CANADA'S EXPERIENCE WITH CONSTITUTIONALISM AND CRIMINAL JUSTICE

• Date: 01 December 2013
• Published date: 01 December 2013
• Author: Kent ROACH BA (Toronto), LLB (Toronto), LLM (Yale); Fellow of the Royal Society of Canada; Trudeau Fellow; Sometime Visiting Professor of Law, National University of Singapore; Professor of Law and Prichard-Wilson Chair in Law and Public Policy, University of Toronto.

This essay examines how the enactment of a constitutional bill of rights, the 1982 Canadian Charter of Rights and Freedoms (the Charter), has changed the Canadian criminal justice system. For example it has required the use of search warrants and right to counsel warnings at the pain of exclusion of evidence; mandated prosecutorial disclosure to the accused and has invalidated broad felony murder offences and restrictive intoxication and duress defences. Constitutionalism has affected both the procedure and substance of Canadian criminal law. At the same time, however, parts of the criminal justice system have not been restrained or improved by constitutionalism. They include a lack of universal recording of interrogations, a lack of mandatory identification procedures designed to minimise the risk of mis-identifications, decreased availability of bail, too easy acceptance of guilty pleas, and the increased use of mandatory sentences. The Legislature has often abdicated the law reform responsibilities to the Judiciary under the Charter and the Judiciary generally only responds to the worst abuses of power. Bills of rights enforced by the courts can play an important role in promoting constitutionalism, but they need to be supported by legislative reforms and civil society engagement including a free and critical press.

I. Introduction

1 Since the addition of the Canadian Charter of Rights and Freedoms1 (“Charter”) to Canada's constitution in 1982, criminal justice in Canada has become thoroughly constitutionalised. As demonstrated

throughout this essay, the Charter has significantly influenced all stages of the criminal process. At the threat of exclusion of evidence, police must now obtain judicial warrants before they search homes or seize bodily samples. Similarly, they must provide those detained or arrested with a form of Miranda2 warning about their right to consult a lawyer. Prosecutors must disclose all relevant and non-privileged evidence to the accused before trial. Judges must enforce both the procedural and substantive protections of the Charter. Reverse onuses and even evidential burdens must be justified by the Government as a proportionate limit on the presumption of innocence. The Supreme Court of Canada has invalidated murder offences that do not require proof that the accused had subjective knowledge that the victim was likely to die. It has also invalidated restrictions on the intoxication and duress defences. The court has struck down a mandatory minimum sentence of seven years' imprisonment for importing narcotics and held that it would now be unconstitutional to impose or extradite a fugitive to face the death penalty.

2 This impact of the Charter on criminal justice may strike some as inspiring, but it may also strike others as a warning sign of the unsettling effects of the genie of rights on criminal justice. There is some truth to arguments that Canada has gone farther than its southern neighbour the US in the constitutionalisation of criminal justice.3 An examination of the Canadian cases may suggest to some observers that Canadian courts have lost a sense of balance in reconciling the interests of the accused, society and victims.4 At the same time, those who look at Canada as an example of due process rights gone wild should appreciate that most Charter arguments made by the accused are rejected. The Canadian approach to constitutionalism and criminal justice balances competing interests. The courts have not only recognised the rights of the accused, but also the State's interests in crime control and the rights of victims and potential victims of crime.

3 The main argument in this essay is that the Canadian experience is more ambiguous than it may at first appear. Those who wish to reform their criminal justice system towards greater respect for constitutionalism should look to Canada not simply as a source of rights friendly precedents, but also as a warning of the difficulties of truly reforming criminal justice systems. Constitutionalism requires more

than a bill of rights enforced by the courts. It requires a wide-spread belief in the courts, government, civil society and the media about the need to justify the use of the criminal sanction, to reform the criminal law and to be restrained in its use. The decisions of courts are important, but as Herbert Packer recognised many years ago, they will wax and wane with the times.5 Moreover, judicial decisions that enforce due process rights of the accused will not restrain the State's expansion of the criminal sanction.6 Even though the Canadian courts have rejected strict dichotomies between procedural and substantive justice and have reformed some of the most draconian excesses of the substance of Canadian criminal law, the Canadian government today is determined to toughen the criminal justice system and to use the moral authority and outrage of victims of crimes as a substitute for evidencebased criminal justice policy-making.7 The Law Reform Commission has been abolished and there is little interest in the media and civil society about restraint and reform in the criminal justice system. Canada's criminal justice system remains constitutionalised in a formal sense, but the spirit of restrained and moderate constitutionalism is not healthy in Canada today.

