LIFE, LIBERTY AND SECURITY
THE PERSON UNDER THE CHARTER
Law and Government Division
Revised 19 February 2000
BACKGROUND AND ANALYSIS
The Interpretation of an Entrenched Charter
Justice: Section 7
1. Scope of Application
General Application of Section 7 to Criminal Law
a. Mens Rea
d. The Right to Present Full Answer and
e. Right to Silence
f. Rules of Evidence
i. Pre-charge Delay
A. Bill C-49; An
Act to amend the Criminal Code (Sexual Assault), S.C. 1992, c. 38
B. Bill C-30;
An Act to amend the Criminal Code (Mental Disorder), S.C. 1991, c. 43
proclaimed in force 4 February 1992, except
Criminal Code sections 672.64 to 672.66, as
by section 4, and sections 5, 6, and 10(8)
C. Bill C-72; An
Act to amend the Criminal Code (Self-induced Intoxication), S.C. 1995,
D. Bill C-46; An
Act to amend the Criminal Code (Production of Records
Sexual Offence Proceedings), S.C. 1997, c. 30
LIFE, LIBERTY AND
THE PERSON UNDER THE CHARTER*
The Canadian Charter of Rights and Freedoms came
into force on 17 April 1982. The legal rights guaranteed by the Charter
are contained in sections 7 to 14. These sections deal with such matters
as the right to life, liberty and security; the right to be secure against
unreasonable search and seizure; the rights of an accused upon arrest;
the right of an accused to certain proceedings in criminal and penal matters;
and the right not to be subject to cruel and unusual punishment.
As there are now a great number of decided cases dealing
with these sections, this paper will concentrate on significant decisions
of the provincial courts of appeal and the Supreme Court of Canada, with
respect to section 7. Section 7 provides as follows:
7. Everyone has the right to life, liberty and security
of the person and the right not to be deprived thereof except in accordance
with the principles of fundamental justice.
BACKGROUND AND ANALYSIS
The Interpretation of an Entrenched Charter
When analyzing the decisions of the courts in section
7, it is important to remember that the Charter is entrenched within the
Constitution of Canada and that, by virtue of section 52(1) of the Constitution
Act, 1982, "the Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of the Constitution
is, to the extent of the inconsistency, of no force or effect."
It could be argued that two sections of the Charter illustrate
a conscious attempt by its framers to restrain the Canadian courts from
achieving the level of judicial activism prevalent in the United States
and to continue in some measure the Canadian tradition of parliamentary
supremacy. Section 1 allows legislatures to impose reasonable limits upon
rights and freedoms, while section 33 allows the legislatures expressly
to declare that a statute may operate notwithstanding certain sections
of the Charter.
In its decision in the Southam case, the Supreme
Court of Canada indicated that "the task of expounding a constitution
is crucially different from that of construing a statute." When considering
the application of the Charter, it is important to recognize that it is
a purposive document; that is, "its purpose is to guarantee and to
protect within the limits of reason, the enjoyment of the rights and freedoms
it enshrines. It is intended to constrain governmental action inconsistent
with those rights and freedoms; it is not in itself an authorization for
It is in this context of the contrast between the concepts
underlying the Charter and the American Bill of Rights that this paper
examines the legal rights protected by section 7. It comments on the possible
problems and issues that may arise from attempts to interpret and apply
section 7 and on recent court decisions showing the impact of the section
on the criminal justice system.
B. Fundamental Justice:
Section 7 presents two major problems to courts challenged
with giving full meaning to the Charter. First, there is the question
of what is included in "life, liberty and security of the person"
and, second, the question of what is meant by "principles of fundamental
As regards "life," laws that affect the beginning
of life or the end of life have been challenged. As regards "liberty,"
any law imposing a penalty of imprisonment could be affected, as could
such issues as prison discipline or security measures imposing extra confinement,
or parole or release procedures. For example, in Cunningham v.
Canada, the Supreme Court of Canada found that 1986 amendments
to the Parole Act allowing for the continued detention of prisoners
who would otherwise be eligible for release on mandatory supervision,
affected the liberty interests protected by section 7.
"Security of the person" could involve laws
that provide for medical or psychiatric treatment, sterilization or other
forms of intrusion by the state. For example, the Supreme Court of
Canada has held that section 7 protects the psychological integrity of
individuals and can be engaged in child protection proceedings. In New
Brunswick (Minister of Health and Community Services) v. G. (J.),
the Supreme Court found that state removal of a child from parental custody
"constitutes a serious interference with the psychological integrity
of the parent." Hence, section 7 guarantees the right to a fair hearing
in the determination of such custody matters. Failure to provide indigent
parents with counsel can violate section 7 of the Charter, in those
instances where representation is necessary for a fair hearing. The trial
judge must assess the need for representation by counsel, having regard
to the seriousness of the interests at stake, the complexity of proceedings,
and the capacities of the parent. The Court went on to find that the violation
of section 7 in that case was not saved by section 1 because "the
deleterious effects of the policy far outweigh the salutary effects of
any potential budgetary savings."
The Supreme Court of Canada has delivered judgment in
a number of influential decisions that have given meaning and shape to
the phrase "principles of fundamental justice." In Re B.C.
Motor Vehicle Act, the Court said that the phrase is not a protected
right but rather qualifies the protected right not to be deprived of "life,
liberty and security of the person"; that is, its function is to
set the parameters of that right. The Court refused to embark upon an
exhaustive analysis of the content of the phrase, ruling instead that
the "principles of fundamental justice are to be found in the basic
tenets and principles not only of our judicial process but also of the
other components of our legal system." In subsequent decisions, the
Court has held that in attempting to determine these basic tenets, one
must consider the impugned measure "against the applicable principles
and policies that have animated legislative and judicial practice in the
field." These practices, said the Court "have sought to achieve
... a just accommodation between the interests of the individual and those
of the state, both of which factors play a part in assessing whether a
particular law violates the principles of fundamental justice." It
is this balancing that the courts attempt in every Charter case.
In Thomson Newspapers Ltd., the Supreme Court
was of the view that section 8 of the Charter (the right to be secure
against unreasonable search or seizure) and section 14 (the right to an
interpreter during court or tribunal proceedings) represent attempts to
"address specific deprivations of the right to life,
liberty and security of the person in breach of the principles of fundamental
justice, and as such, violations of section 7." These sections, and
others, provide a guide or "invaluable key" to the meaning of
the phrase "principles of fundamental justice."
