“First published in Supreme Court
Law Review, 2nd Series, vol. 45 (
Twenty-Five Years Later: The Impact of the Canadian Charter of Rights and Freedoms on the Criminal Law
Hon. Marc Rosenberg*
Arguably, the impact of the Canadian Charter of Rights and Freedoms is most visible in the field of criminal law. It has changed the way crime is investigated in this country. It has changed the way offences are prosecuted. It has changed the way that criminal law is practised. And, it has changed the way that due process is valued in society.
Although the impact of the Charter on the criminal law does not lend itself to easy quantification, the volume of Charter motions which pass before trial judges on a daily basis illustrates its reach. Charter motions can dominate the simplest of criminal cases as well as the most serious. Indeed, there is a perception that the fundamental question of guilt or innocence has become an inquiry secondary to how the case was investigated. This is, of course, little more than a perception. Like pre-Charter cases, the majority of post-Charter cases are resolved by guilty pleas. The overwhelming majority of cases are therefore minimally, if at all, impacted by the Charter. Nevertheless, the continually growing presence of Charter motions in criminal trials makes it difficult to deny that the Charter has profoundly influenced the system of criminal justice in this country.
Rather than attempt to summarize 25 years of Charter jurisprudence, I have decided to undertake the task of answering this simple question: Has the Charter been good for the criminal law?
In answering this question it is important to not overreach. It would be wrong to attribute all of the ills and all of the advances in the administration of criminal justice to the Charter. It would also be unfair to look at the broader societal context in which the Charter operates and dismiss it for having made no real change in the day-to-day lives of Canadians. It is only fair to measure the success of the Charter in terms of what a constitutional bill of rights is intended to do. In the criminal law context, a constitutional bill of rights is primarily a statement of individual rights. It is a means to limit or control state intervention rather than protect collective rights. It is fundamentally an exercise in line drawing; it tells the state where and when the individual has the right to be left alone and outlines the process for legitimate interference with an individual’s autonomy, including the process that leads to the imposition of criminal sanctions. The legal rights enshrined in the Charter are not the means to end hunger, achieve world peace or alleviate injustice in its many forms.
On the other hand, the Charter represents a devolution of power and responsibility from the executive and Parliament to the judiciary. So, it is not unfair to measure the success or failure of the Charter, in part, by the response of the judiciary to its new responsibilities and challenges.
When Parliament decided to include a charter
of rights in the newly repatriated constitution, few lawyers expected a
dramatic shift in the practice and administration of the criminal law.
There were too many signs that the judiciary and, indeed, the public as
a whole would be resistant. The example of the Supreme Court of Canada’s
appalling treatment of the Canadian Bill of Rights was plainly before us. And, there was the perception that a robust interpretation of the
American Bill of Rights by the
In the early 1980s, it was unclear that the Canadian consensus would have favoured an interpretation of the Charter that gave primacy to the rights of the individual over the collective security of the public. And, with some important exceptions, the earliest interpretations of the Charter in the criminal law were in line with this perception. They were, to be charitable, tentative. To give just one example, one of the early decisions from the Ontario Court of Appeal on the exclusionary rule suggested that evidence should be excluded following a Charter breach when admitting the evidence would shock the Canadian community. If this test had gained currency, evidence would rarely be excluded for Charter violations. But, as we know, things began to change very rapidly as the lower courts saw that the Supreme Court was prepared to take the application of the Charter seriously in the administration of criminal justice.
II. Therens: The Supreme Court of Canada Signals that the Charter Is to Be Taken Seriously
One case that is often overlooked but was of profound importance for criminal law practitioners is the 1985 decision of the Supreme Court of Canada in R. v. Therens. The issue in Therens was very simple: is a motorist who is required by police to provide samples for a breathalyzer test, detained within the meaning of section 10 of the Charter and therefore legally entitled to be informed of his or her right to counsel and to obtain advice from counsel before complying with the demand? As it would turn out, the Court’s judgment in Therens — a modest breathalyzer case from Moose Jaw, Saskatchewan — would signal to both the profession and the public that Charter interpretation was about to undergo substantial transformation.
How did the Court signal this impending change in Charter treatment and, more importantly, what change was to be expected?
First, the Court refused to apply its factually similar Bill of Rights decisions, which held that a motorist required to submit to breathalyzer tests at the roadside or at the police station was not detained, notwithstanding that the Bill of Rights and the Charter employ virtually identical language. The Court reasoned that the Charter required a more robust interpretation because the right to counsel had obtained constitutional status.
Second, the Court accepted that the judiciary had been given a profound responsibility to protect individual rights despite the potential societal costs: delay in enforcement, added expense and possible acquittals of some impaired drivers. This recognition of the need for the courts to take responsibility would play out again and again in Charter litigation in the criminal sphere as the Supreme Court continued to embrace and assert its new responsibility in increasingly controversial cases, such as murder.
Finally, the Court signalled its intention to use the exclusionary remedy in section 24(2) as an enforcement mechanism. The majority of the Court held that the breathalyzer evidence should be excluded despite a fairly convincing argument that the police were acting in good faith reliance on the Bill of Rights interpretation of the right to counsel requirement. At this point, there was no principled development of the exclusionary rule; that would evolve a couple of years later in R. v. Collins. That the Court employed the exclusionary rule as a means of demonstrating the importance of Charter rights that are closely tied to the administration of justice, such as the right to counsel, did, however, illustrate the Court’s commitment to its post-Charter role.
Thus, by 1985, it was clear that the Charter was going to make a genuine difference in the practice of criminal law. But has this difference been positive? Has the Charter been good for the criminal law?
