THE LAWYERS WEEKLY
April 13, 2012 | 9
Moments of timidity
undermine strength of
Charter protections
The Charter of Right’s substantial impact on the criminal process has been a product of
moments of boldness on the part
of the Supreme Court of Canada.
After all, the Charter places
significant limits on the powers
of the state. It erects obstacles
in the way of police investigations, constrains the types of
criminal laws that legislatures
can enact, directs governments
to allocate sufficient resources
to the justice system so that
accused persons can be tried
within a reasonable time and,
where the repute of the administration of justice demands it,
requires that potentially probative evidence be excluded if it
was obtained in breach of the
accused’s Charter rights.
Nothing less than a bold and
principled court could carry off the
task of enforcing these commands.
VANESSA
MACDONNELL
But moments of timidity and
pragmatism co-exist alongside the
moments of boldness. At times,
the Supreme Court has appeared
uncomfortable with the very large
responsibility that the Charter has
placed upon it. In these moments,
it has acceded to arguments that
the Charter’s guarantees could not
possibly be as robust as they
appear. Departing from well-worn
paths of constitutional argument,
the court has arrived at outcomes
that require less of already
burdened state actors, but which
undermine the Charter’s most
basic protections of the accused.
After the Supreme Court’s s.
11(b) decision in R. v Askov, for
example, nearly 50,000 charges
were stayed in Ontario on the
grounds that the accused had not
been brought to trial within a
reasonable time. In its subse-
quent decision in R. v Morin, the
majority took notice of the dra-
matic surge in charges stayed and
tightened the requirements for
making out a s. 11(b) violation.
In forcing the accused, rather
than society, to bear the burden of
this underfunding, the court’s
pragmatism undermined the protective force of this guarantee.
Professor James Stribopoulos at
Osgoode Hall law school has identified a similar practice in the
court’s ancillary powers cases.
On the other hand, the court’s
recent decisions in R. v Harrison
and R. v Grant offer hope that it
will continue to demonstrate the
boldness of action that is required
of it by the Charter.
In Harrison, the court excluded
a large quantity of cocaine that
had been seized after the accused
was arbitrarily detained and
searched illegally. Relying on the
test for exclusion of evidence
developed in Grant, the court
concluded that, although the reli-
ability of the evidence favoured
admission, the seriousness of the
police conduct (including the offi-
cer’s “misleading testimony”) and
the impact of the breach on the
accused’s Charter rights required
that the evidence be excluded.
Notably, the fact that a large
quantity of drugs had been seized
was not determinative, the court
in Grant having concluded that
the seriousness of the offence was
a neutral factor.
Vanessa MacDonnell is a criminal and constitutional law
professor at the University of
New Brunswick.
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