The Thomson case made the same reference as earlier
cases to specific provisions of the Charter as guides to meaning. It held
that section 11(c) (the right of any person charged with an offence not
to be compelled to be a witness in proceedings against himself or herself
in respect of that offence) and section 13 (the right against self-incrimination
or what is known as "the right to silence") throw light on the
meaning of this phrase. Therefore, the Court held that section 7 can be
used to "protect the individual from fundamental unfairness arising
out of self-incriminatory statements in circumstances not covered by sections
11(c) and section 13." Having said that, however, the Court did caution
that the principles of fundamental justice "vary with the context"
and that the rights guaranteed by sections 11(c) and 13, even with section
7 factored in, are not absolute; accordingly, although section 7 guarantees
a person the right to a fair hearing, "it does not entitle him to
the most favourable procedures that could possibly be imagined."
This was not an unprecedented position for the Court.
Rather than reflecting a willingness to dilute Charter protections, the
Court was saying, in essence, what it had said in 1988 in the Beare
case. There it had held that, like "other provisions of the Charter,
section 7 must be construed in light of the interests it was meant to
protect. It should be given a generous interpretation, but it is important
not to overshoot the actual purpose of the right in question."
In Rodriguez v. Attorney General of British
Columbia, the British Columbia Court of Appeal was called upon to
consider the scope of the "principles of fundamental justice"
that must be complied with in legislation that may deprive an individual
of life, liberty or security of the person. At issue in this case was
the validity of section 241 (b) of the Criminal Code, which
prohibits aiding or abetting suicide. The appellant, suffering from a
progressive and debilitating terminal illness, sought a declaration that
would allow a physician to assist her in taking her own life at some future
time when she would likely be unable to commit suicide without help.
The majority upheld the lower courts dismissal.
Distinguishing the Supreme Court of Canadas decision in Morgentaler,
Mr. Justice Hollinrake found that, because "there has been no legislative
recognition that a physician-assisted suicide is in line with contemporary
societal values," it cannot be claimed that being deprived of the
right to a physician-assisted suicide is not in accordance with the principles
of fundamental justice. In concurring reasons, Madam Justice Proudfoot
expressed the view that "the broad religious, ethical, moral and
social issues implicit in the merits of this case are not suited to resolution
by a court on affidavit evidence at the instance of a single individual."
Chief Justice McEachern dissented in the result, finding that the operation
of section 241 violated the appellants section 7 Charter
rights to liberty and security of the person, since "any provision
which imposes an indeterminate period of senseless physical and psychological
suffering upon someone who is shortly to die anyway cannot conform with
any principle of fundamental justice." Furthermore, the violation
could not be justified under section 1 since it did not satisfy the
test for minimal impairment. Rather than striking down section 241,
which offended section 7 of the Charter only in its operation upon
the appellant, the Chief Justice would have declared that, upon compliance
with conditions set out by the court, "neither the Appellant nor
any physician assisting her to attempt to commit, or to commit suicide,"
would commit any offence against the law of Canada.
On 30 September 1993, a five-four majority of the Supreme
Court of Canada dismissed Ms. Rodriguezs appeal, finding that section 241(b)
impinged on her right to security of the person guaranteed by section 7,
but not in a way violating any principle of fundamental justice. In dissenting
reasons, Madam Justice McLachlin argued that section 241(b) did offend
the principles of fundamental justice by depriving the appellant of the
right to deal with her own body as she chose. Furthermore, the law could
not be demonstrably justified under section 1, since an absolute
prohibition on assisted suicide is not necessary to protect the vulnerable;
existing provisions of the Criminal Code, along with a requirement
for a court order to permit assistance, would accomplish that. For his
part, Chief Justice Lamer would have declared section 241(b) invalid
because it infringed equality rights guaranteed under section 15(1)
of the Charter since it deprived those unable to end their lives without
assistance of the option of choosing suicide.
Section 7 is often used as a back-up clause by Charter
litigants since successive Supreme Court of Canada and lower court decisions
have interpreted it as supplementary protection, affording enhancement
to specific rights such as those protected by sections 8 and 11(c). As
such, Charter litigants plead it as an alternative to other sections of
the Charter. The Supreme Court of Canada has consistently taken the position
(as in the 1990 Thomson Newspapers Ltd. case) that "fairness
of the judicial process is what, in the end, fundamental justice is all
1. Scope of Application
In the Federal Court of Appeal decision in Operation
Dismantle there was an attempt to narrow the scope of this section.
Some judges stated that it did not confer any independent absolute right
to life or security of the person; Mr. Justice Pratte stated that it should
not be interpreted in a manner that would allow the courts to substitute
their opinions for those of Parliament and the Executive on purely political
questions. On appeal, the Supreme Court of Canada dismissed the appeal
brought by Operation Dismantle but held that the courts can review federal
Cabinet decisions to ensure that the Canadian government honours a general
duty to act in accordance with the dictates of the Charter. This decision
raises the dilemma that a Court may face in trying to avoid substituting
its own judgment for that of the Executive, while attempting to assess
whether government policy violates the Charter.
Despite this dilemma, it is clear that in appropriate
circumstances the Supreme Court of Canada is prepared to use section 7
to facilitate the right of the individual to challenge executive and governmental
decision-making. In the Nelles case, the Court held that a citizen
who had been injured by actions of a Crown prosecutor which were "maliciously
in fraud of his or her duties" could pursue a civil claim for damages
or seek a Charter remedy. This decision has done away with the centuries-old
tradition of absolute immunity for Attorneys General and their agents.
The Court held that a malicious prosecution would be one depriving an
individual of the right to liberty and security of the person in contravention
of the principles of fundamental justice.
In Kindler v. Canada (Minister of Justice)
and Reference re Ng Extradition (Canada), the Supreme Court
of Canada rendered judgments that showed considerable deference in applying
section 7 to decisions by the executive in the context of extradition.
The Minister of Justice had agreed to allow the extradition of individuals
who could face the death penalty in the United States, without first obtaining
assurances that the death penalty would not be imposed. The Court had
to decide whether the Ministers decision violated the rights of
these people under sections 7 and 12 of the Charter.
A 4 to 3 majority confirmed the position previously taken
by the Court in Canada v. Schmidt; in the case of extradition,
section 7 will be contravened where the penalty that may be imposed in
the requesting state sufficiently shocks the Canadian conscience. In assessing
the competing interests involved in an extradition, the Executive is likely
to be better informed than the courts. Therefore, "judicial intervention
must be limited to cases of real substance."
