter. To this category can be added the protection against cruel and unusual punishment [s.12] because there is a limit on the punishment even the most guilty among us deserve.

The Courts are likely to provide only minimal protection for our fundamental freedoms [s.2]. Active state action against these freedoms will be restrained by the judiciary but governments will not be compelled to foster the conditions necessary for the enjoyment of these privileges. It is unlikely that the Charter will ever prevent the Leader of the Opposition from standing up in Parliament and suggesting that University Professor Sunera Thobani ought not be free to express her views on historical matters of foreign policy. I propose to examine the issue of whether the government and the courts ought to take more vigourous actions in support of these "fundamental" freedoms.

The last category, that of equality rights [s.15], has gained little protection from the Courts in the Criminal sphere. Differential proclamation of legislation from province to province has been repeatedly upheld. I propose to examine the case law in this area from both constitutional and public policy viewpoints. I have already examined the specific costs to Ontario of its failure to proclaim specific legislative enactments such as the curative discharge provisions relating to impaired driving. Here I propose to examine the costs and benefits to the nation as a whole of the federal governmentís ability to enact one law for Newfoundland and another for Alberta.

Changing Attitudes

Recent opinion polls have indicated a widespread willingness to forgo, or at least to suspend many civil liberties in the wake of the September 11 terrorist bombings. I am interested in exploring whether this changed attitude will persist. Also, how will public opinion affect judicial attitudes and rulings?

Will the Charter have to provide practical protection to all segments of society in order to maintain its current high level of popular support?
 
 

For more information on the Charter, see: http://laws.justice.gc.ca/en/charter/  or http://www.laurentia.com/ccrf/.