III. The Criteria
I expect that if asked to measure the worth or success of the Charter, everyone would develop and employ different evaluative criteria depending on their perspective. The choice of criteria is very much a subjective exercise that depends on one’s values, which are likely informed by one’s position on the crime control/due process continuum. I have chosen these criteria to assess the Charter’s impact on the criminal law:
First, can it be said that the Charter has led to fewer wrongful convictions?
Second, has the Charter improved access to justice, especially for the vulnerable and disadvantaged? In addressing this query, I will focus not only on those who have been charged, but also on victims, witnesses and others who find themselves involved in the criminal justice system.
Third, has the Charter actually increased citizens’ sense of privacy and security from unwarranted state interference? If not, is there at least an increased perception that citizens have an increased sense of privacy and security from unwarranted state interference?
Fourth, has the Charter provided speedier justice?
Finally, has the Charter had a positive impact on the sentencing process? Has it furnished a model of a more rational, fair and humane system of punishment?
As noted, these criteria are largely subjective. Most of them defy resolution through application of empirical techniques. Thus, in undertaking the challenge of addressing these questions I have relied on anecdotal evidence and reasonable inferences from Charter cases. Naturally, the conclusions produced by this methodology are themselves subjective and impressionistic. I, however, was assisted in this approach by the fact that I have had professional experience under both the pre-Charter and post-Charter regimes, which provides a sense of perspective. What follows then is not intended as a rigorous systematic study of the Charter’s impact on criminal law, but rather, as a discussion of my perception of how the Charter has, through its substance and spirit, impelled various levels of change in the field.
1. Wrongful Convictions
The prevention of wrongful convictions is my first criterion not only because society places a high premium upon protecting the innocent from punishment, but also because I believe the prevention of wrongful convictions to be the essential measure of credibility and integrity of the criminal justice system. Given that the administration of justice is a human process, the Charter, like other similar instruments, can offer no guarantee of an error-free criminal justice system. The Charter, however, is a collective recognition of the danger of potential human rights abuses that may arise from the intrusion of state agents into the affairs of an individual in the criminal law context, the ultimate abuse being the conviction and punishment of the innocent. And, its due process provisions (sections 7 to 14) represent an acknowledgment by the state that legal limits on the scope of intervention imposed by minimum due process standards offer the best protection against wrongful convictions.
I accept of course that many Canadians would prefer to judge the credibility of the justice system not by how it deals with the innocent, but by how efficiently it metes out punishment to the guilty. I do not intend to dismiss or unfairly discount those concerns. Lawlessness, even the perception of lawlessness, has the potential to threaten the credibility of the criminal justice system as surely as the conviction of a Guy Paul Morin or a Thomas Sophonow. Therefore, a constitutional bill of rights must strike the right balance.
I rank the prevention of wrongful convictions first in my list of criteria not because I consider peace and security provided by punishment of the guilty unimportant or because I believe freeing the guilty has no impact on the system’s credibility, but rather, because other elements of the criminal justice system are more directly impacted by those concerns. The due process component of the Charter is first and foremost concerned with fairness, not crime control. And it should not be forgotten that the wrongful conviction of an innocent person means that the guilty party, the person who may represent a real threat to peace and security, remains free.
Section 7 of the Charter holds out to persons accused of crime in this country the promise of a fair system of criminal justice. Barring corruption and outright incompetence, a fair system should produce correct results; a factually innocent person should not be convicted. By this measurement, I think it is possible to say that the Charter has improved our system of criminal justice. As I will discuss below, the desire to avoid wrongful convictions has intensified efforts to ensure and safeguard fair procedure, which in turn has catalyzed some spectacular changes in the practice of criminal law.
Equally as important as the substantive and procedural changes in the practice of criminal law is the fundamental shift in public attitudes toward the criminal justice system created by the advent and judicial treatment of the Charter. The substance and purpose of the due process rights in the Charter has opened society’s collective eyes to the reality that some of the most significant elements of the pre-1982 criminal procedure, from disclosure to jury selection, were unfair. We have had to acknowledge that our pre-Charter criminal justice system contained significant flaws.
This attitudinal change is reflected in the
way we now look at wrongful convictions. We no longer accept that mistakes
are an inevitable but idiosyncratic artefact of an otherwise good system.
Because the Charter has made us carefully examine the fundamentals of the
system, we have come to see wrongful convictions as a symptom of systemic
failure as opposed to a slight flaw in an otherwise ideal system. In making
this statement I do not want to minimize the contribution that the Commissions,
beginning with the Marshall Inquiry through to the very recent Driskell Inquiry in
How then has the Charter contributed to the prevention of wrongful convictions? Although legions of examples can be provided in response to this query — as a result of the Oakes decision in 1986, for example, the Crown has been deprived of the advantage of the reverse onus except in the most unusual circumstances — I will limit my discussion to two examples: constitutional protection of the independence of statutory courts and constitutional recognition of the right to pre-trial disclosure.
(a) The Provincial Courts
of the Charter guarantees an accused the right to a trial by an independent
and impartial tribunal. In the 1985 Valente decision, the Supreme Court of Canada
confirmed that a person to be tried in the statute-based
For the overwhelming majority of people involved in the criminal justice system — accused, counsel, witnesses and victims — the Ontario Court of Justice is the face of justice in Ontario. That court administers the criminal law day-in and day-out fairly, efficiently and even-handedly; it is and is perceived to be an independent and impartial court that provides credible results.