Because there is no consensus in Canada that capital
punishment is morally abhorrent, the Court concluded that it would not
be "absolutely unacceptable" to allow the extradition without
assurances. Furthermore, requiring the Minister to seek assurances that
the death penalty will not be demanded would give extra-territorial application
to the Charter; the comity of nations requires that Canada not steadfastly
insist that an extraditing nations law must conform to Canadian
law in every case.
In strong, dissenting reasons, however, three justices
held that the death penalty is per se a cruel and unusual punishment,
which, therefore, violates section 12 of the Charter. Two of the dissenting
judges held that, although the Charter can have no extraterritorial application,
an individual within Canada must benefit from the full application of
the Charter. All three of the dissenting judges concluded that the Minister
of Justice should have been required to obtain assurances before permitting
extradition in this case.
2. General Application of
Section 7 to Criminal Law
Shortly after the Charter was adopted, courts indicated
that they were not generally willing to apply section 7 broadly and thus
change the existing tenets of criminal law. For example, in the Balderstone
case the section was held not to affect the section of the Criminal
Code that authorizes the Attorney-General to indict an accused despite
his or her discharge on a preliminary inquiry.
Statutes imposing minimum sentences have been held not
to offend this section. In the Gustavson case, it was decided that
the dangerous offender sections of the Criminal Code did not violate
section 7 of the Charter; in later cases, however, the section was used
to review the incarceration of dangerous offenders.
a. Mens Rea or
One of the most important effects of the application
of section 7 to the criminal law has been the courts review of the
mental element (mens rea) required in some crimes, beginning with
the decision in Re B.C. Motor Vehicle Act. In this case, the Supreme
Court rejected the argument that sections 7 and 8 to 14 were only procedural
guarantees and found that some of these sections go further. In fact,
the Court applied section 7 to evaluate the substance of the legislation
in question. This meant that the courts now had the obligation to ensure
that the definition of a crime as prescribed by Parliament must not be
inconsistent with the principles of fundamental justice, in a case where
the crime carried the sanction of deprivation of life, liberty or security
of the person.
In Re B.C. Motor Vehicle Act, the Court considered
a provincial statute that made it an offence to drive with a suspended
licence, even though the person charged was unaware of the suspension;
the statute carried a possible sanction of imprisonment. The Supreme Court
held that absolute liability was contrary to the principles of fundamental
justice and, in combination with the possibility of imprisonment, violated
section 7 of the Charter. An accused facing imprisonment must have, at
a minimum, some degree of moral culpability, at least negligence coupled
with a presumption of liability. This would give the accused the defence
of due diligence.
In R. v. Vaillancourt, the Supreme Court
struck down section 213(d) (now section 230(d)) of the Criminal Code,
which defined murder as the commission of one of an enumerated series
of offences with a weapon that resulted in death. The definition of the
offence permitted an accused person to be convicted, even though there
had been no intention of using the weapon to kill; for example, where
a gun discharged accidentally resulted in a death. A majority of the Court
was of the opinion that the particularly high degree of moral blame that
murder carries in our society justifies the stigma and sentence attached
to a murder conviction. Section 7 therefore requires a mental awareness
of the particular nature of that crime. That mental element obtains where
a person means to cause death or to cause bodily harm and is reckless
of whether death ensues or not. The Court held, however, that it was not
necessary to take this position. Section 7 requires that, at a minimum,
the offence must envisage the objective foreseeability of death; that
is, a reasonable person, in committing the elements of the offence, would
have foreseen that the death of the victim was likely. The section in
question (213(d) of the Code) permitted a conviction for murder even where
a reasonable person would not have foreseen such a probability; therefore
the section was declared to be of no force or effect.
In R. v. Martineau, the Supreme Court declared
unconstitutional a murder offence similar to that struck down in Vaillancourt.
The provision of the Criminal Code in issue was section 213(a)
(now 230(a)), which provides for a conviction of murder where death ensues
after a person does bodily harm to another while committing an offence
or during flight after the offence. The Court confirmed as a matter of
law its opinion in Vaillancourt; a conviction for murder requires
proof beyond a reasonable doubt of subjective foresight of death.
Subjective foreseeability of consequences will not, however,
be required for all criminal offences. In DeSousa v. The Queen,
the Supreme Court of Canada considered the requisite mens rea for
the Criminal Code offence of "unlawfully" causing bodily
harm. The accused in that case had argued that the minimum mental element
required by section 7 of the Charter would necessitate an intention
to cause bodily harm.
The Supreme Court analyzed the mens rea called
for in section 269 and found that it has two aspects. First, there
must be an underlying offence, which may be prohibited by either federal
or provincial statute, with a constitutionally sufficient mental element
(absolute liability offences would be excluded as a matter of statutory
interpretation). In addition, the bodily harm caused by the "unlawful"
act must be objectively foreseeable. Finding that the offence was not
one of those few that, due to their stigma and penalty, "require
fault based on a subjective standard," the Court held that objective
foresight of bodily harm was sufficient mental element for section 269
to satisfy the dictates of section 7 of the Charter.
A unanimous Supreme Court of Canada subsequently found
that the mens rea for the offence of dangerous driving should
also be assessed objectively, but in the context of all the events surrounding
the incident. In R. v. Hundal, Mr. Justice Cory found that
section 249 of the Criminal Code requires an objective standard,
since "it would be a denial of common sense for a driver, whose conduct
was objectively dangerous, to be acquitted on the ground that he was not
thinking of his manner of driving at the time of the accident." In
order to convict, the trier of fact must be satisfied that the conduct
amounted to a marked departure from the standard of care that a reasonable
person would observe in the accuseds situation.
On 9 September 1993, the Supreme Court of Canada released
decisions in four cases that allowed objective foresight to ground liability
for manslaughter, failure to provide necessaries of life and careless
use and storage of firearms. In R. v. Creighton, the Court
considered a charge of "unlawful act manslaughter" brought against
an accused who had injected a woman with a quantity of cocaine that brought
about her death. The defence conceded that the injection constituted "trafficking"
within the definition of section 4 of the Narcotic Control Act,
but argued that the common law definition of the manslaughter offence
contravened section 7 of the Charter. A five to four majority of
the Court held that the test for the mens rea of unlawful act manslaughter
"is (in addition to mens rea of the underlying offence) objective
foreseeability of the risk of bodily harm which is neither trivial nor
transitory, in the context of a dangerous act." Foreseeability of
harm, rather than death, is appropriate to the lesser stigma associated
with the offence of manslaughter; furthermore, the absence of a minimum
sentence for manslaughter also preserves the principle that those causing
harm intentionally must be punished more severely than those causing harm
unintentionally. The Court found that the principles of fundamental justice
are satisfied where there is an element of mental fault or moral culpability
that is proportionate to the seriousness and consequences of the offence
charged. The four dissenting justices thought that the stigma attached
to a conviction for manslaughter was significant enough to require, "at
a minimum, objective foresight of the risk of death in order for the offence
to comply with section 7 of the Charter."
