1 Part I of the Constitution Act, 1982 being schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11.

2 The phrase is borrowed from Barak, Aharon, “The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and its Effect on Procedural and Substantive Criminal Law”, (1997) 31 Is. L.R. 3CrossRefGoogle Scholar.

3 Canadian Centre for Criminal Justice Statistics, (1996) 16(9) Juristat. In a recent sentencing case, the Supreme Court of Canada recognized that the rate of incarceration in Canada “has risen sharply in recent years” and that “[although the United States has by far the highest rate of incarceration among industrialized democracies, at over 600 inmates per 100,000 population, Canada's rate of approximately 130 inmates per 100,000 population places it second or third highest”. Gladue (1999) 133 C.C.C.(3d) 385 at 406 (S.C.C.). The case involved the interpretation of 1996 sentencing reforms designed to provide alternatives to imprisonment with special regard to the circumstances of Aboriginal people who, although they constitute only 3% of Canada's population, nevertheless constitute 12% of those imprisoned in federal prisons and the majority of those imprisoned in some provinces. Infra. There are some recent signs that prison growth may be levelling off, but this seems more related to the aging of the population than the effects of the Charter.

4 Section 1 of the Charter provides that the various rights in it (including the right to freedom of expression in sec. 2 of the Charter; the right to counsel in sec. 10(b) of the Charter; the right to be secure against unreasonable searches and seizures in sec. 8; the right against arbitrary detention and imprisonment in sec. 9 of the Charter; and the right to be presumed innocent in sec. 11(d) of the Charter) are guaranteed “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Section 1 has influenced developments in other countries including Israel and South Africa. See Feldman, Avignor, “The Right to a Fair Trial in Israel”, in Weissbrodt, D. and Wolfrum, R., The Right to a Fair Trial (Berlin, Springer, 1997)Google Scholar; Ziyad Motala, “Right to Fair Trial in South Africa Under the Interim Constitution”, in D. Weissbrodt and R. Wolfrum, ibid.; Weinrib, Lorraine, ”Canada's Constitutional Revolution: From Legislative to Constitutional State”, (1999) 33 Is. L.R. 13CrossRefGoogle Scholar.

5 See generally Roach, Kent, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice (Toronto, University of Toronto Press, 1999)CrossRefGoogle Scholar. In this book, I conclude that what Professor Sebba calls the “victims revolution“ has been as important, if not more important, than the due process revolution. Most of the Canadian developments in victims' policy have followed a punitive model of victims' rights. This model concentrates on the reform of criminal laws to make prosecutions easier; conflict between the rights of the accused and the rights of crime victims, including the equality rights of women and children; and the imposition of the criminal sanction through trials and sentencing. At the same time, there has also been interest in including victims and potential victims of crime in non-punitive measures such as crime prevention and restorative justice including Aboriginal justice, family conferencing and victim offender reconciliation programmes. My punitive model of victims' rights is similar to Professor Sebba's adversary-retributive model while my non-punitive model bears some resemblance to his social defence-welfare model. See Roach, “Four Models of the Criminal Process”, (1999) 89 J. Crim. L and Crim. 671CrossRefGoogle Scholar; Sebba, Leslie “The Victims' Role in the Penal Process: A Theoretical Orientation”, (1982) 30 Am. J. Comp L. 217CrossRefGoogle Scholar; Sebba, Leslie “Will the ‘Victim Revolution’ Trigger a Reorientation of the Criminal Justice System?”, (1997) 31 Is. L.R. 379CrossRefGoogle Scholar.

6 President Barak has noted occasional conflicts between “the dignity of the victim and the dignity of the accused. Such conflicts require an appropriate balance”, as quoted in Harnon, Eliahu “Plea Bargaining in Israel”, (1997) 31 Is. L.R. 245, at 267Google Scholar.

7 Parts of this and some subsequent sections are derived from K. Roach, supra n. 5, and Roach, K.Criminal Law (Concord, Irwin Law, 1996)Google Scholar.