While I cannot conclude that this evolution
would not have happened in any event, I believe that the almost breathtaking
advances in the professionalism of the Ontario Court of Justice can be
largely attributed to the constitutional guarantee of independence. The Charter forced
legislatures to recognize that the provincial court could no longer operate
as a police court; that in every essential and meaningful sense, the provincial
(b) The Right to Disclosure
The Charter has fundamentally changed the disclosure
regime in criminal cases. To appreciate the magnitude of the change, we
must first remind ourselves of pre-Charter disclosure practices.
In civil cases, where often little more than money was at stake,
If defence counsel were fortunate enough to get some form of disclosure, it almost invariably came with conditions such as an undertaking that disclosed witness statements not be used to cross-examine the witnesses who provided them.
The mere existence of that regime illustrates
the poverty and lack of imagination of the pre-Charter legal culture and
the profound impact of the Charter. Again, it may be that with time the
disclosure rules would have changed. In
We know because of the Marshall Inquiry and
other similar inquiries that systemic pre-Charter disclosure practices
contributed to wrongful convictions and miscarriages of justice. Because of the Charter we now have the most generous disclosure rules
of any common law country, far outstripping the
Can we say on a broader basis, outside of the Marshall Inquiry and other inquiries, that the number of wrongful convictions has been reduced as a result of the Charter-mandated development in disclosure practices? In fairness, we will never be able to answer that question. What we can say is that prior to the Charter inadequate disclosure was the norm, meaning that the system deprived some innocent people of the means to demonstrate their innocence. Perhaps that is all that needs to be said.
I do not want to leave the disclosure issue without making one further point. I am not sure that we have it right. Disclosure issues still plague the trial courts; the occasional inability of the prosecution to meet its obligations and occasional attempts by the defence to overreach can delay trials and bog down the proceedings in our courts with unnecessary motions. Our post-Stinchcombe full disclosure regime has not been without its costs to the system in terms of diversion of resources and delay. Disclosure obligations have led to increased costs to the state and lengthy, sometimes intolerable, delays in trials.
Obviously, full disclosure is not only preferable but also essential. But disclosure obligations, disclosure motions and disclosure remedies delay and frustrate access to justice within a reasonable time — innocent people spend time in jail awaiting trial while disclosure issues are sorted out. Thus, the real cost of a full disclosure system is borne not just by the state because of diversion of scarce prosecution and police resources, but also by the inmates awaiting trial, by the legal aid system that must fund the disclosure applications and multiple court appearances and, of course, by the courts that must divert their scarce resources to resolve disclosure issues. While I am confident that we will solve most of these problems in a way that respects the fundamental constitutional guarantee to make full answer and defence, it is important to recognize that the positive disclosure developments attributable to the Charter had unintended or unanticipated negative consequences. With this noted, I now turn to my second criterion for measuring the impact of the Charter, access to justice for the vulnerable and the disadvantaged.
2. Access to Justice
As discussed above, section 7 holds out the promise of the right to make full answer and defence as an instrument to protect against wrongful convictions. Similarly, section 10(b) holds out the promise of the right to counsel as a means of enhancing due process. It recognizes the value of legal advice and legal assistance in ensuring accurate results. But the right to counsel serves another important role as an instrument for improving access to justice. An accused without legal representation is at a profound disadvantage in the complex system of criminal justice. Without their own lawyers, accused are vulnerable to pressure to plead guilty, not well positioned to challenge the prosecution’s case and less able to mount a full defence. In short, they are at serious risk of being unable to adequately access the justice system.
(a) Right to Counsel at Trial
The section 10(b) right to counsel, litigated mostly under the rubric of drinking and driving cases, has been given an expansive, yet limited, interpretation. The section 10(b) right has been given a broad and generous interpretation in the context of immediate access to advice upon detention, and the state and legal aid system have responded accordingly. Police have been given cards with a set script they must recite when they arrest a suspect, and legal aid authorities have set up facilities to provide immediate advice to suspects. These are unquestionably very good steps in the direction of giving effect to the purpose of the right, but without more, they are profoundly inadequate. The advice that duty counsel can provide to a suspect over the telephone is, at best, modest. He or she knows almost nothing about the case or the suspect’s circumstances. More importantly, the current reach of the section 10(b) right to counsel all but ends with the first encounter with the state. After that, accused are thrown back on their own resources. The number of people who qualify for legal aid continues to shrink and the number of unrepresented accused who are now euphemistically labelled as “self-represented” increases.
I am concerned that the constitutional promise of the right to counsel remains unfulfilled for many accused. I should not be taken as blaming any single institution for this state of affairs. Legal aid funding issues are complex and with limited resources, the legal aid authorities are forced to make difficult choices. Legal aid funding, like all government funding, involves difficult questions of resource allocation. A dollar spent on legal aid is a dollar not available for cancer treatment, education programming or desperately needed infrastructure. As it is, because of the constitutional guarantee to a fair trial, legal aid has been forced to shift much of its funding towards criminal cases, leaving almost no civil legal aid and almost no family legal aid outside of child protection.
Accepting all of that, I worry that even though 25 years have passed since the inception of the Charter, the courts, society and government have yet to recognize and appreciate that a constitutional bill of rights is not cost neutral, that it not only speaks of rights but also imposes obligations on government to make those rights effective. In criminal matters, the prosecution is always represented by counsel. And the courts have already recognized that the system works best when both the Crown and the accused have legal representation. Why then do we not acknowledge that one cost of due process is some form of legal representation for the accused? The courts have, of course, held that in some cases the section 11 guarantee to a fair trial will demand state-funded legal representation even for someone who does not otherwise qualify for legal aid. But the bar has been set very high and relatively few cases fall within that category. I am concerned about our failure to fully engage in the public policy debate about the right to counsel. It may be that it is time for a Stinchcombe-level deconstruction and fundamental realignment of our thinking about the right to counsel.