In R. v. Gosset, a police officer was charged
with unlawful act manslaughter in the death of a suspect resulting from
careless use of a firearm, contrary to section 86(2) of the Criminal
Code. Only three of eight justices would have required objective foresight
of the risk of death to ground a conviction for manslaughter. The Court
was unanimous, however, in holding that, in order to convict for the underlying
offence of "careless use" of a firearm, the jury need only find
that the accuseds use constituted a "marked departure from
the standard of care of a reasonably prudent person in the circumstances."
That finding was consistent with the Courts contemporaneous
ruling in R. v. Finlay concerning the offence of storing
firearms and ammunition "in a careless manner," contrary to
section 86(2) of the Criminal Code. The fault requirement
for that offence is also to be assessed objectively in order to punish
conduct that constitutes "a marked departure from the standard of
care of a reasonable person in the circumstances."
Finally, in R. v. Naglik, the Supreme Court
of Canada upheld an objective basis of liability under section 215
of the Criminal Code, which creates a duty to provide "necessaries
of life" for a child and punishes failure to do so. Finding that
the duty "would be meaningless if every individual defined its content
for him or herself according to his or her subjective beliefs and priorities,"
the Court agreed that the conduct of the accused should be measured against
an objective societal standard. Thus, section 215(2)(a)(ii) would
punish "a marked departure from the conduct of a reasonably prudent
parent in circumstances where it was objectively foreseeable that the
failure to provide the necessaries of life would lead to a risk of danger
to the life, or a risk of permanent endangerment to the health, of the
child." This meets the fault requirements of section 7 of the
Charter, since the absence of a minimum penalty allows for punishment
in proportion to the level of fault and any stigma incurred as a result
of conviction would not be "unfairly disproportionate nor unrelated
to the culpable conduct" of the accused.
The Supreme Court of Canada was divided with respect
to the nature of the objective test to be applied in all four of these
cases. The majority advocated an objective test that would not take into
account personal characteristics of the accused, except to show that he
or she lacked the capacity to appreciate the risk. In contrast, the Chief
Justice would measure the accuseds behaviour against the standard
of a reasonable person "constructed to account for the accuseds
particular capacities and resulting inability to perceive and address
certain risks." He argued that this was not a subjective test, since
the relevant characteristics that might excuse "must be traits which
the accused could not control or otherwise manage in the circumstances."
Citing as a principle of fundamental justice "that
a person should not be found guilty of a crime if he or she is morally
blameless," the Quebec Court of Appeal has declared the Criminal
Code defence of compulsion by threat (section 17) "inoperative"
because it is available only to an accused acting under threat of immediate
death or bodily harm from a person "present" at the time the
offence was committed. The accused in R. v. Langlois was
a penitentiary employee who, acting under threats of harm to his family,
received drugs and delivered them to an inmate; the person making the
threats was not present at the time of the offence. Because section 17
creates "a real risk of criminal conviction for normatively involuntary
acts" that should not incur the disapprobation of society, the court
held that section 17 did not accord with the principles of fundamental
justice. As a result of the courts declaration, the common law defence
of duress then became available to the accused, under section 8 of the
Criminal Code; this removed the requirement for the threats to
emanate from persons present at the scene of the crime.
The defence of intoxication has long been allowed at
common law, in recognition of the fact that alcohol affects "mental
processes and the formulation of intention," and that "persons
who lack the requisite mental element for a crime should not be found
guilty of committing that crime." However, Canadian jurisprudence
had limited the defence to "specific" intent offences (like
murder), where the practical effect would be conviction for a lesser "general"
intent offence (such as manslaughter). In general intent offences, including
assault or sexual assault, the Supreme Court had refused to allow the
defence and had even substituted the fact of self-induced intoxication
for proof of the mental element of the crime. As a result, the judicial
classification of offences into crimes of general or specific intent had
often been criticized as arbitrarily imposing an objective standard for
liability in so-called general intent offences.
In R. v. Daviault, the Supreme Court of
Canada revised the law to allow self-induced intoxication to be raised
as a defence to a sexual assault charge (a general intent offence), in
those "rare" cases where the level of intoxication is so severe
as to be "akin to automatism or insanity." A two-thirds majority
of the Court held that substituting self-induced intoxication for the
otherwise requisite proof of mens rea violated an accuseds
right to fundamental justice under section 7 of the Charter. Because a
conviction could result, despite a reasonable doubt as to an otherwise
essential element of the offence, the presumption of innocence protected
by section 11(d) of the Charter was also violated. However, because of
the nature of the evidence necessary to demonstrate the requisite level
of intoxication, the Court further held that "the accused should
be called upon to establish it on the balance of probabilities."
Furthermore, "[e]xpert evidence would be required to confirm that
the accused was probably in a state akin to automatism or insanity as
a result of his drinking."
Directing a new trial for the accused, the Supreme Court
of Canada expressed the view that its decision in Daviault would
affect the availability of the intoxication defence only in the rarest
of circumstances. However, considerable public concern was subsequently
raised by a handful of lower court decisions suggesting otherwise. In
response to that concern, Justice Minister Allan Rock introduced Bill
C-72, An Act to amend the Criminal Code (Self-induced intoxication)
on 24 February 1995.
Under the heading "Self-induced Intoxication,"
Bill C-72 added section 33.1 to the Criminal Code. This disallows
the intoxication defence in a case where an accused had departed "markedly"
from a prescribed standard of reasonable care by voluntarily or involuntarily
interfering or threatening to interfere with the bodily integrity of another
person "while in a state of self-induced intoxication that renders
the person unaware of, or incapable of consciously controlling, their
In R. v. Swain, the Supreme Court of Canada
considered whether the common law rule that permitted the Crown to raise
the issue of the accuseds insanity at trial, over the accuseds
objection, was constitutional in light of section 7. The primary issue
concerned a conflict between two of the principles of fundamental justice
upon the application of the common law rule. Permitting the Crown to raise
the issue of the accuseds insanity, which is a defence to a criminal
charge, conflicts with the principle that the accused alone is entitled
to conduct his or her defence. It may prevent the accused from raising
other defences with which the insanity plea is inconsistent. It also tends
to undermine the credibility of the accused, and may suggest to a jury
that the accused is the type of person who would commit the offence.