II. Starting points and false starts

4 Context is critical to understanding comparative law. Canada had a criminal justice system that was subject to few constitutional constraints before the Charter. With the exception of involuntary confessions, Canadian courts accepted all improperly obtained evidence in a criminal trial until s 24(2) of the 1982 Charter mandated the exclusion of unconstitutionally obtained evidence if its admission would bring the administration of justice into disrepute. The Supreme Court of Canada refused to enforce the 1960 Canadian Bill of Rights, through the exclusion of evidence.8 The Canadian Bill of Rights was a statutory bill of rights that only applied to the federal government. Unlike the subsequent Charter, it could be amended by ordinary legislation and contained no enforcement provisions. Defence lawyers and civil liberties groups successfully lobbied for a mandatory rule in s 24(2) of the Charter that evidence shall be excluded if its admission would bring the administration of justice into disrepute.

5 The Charter with its emphasis on rights and remedies responded to a growing rights consciousness in Canadian society. Although supported by the vast majority at the time, Canada's invocation of martial law to respond to two terrorist kidnappings in Quebec in 1970 was soon viewed by many as an overreaction. It resulted in almost 500 innocent people being temporarily detained without access to prompt judicial review. Many Canadians were also concerned with press stories throughout the 1970s about police abuses, such as the strip searches of all the women found in a crowded bar in a 1974 drug raid using writs of assistance that had long been constitutionally prohibited in the US. There were also commissions of inquiry into illegal police behaviour, including the theft of documents and the destruction of property, in an attempt to respond to terrorist violence in Quebec.9 Canadians were familiar with Miranda rights and the exclusionary rule from American television and movies. Many Canadians were concerned that they did not have the same rights as their American neighbours. The generous approach of Canadian courts to interpreting the Charter in the late 1980s reflected a political culture that was receptive to rights claims and the criticisms that the courts had received for their restrictive approach to the earlier Canadian Bill of Rights.

III. Abolition of the death penalty

6 Although Canada resisted due process claims before the Charter, it repealed the death penalty. The last executions in Canada took place by hanging in 1962, a year after Parliament voted to restrict the use of the death penalty to planned and deliberate murder and the murder of police officers. In 1966, Parliament further restricted the death penalty to the killing of police officers. In 1976, Parliamentarians voted 131 to 124 to repeal the death penalty in a free vote. A few months later, the Supreme Court of Canada in a case commenced before the repeal unanimously decided that mandatory capital punishment for the murder of police officers was not arbitrary or excessive and did not violate the right against cruel and unusual punishment under the Canadian Bill of Rights. Chief Justice Laskin upheld the Canadian death penalty on the basis that it was available in a much narrower range of cases than in the US. He noted, however, that Parliament was free to repeal capital punishment.10 In 1987 another free vote on reinstating capital punishment was rejected in Parliament in a close

vote. Canadian political culture—not court decisions—effectively abolished the death penalty.11

IV. Quick starts under the Charter

7 The 1982 Charter contained many due process rights such as a s 8 right against unreasonable searches and seizures, a s 9 right against arbitrary detention and the rights under s 10 not only to retain a lawyer but to be informed of that right. These rights and the mandatory exclusionary rule in s 24(2) of the Charter were almost dropped from the Charter in an attempt to win the support of provincial governments for asking the UK Parliament to add the Charter to Canada's constitution. When the provincial governments did not consent to such proposals, these rights were added to the Charter after civil liberties and groups of defence lawyers successfully argued before a parliamentary committee that the Charter could not prevent rights abuses without them.12 The lesson here is that constitutionalism must be nurtured by civil society. This does not necessarily mean that there must be mass popular support. In Canada, a small number of well-informed and...