(b) Right to Counsel at Investigative Detention
Just as I worry that we have not adequately responded to the real content of the right to counsel at the trial stage, I am concerned about our commitment to the right to counsel at the other end of the spectrum — in the everyday, and for some groups in our society, the seemingly routine police-citizen encounters on the streets and on the highways. As presently interpreted, investigative stops on the street and on the highway do not engage the right to counsel by law or in practice despite the possibility of immediate access to counsel because of the pervasiveness of cellular telephones. In these usually, but not always, brief encounters the Charter has had virtually no impact. The Charter does not even offer the illusion of protection. The young men who are stopped on the streets in poorer neighbourhoods can rely only on their own wits and resources. I fear that the costs of administering the criminal justice system in such a manner are cynicism, alienation and a perception that the effective enforcement of the criminal justice system depends upon ignorance of rights and inequality of opportunity to assert those rights.
The Charter is not a panacea for all of society’s ills, nor is it an antidote to poverty and systemic racism. It nevertheless remains striking that neither the state nor the courts have found a way to offer greater Charter protection to some of the most vulnerable and disadvantaged people in society.
Of course, there has been some real and measurable success in the vindication of rights to counsel. The police today, for example, could not move a suspect from station to station to evade access to retained counsel with impunity. On balance, however, the Charter cannot be considered a great success in the context of access to justice for the accused, at least as measured by the guarantee to the right to counsel. I do not consider it a great triumph for constitutional rights that a few impaired drivers have been able to avoid conviction because police officers made mistakes in reciting the rights from their notebooks. I worry that because of the lack of legal imagination and the perhaps understandable limits on resources, the Charter, rather than offering “meaningful and substantial protection”, provides only the illusion of the right to counsel and thus, inadequate access to justice for a significant number of ordinary citizens and accused persons.
(c) Access to Justice for Victims
The Charter has been more of a success for persons other than accused who find themselves involved in the criminal justice system. Largely as a result of the equality guarantee in the Charter as opposed to the legal rights traditionally associated with criminal justice, Parliament and the courts have begun to recognize the impact of the criminal justice system on other vulnerable groups. Women and children have been provided with greater protection as witnesses and as victims. The courts have been forced to take a more nuanced approach to the interpretation of criminal legislation; they have responded by recognizing that a fair trial does not simply embrace the rights of the accused but implicates broader notions of fairness. The victims’ movement existed before 1982, but the equality guarantee, which came into effect in April 1985, gave it a constitutional foothold from which to advocate for a fairer and more balanced approach to the administration of criminal justice.
Admittedly, we have some way to go. The courts remain a forbidding and alien place for most victims, witnesses and even ordinary members of society. Simple steps such as greater public legal education could greatly enhance access to justice for these individuals. Through their work, public legal education organizations demonstrate that the Charter is not simply an instrument of litigation; that even the legal rights in sections 7 to 14 are statements of fundamental societal values.
3. Privacy and Security
(a) Enhancement of Privacy and Security through the Exclusionary Rule
To fully appreciate the change in the criminal justice system in the area of privacy and security, we must look back at the state of affairs on April 16, 1982. A review of the use of the writ of assistance is particularly illustrative of the state’s pre-Charter approach to privacy and security from unwarranted searches. Under section 10(3) of the former Narcotic Control Act, on application by the federal Minister of Justice, a judge of the Exchequer Court (now the Federal Court) was required — there was no discretion — to issue to a person a writ of assistance “authorizing and empowering the person named therein, aided and assisted by such person as the person named therein may require, at any time, to enter any dwelling-house and search for narcotics”. There were similar provisions in the Food and Drugs Act and the Customs Act. Armed with this writ of assistance, police officers (usually senior members of the RCMP), could enter any dwelling house without a search warrant. Other provisions of these Acts gave any police officer the right to enter any place, not just dwelling houses, without warrant to search for narcotics or drugs.
The possibilities for abuse of these warrantless
search powers were endless and there were some outstanding examples, the
most remarkable being the 1974 raid on a
The unquestioned admission of the evidence obtained in the raid further exemplifies what little value the state placed on privacy and security prior to the advent of the Charter. Despite the outrageous conduct of the search, the manner in which the evidence was obtained played no part in the trial of the three people who were charged with drug offences. Moreover, even if the exercise of the search power had been unlawful, and as I said it was not, that illegality would not have mattered at these accused’s pre-Charter trial. Except for two exceptions, one common law (obtaining of confessions) and one statutory (electronic interception of private communications), the manner in which evidence was obtained was of no consequence. This too has changed. The manner in which evidence is obtained is now a relevant issue and as a result, the privacy and security of every Canadian has been enhanced.
Because the Charter is so often applied in the sordid context of drug raids and murder trials, we are often left with a skewed perspective of its impact. It is difficult to see the benefits of a guarantee against unreasonable search and seizure when so often it seems to only offer protection to people in possession of arms and drugs. This perspective, however, misses the point of the Charter search and seizure guarantee. It is because accused have an interest in contesting the validity of the search — possibly securing the exclusion of inculpatory evidence at their trial — that the state is required to lawfully exercise its search powers. Few people other than accused have a sufficient interest in vindicating their rights. Charter litigation outside the criminal trial context is costly and yields few tangible results. Thus, while the section 8 guarantee coupled with the section 24(2) power to exclude illegally obtained evidence has heavily influenced the conduct of criminal litigation, its impact is much broader. The possibility of exclusion of evidence in criminal cases has forced the state to lawfully exercise its broad powers of intervention into the privacy of all persons.