On the other hand, permitting the Crown to raise the
defence of insanity where the accused elects not to do so may uphold societys
interest in maintaining the fundamental principle that sanity is an essential
element of criminal responsibility. Otherwise, a person could be convicted
although he or she is incapable of having criminal intent.
A majority held that, because the purpose of the Charter
is primarily to uphold the rights of the individual against the state,
the accuseds right to conduct his or her defence takes precedence
over societys interest in upholding the principle that sanity is
an essential element to criminal responsibility. Thus, accused persons
decisions not to avail themselves of the insanity defence must be respected
by the Crown.
The accuseds right to conduct his or her defence
is not absolute, however. The Court then formulated a new common law rule
in light of the Charter; it defined the circumstances in which the Crown
may raise the issue of insanity where the accused has decided not to do
so. Where the accused attempted to show that he or she did not have the
criminal intent required for the crime, the Crown could not at that point
be precluded from raising the issue of insanity. Further, where an accused
had been found guilty and had not pleaded insanity, the Crown could then
raise the issue.
In Swain, the Supreme Court of Canada also considered
the constitutionality of the Criminal Code provision whereby a
person found not guilty by reason of insanity was to be committed immediately
into strict custody until the pleasure of the Lieutenant Governor was
known. A majority held that this provision violated section 7 of the Charter
because it denied such a person the procedural safeguard of a hearing
to determine whether he or she continued to be dangerous before being
deprived of liberty. The Court rejected the argument that the section
constituted a reasonable limit under section 1. Because it prescribed
committal for an indeterminate period, it did not meet the section 1 requirement
that, in order to be valid, a law should impair the section 7 right to
the minimum extent possible.
The majority also held that the provision violated section
9 of the Charter for similar reasons. The Court granted the legislature
a six-month transitional period during which the provision would remain
valid with the remedy of habeas corpus available if a hearing was
not held within a period of 30 to 60 days after the committal.
In response to the Swain case, in December 1991
Parliament enacted Bill C-30 to amend the mental disorder provisions of
the Criminal Code. The new law provides for establishment of provincial
review boards with responsibility for case-by-case decisions on the care
and detention of persons with mental disorders who have committed crimes.
The review board must make a disposition with respect to the care and
detention of an accused who has been found not criminally responsible
on account of mental disorder, within 45 days of the verdict. Where the
court has made an initial disposition (or in exceptional circumstances
as determined by the court) the delay for making a disposition can be
extended to 90 days.
Furthermore, any disposition, other than an absolute
discharge, must be reviewed annually and the "not criminally responsible"
(NCR) accused has the right to appeal his or her disposition to the Court
Those Bill C-30 amendments have since withstood challenge
on a number of Charter grounds. For example, in R. v. Winko,
the accused argued that the law imposes a reverse onus, by requiring an
NCR accused to prove that he or she does not pose "a significant
threat to the safety of the public." In response, the Supreme Court
of Canada found no violation of section 7 of the Charter because the legislation
"does not create a presumption of dangerousness and does not, in
its effect, impose a burden of proving lack of dangerousness on the NCR
accused." Furthermore, the Court also found that the legislation
is not impermissibly vague, since the phrase "significant threat
to the safety of the public" provides sufficient precision for legal
debate. Finally, the legislation is not overbroad, since a court or Review
Board that denies an absolute discharge must make an order that is "the
least onerous and least restrictive" to the accused.
d. The Right to
Present Full Answer and Defence
In R. v. Stinchcombe, the Supreme Court
of Canada characterized the right to make full answer and defence as a
common law right that "has acquired new vigour by virtue of its inclusion
in section 7 of the Canadian Charter of Rights and Freedoms as
one of the principles of fundamental justice." The accused in Stinchcombe
had sought disclosure of the content of statements taken from a Crown
witness following a preliminary inquiry; Crown counsel had refused, indicating
that the witness would not be called at trial because she was not worthy
of credit. Ordering production of the statements and a new trial, Mr.
Justice Sopinka held that an accuseds right to make full answer
and defence imposed a general duty to disclose all relevant information
to the defence, subject to the Crowns duty to respect the rules
of privilege and to protect the identity of informers. Furthermore, Crown
counsels discretion to withhold such information would be reviewable
by the trial judge.
The Supreme Court of Canada has since ruled, in R.
v. Liepert, that the right to disclosure protected by section 7
of the Charter will be subject to informer privilege; this rests with
the Crown and cannot be waived without the consent of the informer. The
privilege protects not only the identity of an informer but also any information
that might reveal that identity. It is subject only to the "innocence
at stake" exception which would allow a court to review the information
in question to determine whether disclosure was necessary to prove an
accuseds innocence. Should the court so find, only information essential
for such proof should be revealed and then only if the Crown has declined
the option of staying proceedings. In the result, the Supreme Court held
that the accused was not entitled to disclosure of information received
from an anonymous informer and recorded on a Crime Stoppers "tip
sheet." Furthermore, in this case the trial judge had been wrong
to order disclosure of the material after it had been edited; given the
anonymous nature of the tip, it was impossible to conclude whether the
disclosure of remaining details "might be sufficient to reveal the
identity of the informer to the accused and others who might have been
involved in this crime and seeking retribution."
In two decisions released on the same day, the Supreme
Court of Canada clarified the common law respecting an accuseds
right to the production of private records in sexual assault cases. In
A (L.L.) v. B. (A.), the Court refused to recognize a blanket
or "class privilege" for private medical and counselling
records in the hands of third parties, finding that such records may have
to be disclosed in order to allow a defendant to make full answer and
In the companion case of R. v. OConnor,
the Court set out the tests and procedure to be used to determine when
disclosure of private records will be necessary in a sexual assault trial.
A 5-4 majority of justices also said that therapeutic records already
in the hands of the Crown are no longer confidential and will be subject
to the usual disclosure obligations set out in Stinchcombe. The
Court went on to consider possible remedies for non-disclosure of private
records by the Crown, including the issue of when a stay of proceedings
would be appropriate. Deciding that any adverse impact on the appellants
ability to make full answer and defence could be remedied by a disclosure
order and adjournment, a 6-3 majority agreed that a stay of proceedings
was not necessary in the OConnor case.
Dealing with a related issue, the Ontario Court of Appeal
overturned a stay of proceedings granted to an accused who was unable
to have access to interview notes made by a social worker at a Sexual
Assault Crisis Centre. In R. v. Carosella, notes of the
complainants interview had been shredded pursuant to a general policy
decision taken by the Centre some time before the complainant had consented
to the production of the notes for review by the trial judge. While a
majority deplored the action taken by the Crisis Centre, the Court was
not persuaded that the accuseds right to make full answer and defence
had been compromised. Noting that the missing notes were not a written
statement by the complainant upon which she might have been cross-examined,
the Court was not prepared to uphold a stay of proceedings without evidence
of something more than a "mere risk" to a Charter right.