8 The few due process initiatives that occurred such as bail reform, warrant requirements for electronic surveillance and the repeal of capital punishment were undertaken by Parliament, not the Supreme Court. In the 1980's, the Supreme Court and Parliament switched roles with the former taking the due process lead and Parliament being concerned with crime control and victims' rights, frequently in reaction to due process court decisions. The minimum constitutional standards of the Charter became the maximum and the test for new legislation in the criminal justice field was often whether it was “Charter-proof” and could be justified by the government under s. 1 of the Charter in subsequent cases. See generally Cohen, Stanley, “Law Reform, the Charter and the Future of Criminal Law”, in Cameron, Jamie, ed., The Charter's Impact on the Criminal Justice System (Toronto, Carswell, 1996)Google Scholar.

9 Wray [1970] 4 C.C.C. 1 at 17 (S.C.C.).

10 Ibid., at 13.

11 Marcoux (1976) 24 C.C.C.(2d) 1 (S.C.C.).

12 Re sec. 92(4) of Vehicles Act (Saskatchewan) (1958) 121 C.C.C. 321, at 331 (S.C.C.).

13 Katz, Lewis, “Reflections on Search and Seizure and Illegally Seized Evidence in Canada and the United States”, (1980) 3 Canada-United States L.J. 103, at 126Google Scholar.

14 Levitz v. Ryan (1972) 5 C.C.C.(2d) 417 at 420 (Ont.H.C).

15 Jumanga (1976) 29 C.C.C.(2d) 269 (S.C.C.).

16 Chromiak (1979) 49 C.C.C.(2d) 257 (S.C.C.)

17 Brownridge (1972) 7 C.C.C.(2d) 417 (S.C.C).

18 Hogan (1974) 18 C.C.C.(2d) 65 at 80 (S.C.C).

19 Edwards (1996) 104 C.C.C.(3d) 136 (S.C.C).

20 Mellenthin (1992) 76 C.C.C.(3d) 481 (S.C.C.); Belnavis (1997) 118 C.C.C.(3d) 405 (S.C.C.).

21 Dyment (1988) 45 C.C.C.(3d) 244 (S.C.C.); Dersch (1993) 85 C.C.C.(3d) 1 (S.C.C.). A person who abandons material such as a tissue with his or her DNA on it does not have a reasonable expectation of privacy over the material. Stillman (1997) 113 C.C.C.(3d) 321 (S.C.C.).

22 Criminal Code RSC 1985 c. C-34, sec. 256.

23 Criminal Code s.487.03-487.09. After a decision in which the Supreme Court criticized the police for taking dental impressions without a warrant or the suspect's consent (Stillman, supra n. 21), Parliament quickly enacted new provisions allowing warrants to be granted to allow the police to take body impressions. Criminal Code sec. 487.091.

24 See Casey Hill “The Role of Fault in Section 24(2) of the Charter”, in Jamie Cameron, supra n. 8, at 66-69. See also Roach, Kent and Friedland, M.L. “Borderline Justice: Policing in the Two Niagaras”, (1996) 23 Am J. Crim. L. 241, at 330–336Google Scholar, comparing warrant practices on the American and Canadian sides of Niagara Falls.

25 Duarte (1990) 53 C.C.C.(3d) 1 (S.C.C.).

26 Wong (1990) 60 C.C.C.(3d) 460 (S.C.C.).

27 At the same time, however, the Court admitted the unconstitutionally seized conversation because it was obtained in good faith reliance on an unconstitutional statute. Duarte, supra n. 25.

28 Criminal Code sec. 184.1-184.4.

29 Criminal Code sec. 487.01. This general warrant provision does not authorize searches that would invade the suspect's physical integrity. See generally Quigley, Tim, Procedure in Canadian Criminal Law (Toronto, Carswell, 1997) ch. 8Google Scholar.

30 Wise (1992) 70 C.C.C.(3d) 193 (S.C.C.).

31 Criminal Code sec. 492.1.

32 (1997) 115 C.C.C.(3d) 129.