(b) Privacy and Risk Analysis
The protection against unreasonable search and seizure for all citizens was also greatly enhanced as a result of some far-sighted Charter decisions of the Supreme Court of Canada, principally decisions authored by La Forest J. in the early 1990s in which he dismissed the risk analysis that had dominated some of the American thinking about the Fourth Amendment. He rejected the idea that courts should measure the reasonableness of a search through the lens of the person engaged in illegal activity. The question is not, for example, whether a person conducting a well-advertised illegal gambling operation in a hotel room has a reasonable expectation of privacy, thus engaging section 8, but whether ordinary law-abiding members of society “who retire to a hotel room and close the door behind them have a reasonable expectation of privacy”. Adopting a risk analysis, which holds that people who conduct illegal activities assume the risk of state intrusion, would have had profound implications for privacy and security. We would have been forced back into an ever-shrinking zone of security, literally pushed back into our castles with the door bolted and the drawbridge up.
In these early cases, the Supreme Court of Canada affirmed that privacy and security are essential attributes of a free and democratic society; members of society are entitled to go about their daily business without having to accept the risk that the state will unlawfully and surreptitiously intercept and record their every word and every act. Thus, the question to ask when the legality of a search is being impugned is whether the person whose privacy was intruded upon could legitimately claim that in the circumstances it should not have been open to the agents of the state to act as they did without prior authorization. By framing the question as such, we engage in an analysis that takes account of the broader societal impact of application of the search and seizure guarantee. Put simply, this question directs the courts to an interpretation of the guarantee against unreasonable search and seizure that is consistent with the aims of a free and open society.
(c) Some Problems with Protecting Privacy and Security
In highlighting the Charter’s impact on privacy and security against unwarranted state intrusion, I do not intend to suggest that section 8 has rectified all issues concerning searches and seizures. Most state-citizen searches occur outside the scrutiny of the Charter through so-called consent searches and searches incident to detention and arrest. We have, as well, found it difficult to find a principled approach to the impact of systemic racism on the exercise of all police powers, including the search power, or to the effect of poverty and homelessness on security from unreasonable search and seizure. The protection against unreasonable search and seizure operates most robustly in the context of a police raid on a suburban dwelling. That constitutional guarantee is least effective in protecting the poor in public housing from unwarranted police intrusion. It appears to be, unfortunately, more of a challenge to apply the elaborate protections surrounding a dwelling-house adage to the corridors of a rundown apartment building and the cardboard boxes and sleeping bags of the homeless living on subway grates.
As well, the application of the section 8 guarantee has proved to be a challenge in protecting informational privacy and in protecting against increasingly sophisticated and intrusive investigative techniques.
The application of the exclusionary rule in the context of search and seizure cases represents yet another difficulty for the criminal justice system. The expansive approach to the right to counsel at the point of arrest, including a rule of virtual automatic exclusion of any evidence obtained by a violation of that right, has essentially flown under the public radar. Or perhaps this exclusionary rule has been tolerated because those rights were largely litigated in the context of “over 80” prosecutions where ordinary people, not criminals, committed what is, sometimes perceived wrongly, as barely more serious than a regulatory offence, at least where, as is almost always the case, no one has been injured. It is much easier to support rights when there is little public scrutiny and little impact on the general sense of community welfare. It is much more difficult where the objects of the inquiry are armed gangs in the business of trafficking narcotics. It is no wonder the Supreme Court of Canada has largely failed to come up with a principled approach to the application of the exclusionary rule in the search and seizure context, relying instead on a shopping list of highly subjective factors such as good faith versus bad faith infringements, or flagrant versus technical violations.
Notwithstanding the presence of these unresolved
issues, I am convinced that the Charter has proved a success in increasing
our personal sense of privacy and security against unwarranted state intrusion.
This sense of security is reflected not only in the decisions of the courts
but also in the communities of our nation. The
Moreover, the constitutional guarantee to security from unreasonable search and seizure has played an important role in preserving the integrity of the criminal justice system. In times of increased cynicism about all facets of government, including the justice system, the moral authority and legitimacy of the criminal justice system depends upon the principal actors in that system, such as the police, acting lawfully in the exercise of their investigative powers and upon the courts being willing to enforce the rule of law.
4. Speedier Justice
(a) The Promise of Section 11(b)
Section 11(b) guarantees an accused the right to a trial within a reasonable time. Has this guarantee had any impact on the pace of criminal litigation? One could easily point to our clogged provincial courts, especially those in large urban areas, operating right at, or even over, the Askov limits, and conclude that the right to a speedy trial is an illusion. This, however, is too simplistic an approach. A better question to ask is, what would the situation be if there was no section 11(b) guarantee? What would the court dockets look like if there was no pressure on the government to continually expand criminal justice services lest Askov be repeated, resulting in the dismissal of another 50,000 cases?
It would also be easy to dismiss the efficacy of the speedy trial right given what appears, at first blush, to be the Supreme Court of Canada’s rather hasty retreat from Askov in cases such as Morin. Again, however, such an assessment is flawed by its simplicity. It fails to recognize that the cases subsequent to Askov were decided in a context where the court could see the government’s earnest response to Askov through, for example, better pre-trial screening practices and increased commitment to diversion of young offenders and of adults charged with relatively minor offences to relieve the pressure on the courts. Thus, the section 11(b) guarantee can be said to be a success in at least two ways: it has kept the lid on delay that otherwise might spiral entirely out of control, and it has forced the authorities to take a hard look at the use of the criminal sanction. But, and it is a big but, there are some concerns. Let me catalogue some of them.
