The entrenchment of Charter rights for accused in 1982 with effective remedies for breach has indeed had a revolutionary effect on the criminal justice system.
Our criminal justice system is no longer just about whether guilt has been proved. Courts also insist on maintaining fundamental Charter standards of fairness respecting policing, prosecution, trials, sentencing, and release from custody.
The judicial assertion of entrenched Charter standards since 1982 has constituted the only real check against the lure of law-and-order politics by politicians of all stripes and the consequent unremittingly legislative trend to toughen the criminal law. There are no votes in being soft on crime. Politicians fall over each other to be tough even though criminologists have made it very clear that toughening penalties in the United States and elsewhere has had no effect on reducing crime.
The Charter of Rights and Freedoms has helped ensure that we have a balanced criminal justice system of which Canadians can be proud. The Charter protects minority rights against the tyranny of the majority. This includes rights of those accused of crimes, which tend to be unpopular until the moment we ourselves get charged.
Especially through the work of the Supreme Court of Canada, important and minimum standards have been put in place. Accused cannot be punished without a finding of fault. This is even so for most provincial offences. An accused can no longer be sent to jail for life under constructive murder provisions under which a killing during the commission of certain listed crimes was automatically murder even though the killing was accidental or even by someone other than the accused. There is no evidence that this has affected the murder.
Can you imagine a minister of justice ever saying it would be just to be softer on murderers?
Our courts have put in place standards for police stop powers, searches including strip searches, entry, and arrest. In these areas, Parliament had not shown interest even though it was well known that civil liberties were being violated by routine overuse of strip searches. Charter applications have become a vehicle for courts to address racial profiling on which the governmental record is also one of denial and inaction.
The Supreme Court has made it clear that the death penalty would be unconstitutional in Canada. In this we are in step with other Western nations, except the United States. Even given overwhelming public pressure to be tough on suspected terrorists, the Supreme Court has recently insisted that the Charter requires that detention on immigration (security) certificates must be subject to fair processes of judicial review.
Some argue that the Charter has cluttered the courts with bogus claims and that the only focus must be on whether guilt has been proved. Good judges can be relied on to quickly dismiss any flimsy legal argument. Saying everything must be about proof of guilt would leave judges blind to the truth that sometimes police abuse their authority and must be held to account.
The key factor to be considered on the decision as to whether to exclude evidence found in violation of the Charter must remain that of the seriousness of the violation. If the focus were to be changed, as some argue, to the factors of reliability of the evidence and seriousness of the offence, protections to those charged with crimes so carefully put in place over these past 25 years would be seriously diminished. The police end would always justify the means.
Some say we should rely exclusively on civil suits and citizen complaints procedures. There is no evidence that such remedies are effective.
Some say there is little left to be decided under the Charter. Although some basic choices have been made by the courts there are still plenty of outstanding issues. The Charter is certainly no panacea. Sometimes the standards have been set too low. Hopefully the Charter will come into play when courts review such hot-button and new laws as reverse onus bail for gun crimes and the potentially unjust dragnet of minimum penalties.
The courts should use the Charter to force politicians to respond to the chronic under-funding of legal aid. Accused are increasingly unrepresented on serious charges. It is not clear why all the protections of the right to counsel only apply where the person being detained knows enough to assert them. It is time for our courts to declare that police should advise a suspect of the right to silence before interrogation at a police station.
Why should there be no right to have a lawyer present during an investigation, as is the case in other countries. Why is Canada the only jurisdiction in the Western world to declare it constitutional to apply rape shield protection equally where the prior sexual conduct was with the accused?
There are some dark clouds on the horizon for Charter thumpers given a growing tendency for some judges to do everything possible to avoid Charter review. Consider, for example, rulings by courts of appeal in Alberta and Nova Scotia that police officers using sniffer dogs to search passengers on buses are not searching such as to attract Charter protection. Explain that to the person whose body or luggage is being sniffed.
Those rulings are examples of a law-and-order bent among some judges. Our judges must be independent and try hard to be free of bias. They are also required by the Supreme Court to be guardians of the Charter. Hopefully, too, the new look Supreme Court will keep firm in its resolve to use the Charter to achieve a fairer balance.
Don Stuart is a criminal law professor at Queen’s University Faculty of Law who has written extensively on criminal law and Charter-related issues.