33 Landry (1986) 25 C.C.C.(3d) 1 (S.C.C.).

34 Macooh (1993) 82 C.C.C.(3d) 481 (S.C.C.).

35 The Court left open whether there was an exigent circumstances exception to its new warrant requirement, but did indicate that the fact that a “dangerous person is on the loose and there is a risk that he or she will attempt to destroy evidence linking him or her to the crime” did not constitute exigent circumstances. Feeney (1997) 115 C.C.C.(3d) 129 at 159.

36 For more detailed descriptions of media and legislative reactions to the Court's search and seizure (and other) decisions see Kent Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice, supra n. 5, at ch. 2.

37 Criminal Code sec. 529.3 Exigent circumstances are defined in the legislation to include the need to prevent imminent bodily harm, death or the imminent loss or destruction of evidence. The new legislation also allows courts and police not to announce the entry of the police if there are reasonable grounds to believe that an announcement would expose the police or others to imminent bodily harm or death of result in the imminent loss or destruction of evidence. Ibid., sec. 529.4.

38 Cloutier v. Langlois (1990) 53 C.C.C.(3d) 257 (S.C.C.); Caslake (1998) 121 C.C.C.(3d) 97 (S.C.C.). The Court, however, drew the line at the rectal search of a person arrested for unpaid parking tickets and excluded drugs that were eventually retrieved. Greffe (1990) 55 C.C.C.(3d) 161 (S.C.C.).

39 Beare (1988) 45 C.C.C.(3d) 57 (S.C.C.).

40 Godoy (1999) 131 C.C.C.(3d) 129 (S.C.C.).

41 MacKinlay Transport (1990) 55 C.C.C.(3d) 530 (S.C.C.); Potash (1994) 115 D.L.R.(4th) 702 (S.C.C.). This has now been extended to reasonable searches by teachers of students at public schools. M(M.R.) (1999) 129 C.C.C.(3d) 361 (S.C.C.).

42 Mandel, Michael, The Charter of Rights and the Legalization of Politics in Canada (Toronto, Thompson, 1994) at 239–240Google Scholar.

43 Morales (1992) 77 C.C.C.(3d) 91 at 107.

44 Pearson (1992) 77 C.C.C.(3d) 124 (S.C.C.).

45 Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto, Queens Printer, 1995) at 113, 123Google Scholar.

46 Ibid. Manitoba, Aboriginal Justice Inquiry, supra, at 102.

47 Morales, supra n. 43, at 103.

48 Ibid., at 101.

49 Criminal Code sec. 515(10)(c).

50 On the dialogue between courts and legislatures under the Charter see Kent Roach “Institutional Choice, Co-operation and Struggle in the Age of the Charter”, in Jamie Cameron, supra n. 8; Hogg, Peter and Bushell, Allison “The Charter Dialogue Between Courts and Legislatures”, (1997) 35 Osgoode Hall L.J. 75Google Scholar.

51 (1990) 59 C.C.C.(3d) 449, at 474 (S.C.C.).

52 Ibid., at 490.

53 Baar, Carl, “Criminal Court Delay and the Charter: The Use and Misuse of Social Facts in Judicial Policy Making”, (1993) 72 Can. Bar R. 305Google Scholar. The statistics reported charges, not cases. Most accused faced multiple charges. Askov faced five and drunk driving cases, which accounted for over a quarter of all the charges withdrawn or stayed, resulted in dual charges even though the accused could only legally be convicted of one.

54 Code, Michael, Trial Within a Reasonable Time (Toronto, Carswell, 1992) 114Google Scholar.

55 Ontario, , Attorney General's Advisory Committee on Charge Screening Report (Toronto, Queens Printer, 1993) at 16Google Scholar.

56 Michael Mandel, supra n. 42, at 228.

57 Morin (1992) 71 C.C.C.(3d) 1, at 20.

58 L (W.K.) (1991) 64 C.C.C.(3d) 321 (S.C.C.). See Kent Roach, supra n. 5, at 201-2 describing a pre-charge delay counter-revolution in which courts consider historical charges stemming from allegations that the accused had sexually abused the complainant decades ago.