(b) Plea Bargaining
The need to relieve the pressure on the courts has led to an increased use of plea bargaining and thus, a shift of discretion away from the judiciary to the prosecution (and to some extent the defence) in sentencing decisions. The Ontario Court of Appeal and most other appellate courts have instructed trial judges that they are not to reject a joint submission except in the most egregious circumstances — those where the proposed disposition would be contrary to the interests of justice. In such situations, sentencing courts become little more than the traffic controllers of a system that is driven by Crown and defence counsel.
As well, the substantial premium in terms of sentence reduction offered to an accused who is willing to plead guilty risks distorting the system when an accused pleads guilty not because he or she committed the offence but because the consequences of standing on the statutory and constitutional right to trial are prohibitive. The Report of the Attorney General’s Advisory Committee that was struck in the wake of the Askov decision cautioned that “high standards of fairness must be scrupulously preserved and vigorously perpetuated”, not just in full-blown trials but also in the summary process by which the majority of criminal cases are resolved. We must be careful to ensure that the drive to safeguard the section 11(b) guarantee does not undermine fundamental fairness to accused and others within the criminal justice system.
(c) The Askov and Morin Guidelines
Another concern is with the Askov and Morin time guidelines themselves. These guidelines were designed to explain what would be tolerable institutional delay. The hope of the Askov decision was not that courts would be able to resolve cases within the suggested guidelines, but that the guidelines would serve as the outer limits. Some even hoped that the Askov guidelines could be shortened as governments recognized the need to contribute more resources to the criminal justice system. But in this area, as in so many others, the constitutional maximum seems, in busy jurisdictions, to have become the operating minimum. There is thus the perception that the state has not been forced to deal in a serious way with the appalling consequences of delay: the attenuation of the impact of punishment when the sanction is imposed months or years after the offence; the impact on victims who are in limbo for lengthy periods of time; the impact on the reliability of the verdict when witnesses are required to reconstruct events years later; and most disturbing, the lengthy periods of time spent by accused in pre-trial custody, which have resulted in an increasing number of persons serving their sentences before conviction — either in jail or on house arrest — rather than after conviction. This is an obvious distortion of our punishment system.
Again, these statements are not to be interpreted as attributing blame to the government or any other social institution. Delay is not a new problem. The value of the section 11(b) guarantee is that we have been forced to confront it. My point is simply that, as Cory J. so eloquently recognized in Askov, the right to a speedy trial is not simply an individual right but rather, a need that serves broader societal interests.
I do think, however, that in this area the courts can be rightly criticized for a lack of imagination. The only response to breach of section 11(b) has been a stay of proceedings — a termination of the case without a determination of guilt or innocence. While someone who is guilty could rightfully see a stay of proceedings as an excellent result, it is hardly satisfactory for the innocent or the victims of the offence. It may be that a more nuanced approach might be more satisfactory for society and also more effective. Consider a system in which the cost of delay is borne not by the victims and the innocent accused, who are deprived of their day in court, but by the state, which is required to pay real money to compensate the accused, witnesses and victims for failing to provide a speedy trial.
The bottom line: the jury is still out on the impact of the Charter in achieving a speedier justice. Section 11(b) may have prevented delays from spinning totally out of control, but the promise of a trial within a reasonable time is still very much a promise for many accused, victims and witnesses.
(a) Sentencing Minimums
The Charter has an impact on the system of punishment through at least two provisions: the protection against arbitrary detention and imprisonment in section 9, and the protection against cruel and unusual punishment and treatment in section 12. In discussing unreasonable delay, I spoke about the problem of the Charter maximum becoming the operating minimum. A similar concern could be alleged with respect to the impact of the Charter guarantee against unreasonable punishment.
The number of offences carrying minimum penalties has rapidly increased since 1982. Aside from the seven-year minimum for importing narcotics, the courts have generally not interfered with Parliament’s impoverished fascination with minimum jail terms as a solution to crime. The protection against cruel and unusual punishment has operated only at the very edges of the criminal justice system — offering protection only to the mythical 19-year-old single marijuana cigarette smuggler described in the Smith case and to Theodore Steele, the 55-year-old so-called “criminal sexual psychopath” who had spent 37 years in jail and who, when sentenced to an indeterminate period of detention at the age of 18, was described as having the “personality development of a nine year old”.
Otherwise, the Charter has had very little influence on our system of punishment. Maybe that is how it should be. Maybe this is one area that is best left to the good sense of lawmakers. It is, however, at least worth asking whether the focus on the constitutional minimum has led policymakers and the courts to forego the opportunity to design a more innovative and more compassionate system of punishment.
(b) Treatment of the Mentally Ill
An area that is also of great concern is the treatment of the mentally ill. Prodded by the 1991 decision of the Supreme Court of Canada in R. v. Swain, Parliament entirely revamped the mental disorder provisions in Part XX.1 of the Criminal Code leading to a fairer system with greater due process guarantees. But that is for those caught within the formal criminal justice system. Little has been done to improve the lot of the many mentally ill who are in our courts and our jails because of the inadequacy of community support resources. Too often the criminal justice system and the criminal sanction are resorted to in what could be characterized as desperation because of the lack of viable alternatives.