A five-to-four majority of the Supreme Court of Canada
disagreed with the Ontario Court of Appeal, however, and restored the
stay of proceedings granted by the trial judge, citing a breach of the
accuseds right to make full answer and defence protected by section
7 of the Charter. The majority expressed the view that no alternative
to a stay could cure the resulting prejudice to the accused. Furthermore,
failure to mitigate "the consequences of a deliberate destruction
of material in order to deprive the court and the accused of relevant
evidence would damage the image of the administration of justice."
In response to growing public concern about the disclosure
of personal records of sexual assault complainants, without adequate regard
for their Charter rights to privacy and equality, Bill C-46, An Act to
amend the Criminal Code (Production of Records in Sexual Offence Proceedings)
was introduced in the House of Commons on 12 June 1996. Bill C-46, which
came into force 12 May 1997, restricted access to the medical or therapeutic
records of complainants in sexual offence prosecutions and instituted
a two-stage process for their production. Much of the scheme implemented
by Bill C-46 was agreed to unanimously by all nine justices of the Supreme
Court in OConnor, including the requirements that applications
be made only to the trial judge and that the onus of proving relevance
rests with the defence. However, part of the new law also conflicts with
the majority approach in OConnor by subjecting confidential
records in the hands of the Crown to the same procedure for disclosure,
notwithstanding the decision in R. v. Stinchcombe.
Nevertheless, in R. v. Mills, the Supreme
Court of Canada subsequently upheld the legislative scheme, despite the
lone dissent of Chief Justice Lamer, who argued that records in the hands
of the Crown should not be subjected to the same process for production.
Because the decision in OConnor had not addressed the procedure
to be followed where third-party records are in the possession of the
Crown, absent an express waiver by the complainant, the majority held
that "[I]t was therefore open to Parliament to fill this void legislatively."
The Court went on to say that it is "constitutionally permissible"
for the Crown to have access to documents that the accused has not seen
"as long as the accused can make full answer and defence and the
trial is fundamentally fair."
The Supreme Court of Canada has since reviewed the Crowns
obligations and possible remedies for non-disclosure where evidence is
lost through "innocent inadvertence." In R. v. La,
the police lost an audiotape they had made of a complainant before the
criminal investigation was commenced. The Supreme Court of Canada held
that there is no breach of the duty to disclose if the Crown can persuade
the judge that the evidence has been neither deliberately destroyed nor
lost due to "unacceptable negligence." The disclosure obligation
does not exhaust the content of the right to make full answer and defence,
however; thus, the majority of the Court warned that an accused in such
a case may still be sufficiently prejudiced by the loss of relevant evidence
that a stay may be the only appropriate remedy.
In R. v. Dixon, the Supreme Court of Canada
has also set out the criteria for determining whether the Crowns
inadvertent failure to disclose relevant material has violated an accuseds
right to make full answer and defence. Finding that the accused must establish
such a violation on a balance of probabilities, the Supreme Court held
that the burden "is discharged where an accused demonstrates that
there is a reasonable possibility the non-disclosure affected the outcome
at trial or the overall fairness of the trial process." In such a
case, a new trial is the appropriate remedy. However, when considering
the overall fairness of the trial process, the court pointed out that
"defence counsels diligence in pursuing disclosure from the Crown" is an important factor that must
be taken into account.
In R. v. Durette, the Supreme Court of
Canada had occasion to consider an accuseds right to make full answer
and defence in the context of access to material filed in support of an
application for wiretap authorization. According to the majority decision,
the validity of an authorization, and hence the admissibility of wiretap
evidence, is "heavily dependent upon the contents" of affidavits
filed in support of the application. With reference to the disclosure
obligation discussed in Stinchcombe, Mr. Justice Sopinka concluded
that "when determining whether the contents of wiretap affidavits
should be disclosed to an accused, full disclosure should be the rule,
subject only to certain exceptions based upon overriding public interests
which may justify non-disclosure. The affidavits should only be edited
to the extent necessary to protect those overriding public interests."
In the Seaboyer and Gayme cases, the Supreme
Court of Canada considered whether section 276 of the Criminal Code,
the "rape-shield" law, violated sections 7 and 11(d) of the
Charter. Section 276 prohibited the use of evidence on the complainants
sexual activity with any person other than the accused, except in selected
circumstances as set out in the section. The law was held to infringe
section 7 because the blanket exclusion of all such evidence, not coming
within the three exceptions provided, could result in the exclusion of
relevant evidence essential to the presentation of a legitimate defence.
By denying the accused the opportunity to present such evidence, he or
she could be deprived of a fair trial, in violation of section 11(d).
The Court held that striking down section 276 would not
revive the old common law view of the relevance of sexual conduct evidence.
Evidence of sexual conduct and reputation cannot today be regarded as
relevant either to the issue of the complainants credibility or
to that of consent. It will be admissible only in exceptional circumstances,
where it is tendered for a legitimate purpose and logically supports a
defence, and where its relevance is not outweighed by its prejudicial
effect on the trial process.
On 12 December 1991, Bill C-49, containing amendments
to the Criminal Code to replace section 276, received first reading
in Parliament. (It received Royal Assent on 23 June 1992). The new
law renders inadmissible any evidence of a complainants sexual activity
other than that which forms the subject matter of the charge, except by
application to the judge, who will determine admissibility on the basis
of criteria provided. Such evidence is not admissible "to support
an inference that, by reason of the sexual nature of that activity,"
a complainant is more likely to have consented to the act complained of,
or is less worthy of belief.
Finally, the Supreme Court of Canada has also considered
an accuseds right to make full answer and defence in the context
of sections 651(3) and (4) of the Criminal Code giving the Crown
the right to address the jury last if the accused calls any witnesses
in his or her defence. In R. v. Rose, a 5-4 majority of
the Court found that, even if there is a perceived tactical advantage
in addressing the jury last in a particular case, the procedure set out
in section 651 does not interfere with an accuseds right to make
full answer and defence. In support of that finding, the majority expressed
the view that it is the duty of the trial judge to remedy any unfairness
that could result from an improper address by the Crown.
e. Right to Silence
The right to silence is a basic tenet of the Canadian
legal system and, as such, falls within the ambit of section 7. An accused
person has the right to remain silent during an investigation and at a
trial. In R. v. Hébert, the Supreme Court held that an accuseds
right to silence had been infringed; the accused, while being detained,
had made incriminating statements to a police officer posing as an arrested
suspect. The accused, after consulting counsel, had indicated that he
did not wish to make a statement. The Court held that the accuseds
right to silence prior to trial arises by analogy with other legal rules
against self-incrimination and is also related to a concern with maintaining
the reputation and integrity of the judicial process. The detained accused
has the fundamental right to choose whether to speak to the authorities
or to remain silent. Under section 7, the state is not entitled to use
its superior power to override the suspects will and negate his
choice. In this case, the police had violated the accuseds choice
to remain silent by using a trick to negate his decision.
