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January/February 1999 Northern Lights By Steven Skurka; Rachel E. Young Steven Skurka is a principal in the firm of Skurka & Pringle, Toronto, Ontario. He is a certified specialist in criminal litigation, a Director of the Criminal Lawyers Association and an executive member of the Criminal Justice Section of the Canadian Bar Associaton. The author of an acclaimed book on jury selection, his practice includes white-collar crime, child abuse, sexual assault and homicide. Rachel E. Young is a student-at-law and a former clerk with the Ontario Court of Appeal. A View From Canada It is an exciting time to be a criminal defense lawyer in Canada. Our formal constitution is very young and rights and liberties are still being defined daily. We advocates have a heavy responsibility, but also an inspiring challenge. This column will set out a useful summary of Canadian constitutional rights, with specific rights — such as security from unreasonable search and seizure — being discussed in future columns. The Canadian Charter of Rights and Freedoms,1 the Canadian constitutionally entrenched Bill of Rights, was proclaimed on April 17, 1982. This event is known as the “patriation” of the constitution because it was only on that date that the Canadian constitution ceased to be a British statute. This vestige of colonialism remained as late as the 1980s because politics prevented internal agreement on issues such as a formula to amend the constitution.2 Rights had been protected in Canada before the advent of the Charter, but not as completely or authoritatively. Criminal law had been within the federal government’s jurisdiction since confederation in 1867. Courts had traditionally used their powers to decide whether a law fell into a provincial or federal government’s jurisdiction to strike down laws which violated human rights, on the grounds that they were ultra vires, or outside the powers of the government which enacted the law.3 Laws could also be read in conformity with rights which existed in the body of Canadian common law, inherited from Britain through the former constitution which was “similar in principle” to the British constitution, and therefore encompassed values dating back to the Magna Carta. However, a statute would take precedence over common law if a restriction on liberty was unambiguously stated in a statute. In 1960, Canada took its first step toward enumerating written guarantees of personal liberty with the Canadian Bill of Rights.4 However, the Bill of Rights had a rather hollow history of ameliorating infringements of legal rights. The proclamation of the Charter meant that, finally, the rights it contained were to be protected unabashedly by the courts. Statutes would be subject to constitutional scrutiny, being struck down if they did not pass muster. Likewise, state action would have to be carried out in conformity with the Charter. In criminal law cases this meant that — for the first time — the police risked losing the use of evidence which they had obtained in a manner which violated constitutional rights. The human rights that are most important to the practice of a criminal lawyer are the “legal rights” set out in §§ 7 to 14 of the Charter. They will be described only briefly here. Section 7 of the Charter is a catch-all provision which encompasses the other legal rights, and supplements and completes them:
Section 8 protects against unreasonable search and seizure. Section 9 states that everyone has the right not to be arbitrarily detained or imprisoned. Section 10 sets out the rights of an individual upon arrest or detention: to be informed promptly of the reasons for the arrest or detention; to be told of his or her right to counsel and to retain and instruct counsel without delay; and to have the validity of his or her detention determined by way of habeas corpus and to be released if the detention is not lawful. These are all key to the daily practice of criminal law. Section 11 governs criminal proceedings from the time someone is charged, through trial, to the ultimate disposition. An accused person must be informed without unreasonable delay of the specific offense with which he or she has been charged. Everyone must be tried within a reasonable period of time. The Supreme Court’s rather strict interpretation of the right to trial within a reasonable time led to thousands of stays of proceedings in jurisdictions where the courts were backlogged.7 An accused person cannot be compelled to be a witness against him or herself. The presumption of innocence and the right to a fair and public hearing by an independent and impartial tribunal are also enshrined in this section. No one may be denied reasonable bail without just cause. An accused has the benefit of a trial by jury, in cases where the maximum punishment is five years or more (except in military cases). With the exception of war crimes, there must be no retroactive criminal law in Canada. Accused persons are protected against double jeopardy. Lastly, § 11 provides that if a person is found guilty of an offense and the punishment for the offense has been varied between the time of the commission of the offense and the time of sentencing, the accused receives the benefit of the lesser punishment. No Fifth Amendment Section 12 of the Charter protects citizens against cruel and unusual treatment or punishment. Fortunately, there is no capital punishment in Canada to test its application. Section 13 provides that a witness who testifies in any proceeding has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. There is, however, no equivalent to the U.S. Constitution’s Fifth Amendment. The last of the “legal rights,” § 14, states that a party or a witness in any proceeding who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. All of these rights are still being developed through the jurisprudence. Importantly, they are all qualified rights; none of them is absolute. This is made clear in the very first section of the Charter:
This means that once the party claiming that a law violates the Charter shows that that there is a violation (on a balance of probabilities), this does not end the inquiry. The onus then shifts to the government to show (also on a balance of probabilities) that the limitation of the right is justified under § 1 of the Charter. If the rights violation is justified, it stands. If not, the law is unconstitutional and of no force or effect.8 This approach means that the balancing of rights and competing public interests occurs explicitly in each judgment, “out inthe open,” as it were. There is also no need to distort the plain language of a provision to achieve the desired result. Another built-in balancing mechanism in the Charter is § 24(2). When a piece of evidence is found to have been obtained by the police in violation of a legal right such as the § 8 right against unreasonable search and seizure, the evidence is not automatically excluded. Instead, the court must turn to an analysis under § 24, the enforcement provision:
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Section 33, known as the “notwithstanding” clause, is a rarely used limitation on the supremacy of Charter rights. It allows a legislature, federal or provincial, to enact laws notwithstanding a provision included in § 2, and §§ 7 to 15 of the Charter.9 Use of this provision is politically risky and unpopular, as it positions politicians against the rights of the people. Section 33 contains internal controls, in that a legislature must re-enact a declaration under the section every five years. Therefore, in practice, politicians must go through the whole debate in each elected term. The Quebec sign law legislation is an example of the use of this provision. The Supreme Court of Canada found that a provincial law enacted to protect the French language by restricting the use of the English language on commercial signs was discriminatory.10 Therefore, the Quebec legislature used the notwithstanding clause to override the equality rights of the English-speaking minority in Quebec and preserve the sign law. The fact that all of the criminal law “legal rights” could be overridden is theoretically frightening; however, this eventuality is inconceivable in practice. Liberal, Generous Interpretation The Supreme Court of Canada, when given the weighty task of being the guardian of the Charter, resolved to take a “purposive approach” to the interpretation of the Charter.11 That is, the Charter would be given a liberal and generous interpretation. The Supreme Court would, following from existing tradition, interpret the Charter as a “living tree,” and not be bound by more static notions such as the “framers’ intent,” — even when the framing had taken place only a few years before. The power which this gave the courts over the work of the legislatures is still being severely criticized by some as anti-democratic. Political parties on the far right have made such views the mantra of their public platforms. Whatever their views, the reality is that the Charter continues to offer the protection of individual rights on an unprecedented scale in this country. The Charter is also being used as a model around the world, as for example with the new South African Constitution. Notes 1. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. 2. Canada has not been a British Colony since 1931. 3. For a famous example, see Roncarelli v. Duplessis, [1959] S.C.R. 121. 4. R.S.C. 1985, Appendix III. 5. Reference re s. 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486 at 545-46. 6. R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Stinchcombe, 1991] 3 S.C.R. 326; R. v. Swain, [1991] 1 S.C.R. 933. 7. R. v. Askov, [1990] 2 S.C.R. 1199. 8. The constitutional supremacy clause is found in § 52 of the Constitution Act, 1982, of which the Charter forms the first 34 sections. 9. Section 2 protects the fundamental freedoms of: conscience and religion; thought, belief, opinion and expression (including the media); peaceful assembly; and association. Section 15 is the equality provision which prohibits discrimination on various grounds such as race, religion, sex, and disability. 10. Ford v. Quebec (A.G.), [1988] 2 S.C.R. 712. 11. Hunter v. Southam, [1984] 2 S.C.R. 145. Reader participation is welcome. Please send your comments, questions, suggestions to: Northern Lights Steven Skurka Leslie Pringle 439 University Avenue Toronto Ontario Canada M5G 1Y8 Phone (416) 596-8192 Fax (416) 596-8449 | |||||||||
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National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