(c) The Death Penalty
Let me conclude my discussion of this criterion by highlighting one unequivocal advance in the administration of criminal justice attributable to the Charter, an advance that mitigates all pessimism and doubts about the importance and value of the Charter in our criminal justice system. Because of the Charter, the darkness cast on the criminal justice system by capital punishment has probably been lifted for good. As a result of the Burns and Rafay decision of the Supreme Court of Canada, albeit decided in the extradition context, it seems unlikely that Parliament could ever bring back the death penalty. Just as importantly, there no longer seems to be any sustained appetite in the public for the return of capital punishment. If I have this correct, this attitudinal progression can be understood as another manifestation of the migration of Charter values from the strict legal context to the broader society.
When I was preparing this paper I ran across
a quote from Martin Luther King, Jr.’s 1963 Letter from Birmingham Jail.
Reverend King wrote the letter in response to an open letter by eight white
Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.
The Canadian Charter of Rights and Freedoms is not a perfect document. As with all such documents it is a product of compromise and pragmatism. And certainly the courts have much work to do to fully avail themselves and the Canadian people of its potential and to implement and safeguard its content and purpose. In undertaking this work in the years to come, the courts should perhaps be guided by the words of Reverend King. They ought to think about the cost of singular errors given the interconnectedness of the criminal justice system: the cost of injustice everywhere and anywhere; to everyone and anyone.
* Justice of the Court of Appeal for
 Part I of the Constitution Act, 1982, being Schedule B to the
“Plea Bargaining: Directions for Canadian Reform” (1974) 52 Can. Bar Rev.
497, at 497, Gerard A. Ferguson and Darrell W. Roberts extrapolated from
regional studies that over 70 per cent of accused persons plead guilty before
trial. In the Provincial Division of the Ontario Court between January 1
and December 31, 1992, a guilty plea was entered to approximately 80 per
cent of the charges laid: Ontario, Report of the Attorney General’s Advisory
Committee on Charge Screening, Disclosure, and Resolution Discussions (Toronto:
Queen’s Printer, 1993), at 15 (Chair: G.A. Martin) [hereinafter the “Martin
Report”]. See also Ontario, Report of the Criminal Justice Review
Committee (Toronto: Queen’s Printer, 1999), at 56-57 (co-chairs: Justice
Hugh Locke, Senior Judge John D. Evans, and Murray Segal, Assistant Deputy
Attorney General, Criminal Law Divisions, Ontario Ministry of the Attorney
General) [hereinafter “Criminal Justice Committee”]. The Criminal
Justice Committee referred to statistics reported (but unpublished) by the
Ministry of the Attorney General, which indicated that historically 88 per
cent of cases were resolved by way of guilty pleas (58 per cent resolved
prior to the date of trial and 30 per cent resolved on the day of trial).
By 1998, 75.5 per cent of criminal cases in
 R.S.C. 1985, App. III [hereinafter “Bill of Rights”].
 See Joel Bakan et al., Canadian Constitutional Law, 3d ed. (Toronto: Emond Montgomery, 2003), at 677-81 for a brief discussion of the Supreme Court of Canada’s approach to the Bill of Rights. See also J.D. Whyte, “Civil Liberties and the Courts” (1976) 83 Queen’s Quarterly 655, reprinted in J.D. Whyte & W.R. Lederman, Canadian Constitutional Law: Cases Notes and Materials, 2d ed. (Toronto: Butterworths, 1977) 5-6, at 5-7–5-9.
 Earl Warren was Chief Justice of the U.S. Supreme Court from 1953 to 1969. During his tenure the court crafted a number of significant decisions to enhance the rights of criminal suspects, such as Gideon v. Wainwright, 372 U.S. 335 (1963) and Miranda v. Arizona, 384 U.S. 436 (1966), but there was a perception that these reforms weakened the police capacity to deal with crime effectively.
 R. v. Simmons,  O.J.
No. 3147, 11 C.C.C. (3d)
  S.C.J. No. 30, 18 C.C.C. (3d) 481 (S.C.C.) [hereinafter “Therens”].
 R. v. Chromiak,  S.C.J. No. 116, 49 C.C.C. (2d) 257 (S.C.C.); R. v. Brownridge,  S.C.J. No. 68, 7 C.C.C. (2d) 417 (S.C.C.).
 Therens, supra, note 8 at 495-502 C.C.C.
 See, e.g., R. v. Vaillancourt,  S.C.J. No. 83,  2 S.C.R. 636 (S.C.C.); R. v. Martineau,  S.C.J. No. 84,  2 S.C.R. 633, at para. 7 (S.C.C.); R. v. Stillman,  S.C.J. No. 34, 113 C.C.C. (3d) 321 (S.C.C.); and R. v. Feeney,  S.C.J. No. 49, 115 C.C.C. (3d) 129 (S.C.C.).
 Therens, supra, note 8, at 486, 488-89, 491, 512 C.C.C.
  S.C.J. No. 15,  1 S.C.R. 265 (S.C.C.).
 My law school career and my first six years of practice were completed before 1982.
 Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution, Commissioners’ Report, Findings and Recommendations 1989, vols. 1-7 (Halifax: Royal Commission on the Donald Marshall, Jr., Prosecution, 1989) (Chair: Justice T. Alexander Hickman) [hereinafter “Marshall Inquiry”].
 R. v. Oakes,  S.C.J. No. 7,  1 S.C.R. 103 (S.C.C.).
 R. v. Valente,  S.C.J. No. 77,  2 S.C.R. 673 (S.C.C.).
 This includes all matters under the Criminal Code, R.S.C. 1985, c. C-46, the Controlled Drugs and Substances Act, S.C. 1996, c. 19 and the Youth Criminal Justice Act, S.C. 2002, c. 1, as well as those under other federal statutes: Ontario Court of Justice, Annual Report 2005, online: <http://www.ontariocourts.ca/ocj/files/annualreport/ocj/2005-EN.pdf>, at 4 [hereinafter “Annual Report 2005”].