59 Attorney General's Advisory Committee on Charge Screening Report, supra n. 55, at 16.

60 Whyte (1988) 45 C.C.C.(3d) 97 (S.C.C.); Downey (1992) 72 C.C.C.(3d) 1 (S.C.C.). The Court has upheld a burden that an accused establish an insanity defence and a due diligence defence when charged with a regulatory offence. Chaulk (1990) 62 C.C.C.(3d) 193 (S.C.C.); Wholesale Travel (1991) 67 C.C.C.(3d) 1 (S.C.C.).

61 Ibid.

62 Daviault (1994) 93 C.C.C.(3d) 21 (S.C.C.); Stone (1999) 134 C.C.C.(3d) 353 (S.C.C.).

63 Paciocco, David, “The Judicial Repeal of Section 24(2) and the Development of the Canadian Exclusionary Rule”, (1990) 32 C.L.Q. 326Google Scholar; Paciocco, David, Getting Away With Murder (Toronto, Irwin Law, 1999) ch. 9Google Scholar.

64 Roach, Kent, “The Evolving Fair Trial Under Section 24(2) of the Charter”, (1996) 1 Can. Crim. L.R. 69Google Scholar; Roach, Kent, Constitutional Remedies in Canada (Aurora, Canada Law Book, 1994) ch. 10Google Scholar.

65 Two preliminary issues are who has standing to apply under s.24 for the exclusion of evidence and what is the scope of evidence obtained in a manner that violates the Charter. Courts have followed American authority with respect to the first issue and require that a person have personal standing. The accused thus cannot claim that evidence was obtained by even serious violations of the rights of a third party. Edwards (1996) 104 C.C.C.(3d) 136 (S.C.C.). On the second issue, courts have gone beyond American authority and considered evidence for exclusion even if there was not a causal connection between the violation and the obtaining of the evidence. The accused can thus claim evidence should be excluded because it was part of an investigative transaction tainted by a Charter violation. Strachan (1988) 46 C.C.C.(3d) 479 (S.C.C.). Canadian courts have not followed American courts in creating other exceptions to the exclusionary rule. For example, they do not generally allow the admission of evidence excluded under sec. 24(2) of the Charter for the limited purpose of impeaching the credibility of testimony by the accused. Cook (1998) 128 C.C.C.(3d) 1 (S.C.C.).

66 Black (1989) 50 C.C.C.(3d) 1 (S.C.C.).

67 Burlingham (1995) 97 C.C.C.(3d) 385 (S.C.C.).

68 See for example Lewis (1998) 122 C.C.C.(3d) 481 (Ont.C.A.); Ellrodt (1998) 56 C.R.R.(2d) 102 at 110 (B.C.C.A.). For criticism see Roach, K., “Here We Go Again: Reviving the Real Evidence Distinction under Section 24(2)”, (1999) 42 Crim. L.Q. 397Google Scholar.

69 In his dissent in M (M.R.), supra n. 41, at 395 (S.C.C.), Justice Major correctly indicated that unconstitutionally obtained drugs could be classified as conscriptive evidence if the accused was forced to help officials locate the evidence and the evidence would not have been inevitably discovered without the accused's assistance.

70 Tremblay (1987) 60 C.R.(3d) 59 (S.C.C.); Mohl (1989) 69 C.R.(3d) 399 (S.C.C.); Harper (1994) 92 C.C.C.(3d) 423 (S.C.C.).

71 Sieben (1987) 32 C.C.C.(3d) 574 (S.C.C.); Hamill (1987) 33 C.C.C.(3d) 110 (S.C.C.); Duarte, supra n. 25; Wong, supra n. 26; Thompson (1990) 59 C.C.C.(3d) 225 (S.C.C.); Generoux (1992) 70 C.C.C.(3d) 1 (S.C.C.); Grant (1993) 84 C.C.C.(3d) 173 (S.C.C.); Caslake, supra n. 38.

72 Collins (1987) 33 C.C.C.(3d) 1 (S.C.C.).

73 Genest (1988) 45 C.C.C.(3d) 385 (S.C.C.).

74 Greffe (1990) 55 C.C.C.(3d) 161 (S.C.C.).

75 Kokesch (1990) 61 C.C.C.(3d) 207 (S.C.C.).

76 Feeney, supra n. 35.

77 Dersch, supra n. 21.

78 Colarusso (1994) 87 C.C.C.(3d) 193 (S.C.C.).

79 Collins (1987) 33 C.C.C.(3d) 1. Thus, “the reasonable person is usually the average person in the community, but only when the community's current mood is reasonable”.