In R. v. Broyles, the Supreme Court of
Canada reiterated the accuseds right to silence guaranteed by section
7, including the right to choose whether or not to make a statement to
authorities. At the request of police, a friend wearing a recording device
had visited the accused in detention. The Court held that Mr. Broyless
right to silence had been violated because the statement he made at that
time was not voluntary. It had been elicited by an "agent of the
state" attempting to exploit the appellants trust so as to
undermine his confidence in his lawyers advice to remain silent.
This violation of section 7 could not be justified under section 1 since
the police action was neither authorized by statute nor the result of
a common law rule. Finding that the statement should not have been admitted,
the Court overturned the conviction and ordered a new trial.
In R. v. Liew, however, the Supreme Court
later clarified that the use of statements volunteered by a suspect
to an agent of the state will not infringe his or her right to silence.
In the result, the Court ruled that the use of evidence obtained by an
undercover police officer during a cell block conversation would not infringe
the accuseds section 7 right to silence because the officer "did
not direct the conversation in any manner that prompted, coaxed or cajoled
the appellant to respond."
The right to silence was also re-affirmed in the Chambers
case, where Mr. Justice Cory ordered a new trial largely on the basis
of the infringement of this right. He said that it had been quite improper
and highly prejudicial for Crown counsel to cross-examine the accused
about his silence in response to police questioning during their investigation
of a drug case. The Court followed a line of authorities affirming that
there is a right to silence that can properly be exercised by an accused
person in the investigative stages of proceedings.
The right to silence protected by section 7 also extends
to an accused who fails to give evidence on his or her behalf at trial.
In R. v. Noble, a majority of the Supreme Court of Canada
confirmed the Court of Appeals order for a new trial, where the
trial judge had erred by relying, at least in part, upon the accuseds
failure to testify in order to find guilt beyond a reasonable doubt.
The Supreme Court of Canada has also said, however, that
an accused person implicated by the testimony of a co-accused may refer
to the pre-trial silence of the latter in order to cast doubt on his or
her credibility. The majority decision in R. v. Crawford;
R. v. Creighton acknowledged that the section 7 rights of
two co-accused will compete where one "asserts his right to silence
and that its exercise not be used against him to his prejudice, while
the other contends that he has the right to make full use of the pre-trial
silence of his co-accused in order to make full answer and defence."
In striking a balance between the two, the Court held that the jury in
such a case should be advised that pre-trial silence may be cited to attack
the credibility of a co-accused but not used as possible evidence of innocence
or guilt. Furthermore, pre-trial silence must not be given any weight
if the jury is satisfied it was due to a factor that did not reflect on
the credibility of the accused, such as a police caution or advice of
The Supreme Court of Canada has also considered the section
7 right to silence as it may apply to witnesses at criminal trials who
are also suspects or separately charged co-accused. In R. v. S.
(R.J.), a majority of the Court agreed that courts have the discretion
to quash a subpoena, where the general rule of compellability would be
unfairly prejudicial to such a witness. A differently constituted majority
also found that section 7 provides for a partial "derivative use-immunity"
whereby evidence derived from compelled testimony may be excluded in later
proceedings against the witness. This limit is in addition to the evidentiary
immunity provided by section 13 of the Charter. The Supreme Court of Canada
subsequently reviewed the compellability of suspects and separately charged
co-accused at preliminary inquiries in R. v. Jobin and R.
v. Primeau, and applied the principles elucidated in R.
v. S. (R.J.), in the context of regulatory proceedings in B.C.
Securities Commission v. Branch.
The Supreme Court has since made it clear, however, that
"the principle against self-incrimination... does not require the
appellant to be provided with immunity against the use of statutorily
compelled information" in subsequent regulatory proceedings. Specifically,
the court held that section 7 "should not be understood to elevate
all records produced under statutory compulsion to the status of compelled
testimony at a criminal or investigative hearing." In R. v.
Fitzpatrick, the Court considered the admissibility of "hail
reports" and daily fishing logs in a regulatory prosecution for overfishing
under the Fisheries Act. The Act required all fishers to provide
records of their daily catch to officials from the Department of Fisheries
and Oceans for use in managing the commercial fishery by monitoring fish
stocks and adjusting quotas. In a unanimous decision of the Court, Mr.
Justice La Forest undertook a contextual analysis of the question and
concluded that the principle against self-incrimination had not been "engaged"
since there had been no adversarial or inquisitorial relationship between
the accused and the state at the time the information had been statutorily
compelled. Furthermore, the information could said to be "coerced"
only to the extent that it was a condition of participating in a regulated
The British Columbia Court of Appeal
has since made a distinction between the fishing logs referred to in Fitzpatrick
and statutorily compelled accident reports mandated by the British Columbia
Motor Vehicles Act. The majority decision in R. v. White
found that the admission of such a report in the trial of a criminal charge
would offend section 7 of the Charter. Relying on the reasoning of the
Supreme Court of Canada in Thomson Newspapers Ltd. v. Canada
(Director of Investigation and Research, Restrictive Trade Practices
Commission), the court held that section 7 and section 24(1) of the
Charter can be employed to exclude evidence in such a case. The
decision in R. v. White was affirmed by a 6-1 majority of
the Supreme Court of Canada on 10 June 1999.