 From January 1, 2005 to December 31, 2005, the Ontario Court of Justice received over 550,000 criminal charges. Seventy-seven per cent of those charges were adult Criminal Code offences, 14.5 per cent were Youth Criminal Justice Act offences and 8.5 per cent were offences under federal statutes, predominantly under the Controlled Drugs and Substances Act: Annual Report 2005, id., at 46.
 This has been done by approximating if not replicating security of tenure, control of court lists and salaries levels of the superior courts.
 See R. v. Truscott,  O.J.
No. 3221, 226 O.A.C. 200,
at paras. 118-120 (Ont.
  S.C.J. No. 83,  3 S.C.R. 326 (S.C.C.) [hereinafter “Stinchcombe”].
 Marshall Inquiry, supra, note 16; Driskell Inquiry, supra, note 17.
 For example, the U.S. Code provides that the defence is entitled to disclosure of statements or reports of a government witness only after that witness has testified in chief at trial: see 18 U.S.C. § 3500.
 Charkaoui v.
 While s. 10(b) of the Charter has been interpreted as guaranteeing
a right to counsel of one’s choice and the right to be represented by that
counsel throughout the proceedings, this has generally been understood
as preventing the state from doing anything to interfere with the right
to counsel: see R. v. McCallen,  O.J.
No. 202, 131 C.C.C. (3d) 518
 See supra, note 30 and R. v. Rockwood,
 N.S.J. No. 217, 49 C.C.C. (3d)
 As authorized by R. v. Mann,  S.C.J. No. 49,  3 S.C.R. 59 (S.C.C.).
 R. v. Elias,  S.C.J. No. 37,  2 S.C.R. 3 (S.C.C.).
 See R. v. Greaves,  B.C.J. No. 1953, 189 C.C.C. (3d) 305 (B.C.C.A.), leave to appeal refused  S.C.C.A. No. 522 (S.C.C.) — 40-minute detention.
 Charkaoui, supra, note 29.
 See for example, ss. 486.1-486.5 of the Criminal Code, R.S.C. 1985, c. C-46.
 For example, through increased funding and commitment to the organizations associated with the Public Legal Education Association of Canada, which with limited resources provide superlative legal education services to the public.
 R.S.C. 1970, c. N-1.
 Re Writs of Assistance,  2 Ex. C.R. 645; Re Writs of Assistance,  F.C.J. No. 128, 34 C.C.C. (2d) 62 (F.C.T.D.).
 R.S.C. 1970, c. F-27, s. 37(1)(a).
 R.S.C. 1970, c. C-40, s. 145.
 A. Alan Borovoy, When Freedoms Collide: The Case for Our Civil Liberties (Toronto: T.H. Best Printing, 1988), at 94-95.
 R. v.
 Wong, id., at 50 S.C.R.
 But see R. v. Tanton,  B.C.J. No. 1200 (B.C.
 R. v. Tessling,  S.C.J. No. 63,  3 S.C.R. 432 (S.C.C.).
 The so-called automatic exclusionary rule for conscriptive evidence
like breath samples flows from the decision in R. v. Stillman,
 S.C.J. No. 34,  1 S.C.R. 607
(S.C.C.). However, there are signs that the automatic exclusionary rule
for non-discoverable conscriptive evidence may be under reconsideration,
particularly as the rule impacts outside the drinking and driving context,
for example, on admission of firearms obtained during investigatory detentions.
See, for example, R. v. Grant,  O.J.
No. 2179, 209 C.C.C. (3d) 250
 R. v. Askov,  S.C.J. No. 106,  2 S.C.R. 1199 (S.C.C.).
v. Morin,  S.C.J.
No. 25,  1 S.C.R. 771
(S.C.C.). Also see R. v. Allen,  O.J.
No. 3175, 1 C.R. (5th) 347
 Martin Report, supra, note 2, at 17.
 In 1995–1996, 5,266 adults were held in remand awaiting trial
or sentencing on any given day. By 2004–2005, that number had increased
to 9,640, an 83 per cent increase. In
 R. v. Smith,  S.C.J. No. 36,  1 S.C.R. 1045 (S.C.C.).
 Steele v. Mountain Institution,  S.C.J. No. 111,  2 S.C.R. 1385, at 1390-91 (S.C.C.).
 Most recently, the Supreme Court of Canada again considered the constitutionality of minimum punishments in R. v. Ferguson,  S.C.J. No. 6,  1 S.C.R. 96 (S.C.C.). The Court dismissed an appeal from the Alberta Court of Appeal ( A.J. No. 1150, 212 C.C.C. (3d) 161 (Alta. C.A.)) which had overturned the decision of the trial judge granting a constitutional exemption to a police officer from the four-year minimum punishment for manslaughter using a firearm. The Supreme Court held that the provision was not unconstitutional and all but shut the door to the availability of constitutional exemptions as a remedy for an alleged violation of the guarantee to protection against cruel and unusual punishment.
  S.C.J. No. 32,  1 S.C.R. 933 (S.C.C.).
 R.S.C. 1985, c. C-46.
 Martin Luther King, Jr., Letter from
Birmingham Jail, online: <http://www.stanford.edu/group/King/popular_requests/frequentdocs/birmingham.pdf>.
The letter from the
 Consider the failure to entrench property rights and rights to a basic standard of living.
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