80 Many of these cases are discussed in K. Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice, supra n. 5, at chs. 3 and 4; and Roach, Criminal Law, supra n. 7, at chs. 4 and 5.

81 Don Stuart, , Charter Justice in Canadian Criminal Law (Toronto, Carswell, 2nd ed., 1996) at 107Google Scholar, suggests that 11 of 13 challenges in the Supreme Court have failed. In addition to Heywood discussed infra, the Court found that a provision allowing bail to be denied on the grounds of the “public interest” was excessively vague. See Morales, supra n. 43.

82 Nova Scotia Pharmaceutical (1992) 74 C.C.C.(3d) 289.

83 Canadian Pacific Ltd. (1995) 99 C.C.C.(3d) 97 (S.C.C.).

84 (1994) 94 C.C.C.(3d) 481.

85 Criminal Code sec. 161.

86 Budreo (1996) 104 C.C.C.(3d) 245 (Ont.Ct.(Gen.Div.)).

87 (1985) 23 C.C.C.(3d) 289 at 311.

88 Ibid., at 316. Before the Charter, the Court had indicated that in the absence of clear legislative intent to the contrary, it would interpret regulatory offences as offences of strict liability. Sault Ste. Marie (1978) 40 C.C.C.(2d) 353 (S.C.C.).

89 Goltz (1991) 67 C.C.C.(3d) 481 (S.C.C.). In another case, the Court did strike a mandatory minimum sentence of seven years imprisonment for importing narcotics as cruel and unusual punishment. Smith (1987) 34 C.C.C.(3d) 97 (S.C.C.).

90 Pontes (1995) 100 C.C.C.(3d) 353 (S.C.C.).

91 Nguyen (1990) 59 C.C.C.(3d) 161, at 168 (S.C.C.).

92 Criminal Code sec. 150.1(4).

93 M.(R.S.) (1991) 69 C.C.C.(3d) 223 (P.E.I.C.A.).

94 Wholesale Travel, supra n. 60.

95 A majority of the Court has held that when applying an objective negligence standard, personal characteristics of the accused are only relevant if they establish incapacity to appreciate the nature and quality of one's conduct or incapacity to appreciate the risk involved in one's conduct. Creighton (1993) 83 C.C.C.(3d) 346, at 384-385, per McLachlin J. This meant, for example, that a young parent's youth and limited education should not be considered in deciding whether she was guilty of denying her child the necessities of life. Naglik (1993) 83 C.C.C.(3d) 526 (S.C.C.). Four judges dissented and argued that the accused's personal characteristics should be factored into the objective standard to the extent that they indicate either enhanced or reduced foresight from that of a reasonable person.

96 DeSousa (1992) 76 C.C.C.(3d) 124.

97 Hundal (1993) 79 C.C.C.(3d) 97.

98 Gosset (1993) 83 C.C.C.(3d) 494; Finlay (1993) 83 C.C.C.(3d) 513.

99 Naglik, supra n. 95.

100 There is a growing consensus that there must be more than simple negligence but rather “‘a marked departure’ from the standard of a reasonable person” Creighton, supra n. 95, at 372 in order to convict a person of a criminal offence based on objective fault or negligence. This applies even if the offence seems to contemplate a lower standard of negligence such as carelessness because “the law does not lightly brand a person as a criminal”. Finlay, supra n. 98, at 521 (S.C.C.).

Section 7 of the Charter does not require that the fault element relate to all the prohibited circumstances or consequences of an offence. This means that proof of objective foresight of bodily harm (as opposed to death) is sufficient to convict a person of manslaughter. Four judges dissented in Creighton, supra n. 95, and argued that as a general principle, subject to certain exceptions, the fault element should relate to all the elements of the offence. Thus they would require objective foresight of death to convict a person of manslaughter.

101 Creighton, supra n. 95, at 354-355, per Lamer C.J. in dissent but not on this issue.

102 (1987) 39 C.C.C.(3d) 118 (S.C.C.).

103 (1990) 58 C.C.C.(3d) 353.

104 Criminal Code sec. 230.

105 The Canadian courts thus would find the much criticized decision of D.P.P. v. Smith [1961] A.C. 290 (H.L.) to be unconstitutional.

106 Logan (1990) 58 C.C.C.(3d) 391.

107 (1994) 88 C.C.C.(3d) 417 at 499-503 (S.C.C.).

108 See Kent Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice, supra n. 5, at 240-243.

109 Parliament recently imposed a mandatory minimum sentence of four years for using a firearm in the commission of several offences including robbery. Once again a due process decision left ample room for a crime control response by the legislature. Most Courts of Appeal have held that the new mandatory sentence does not constitute cruel and unusual punishment. See for example Wust (1998) 125 C.C.C.(3d) 43 (B.C.C.A.).

110 Martineau, supra n. 103, at 362. Justice L'Heureux-Dubé argued in dissent that the Court should not forget that victims were killed and not engage in “an egregious example of misplaced compassion” for offenders who were “already proven to be a ‘hijacker’, a ‘kidnapper’, a ‘rapist’, or an ‘arsonist’… willing to cause bodily harm to commit the offence”. She also pointed out that the American courts had upheld felony murder laws, at least when capital punishment was not imposed. Martineau, supra n. 103, at 386-387. Her views did not win the day but influenced the Court's subsequent decisions to uphold expansive crimes of felony first degree murder and unlawful act manslaughter.

111 Luxton (1990) 58 C.C.C.(3d) 449.

112 Canada has not executed an offender since 1962 and Parliament voted against the reinstatement of the death penalty in 1987. The Supreme Court has, however, held that the extradition of offenders to the United States to face the death penalty does not violate the Charter. Kindler (1991) 67 C.C.C.(3d) 1 (S.C.C.). See Roach, , “The Death Penalty and Wrongful Convictions”, (1998) 41 C.L.Q. 145Google Scholar.

113 See Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice supra n. 5, at 292-296.

114 The defence applies even if the accused has the mens rea for the offence. It applies and will result in a stay of proceedings when the police offer a person an opportunity to commit a crime without reasonable suspicion that the suspect is engaged in criminal activity or when they are not focusing their investigation in a high crime area. It also occurs if the police or an informer ever go beyond an opportunity for the commission of a crime and actually induce the commission of a crime in a manner that would make an average person commit the crime and would bring the administration of justice into disrepute. Mack (1988) 44 C.C.C.(3d) 513 (S.C.C.).

115 (1995) 79 C.C.C.(3d) 576 (S.C.C.) per Lamer C.J.

116 Both the Ontario and Quebec Courts of Appeal held that statutory restrictions of duress which require that the threats be of immediate death or bodily harm from a person who is present when the offence is committed violate sec. 7 of the Charter by allowing the conviction of the morally innocent who act in a normatively involuntary manner. Langlois (1993) 80 C.C.C.(3d) 28 (Que.C.A.); Reznic (1998) 128 C.C.C.(3d) 97 (Ont.C.A.). Striking down the statutory defence had the effect of reviving a more flexible common law defence. The Ontario Court of Appeal's decision was more limited because it did not strike the restrictive defence as it applied to a list of about 30 excluded offences including murder, sexual assault, hostage taking and arson.

117 [1920] A.C. 479 (H.L.).

118 Robinson (1996) 105 C.C.C.(3d) 97 (S.C.C.).

119 (1994) 93 C.C.C.(3d) 21 (S.C.C.).

120 See Kent Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice, supra n. 5, at 175-181.

121 Criminal Code sec. 33.1.(3).

122 Vickberg (1998) 16 C.R.(4th) 164 (B.C.S.C.). It should be noted, however, that the Supreme Court has been extremely reluctant to uphold violations of the principles of fundamental justice under sec. 1 of the Charter and that other countries, including Australia, New Zealand and South Africa, allow the defence of intoxication to all crimes.