In R. v. Jones, the Supreme Court of Canada
considered the right to silence protection afforded by section 7, in the
context of the sentencing process. Mr. Jones had argued that psychiatric
evidence obtained during a fitness assessment should be inadmissible in
dangerous offender proceedings against him. A five-four majority of the
Court rejected his appeal on the ground that section 7 has a more limited
scope when applied to the sentencing .stage, which "places a stronger
emphasis on societal interests and more narrowly defines the procedural
protection accorded to the offender." In support of his dissenting
opinion, Chief Justice Lamer noted that subsequent 1991 Criminal Code
amendments dealing with "mental disorder" had clearly rendered
such evidence inadmissible in dangerous offender proceedings.
f. Rules of Evidence
In R. v. Laramee, the Manitoba Court of
Appeal held that certain common law rules of evidence are also principles
of fundamental justice and failure to observe them can amount to a denial
of section 7 rights. The case concerned the validity of section 715.1
of the Criminal Code, which authorizes the use of the videotaped
statements of young complainants in sexual assault trials. Mr. Justice
Twaddle found the provision to be at odds with the "best evidence"
rule, while Madam Justice Helper argued that it offended the rule prohibiting
evidence of previous consistent statements, in violation of both sections
7 and 11(d) of the Charter. All agreed, however, that section 715.1 could
not be saved as a reasonable limit under section 1 of the Charter of
Rights and Freedoms. Although protecting young complainants from the
trauma of testifying in open court was a sufficiently pressing objective
to warrant overriding a Charter right, the proportionality test was not
met. The legislation could not achieve the desired goal since the complainant
would still be required to adopt the evidence in court and to submit to
cross-examination. Madam Justice Helper also found that the section was
over broad; not all young victims would require the protection of section
715.1 and the resulting unfairness of the legislation far outweighed "the
objective it was designed to meet."
On 15 June 1993, the Supreme Court of Canada reversed
the finding of the Manitoba Court of Appeal, holding that section 715.1
of the Criminal Code does not limit the rights guaranteed by section 7
of the Charter. The decision in R. v. L. (D.O.) was given
orally from the bench. In reasons for judgment, rendered 18 November
1993, the Court did not accept that section 715.1 offended rules
of evidence against the admission of hearsay or prior consistent statements.
Moreover, the majority found that "the incorporation of judicial
discretion into section 715.1, which permits a trial judge to edit
or refuse to admit videotaped evidence where its prejudicial effect outweighs
its probative value, ensures that section 715.1 is consistent with
fundamental principles of justice and the right to a fair trial protected
by sections 7 and 11(d) of the Charter."
In the related case of R. v. Levogiannis,
heard and decided on the same day, the Supreme Court of Canada affirmed
the constitutional validity of section 486(2.1) of the Criminal
Code. That provision allows young complainants in sexual assault trials
to testify behind a screen, or outside the court room via closed-circuit
television, where the judge finds that blocking a complainants view
of the accused is "necessary to obtain a full and candid account
of the acts complained of from the complainant." The Court held that
the absence of face-to-face confrontation between the accused and the
complainant does not infringe any principle of fundamental justice, since
the accused has no absolute right to be in the sight of witnesses testifying
against him. Furthermore, "the fact that the complainants giving
of evidence may be facilitated by the use of a screening device in no
way restricts or impairs an accuseds ability to cross-examine the
complainant." Thus, section 486(2.1) does not violate section 7
of the Charter.
Rules of evidence were also cited in the striking down
of section 198(1)(d) of the Criminal Code whereby evidence that
a person had been convicted of keeping a disorderly house was, "in
the absence of any evidence to the contrary," proof that the house
was a "disorderly house" for the purpose of proceedings against
anyone alleged to have been "an inmate" or to have been "found"
in such a place at the same time. In R. v. Janoff, the Quebec
Court of Appeal held that section 198(1)(d) offended sections 7 and 11(d)
of the Charter, on the grounds that the resulting presumption conflicted
with rules of evidence respecting hearsay and opinion evidence and relevance.
The Court found that those rules constitute "precepts of fundamental
justice which ensure a fair trial." In the absence of evidence to
meet the "proportionality" test established in R. v.
Oakes, the legislation could not be justified under section 1 of
the Charter and was declared to be of no force or effect.
In the Nova Scotia Pharmaceutical Society case,
the Supreme Court of Canada confirmed that the doctrine of vagueness is
also included among the principles of fundamental justice. That is, section
7 could be offended by a limit on life, liberty and security of the person
not otherwise objectionable "but for the vagueness of the impugned
law." Writing for a unanimous court, Mr. Justice Gonthier held that
the law must be sufficiently precise as to give citizens fair notice "that
certain conduct is the subject of legal restrictions." Furthermore,
because enforcement discretion must be limited, "a law must not be
so devoid of precision in its content that a conviction will automatically
flow from the decision to prosecute."
In determining whether a law is too vague, the Court
would consider (a) the need for flexibility and the interpretive role
of the courts, (b) the impossibility of achieving absolute certainty and
(c) the possibility of varying judicial interpretations. Suggesting a
fairly high threshold, the Court went on to warn that "one must be
wary of using the doctrine of vagueness to prevent or impede State action
in furtherance of valid social objective, by requiring the law to achieve
a degree of precision to which the subject matter does not lend itself."
In this case, the Supreme Court of Canada ultimately
upheld that section of the Combines Investigation Act (now found
in the Competition Act) that made it an offence to conspire, combine,
agree or arrange with another, to prevent or lessen competition "unduly."
After examining prior judicial interpretations, the public policy interest
served and the content of the inquiry mandated by the impugned provision,
the Court found that Parliament had "sufficiently delineated the
area of risk and the terms of debate to meet the constitutional standard."
In R. v. Heywood, a majority of the Supreme
Court of Canada held that legislation can offend section 7 of the Charter
if it "infringes life, liberty or security of the person in a manner
that is unnecessarily broad, going beyond what is needed to accomplish
the governmental objective." The accused in Heywood had been
tried and convicted of "vagrancy" under section 179(1)(b) of
the Criminal Code, which made it a crime for anyone convicted of
specifically enumerated sexual offences to be "found loitering in
or near a school ground, playground, public park or bathing area."
Because the offence applied "without prior notice to the accused,
to too many places, to too many people, for an indefinite period with
no possibility of review," the Court found the resulting limitation
on liberty to be "much broader than necessary to accomplish its laudable
objective of protecting children from becoming victims of sexual offences."
Mr. Justice Cory then pointed to newly enacted section 161 of the Criminal
Code as "a good example of legislation which is much more carefully
and narrowly fashioned to achieve the same objective" because it
requires a court order, provides for both notice and review and applies
only to those convicted of offences involving persons under 14. Finally,
agreeing for the same reasons that section 179(1)(b) was overly broad,
the majority of the Court found that the section failed the minimal impairment
branch of the analysis and could not be justified under section 1.
In W.K.L. v. R., the Supreme Court of Canada
held that the right to a fair trial pursuant to sections 7 and 11(d) was
not violated by a lengthy delay in laying a charge in a sexual abuse case.
The Court took judicial notice of the fact that delays in reporting sexual
abuse are common; it held that victims should not be required to report
incidents before they are psychologically prepared for the consequences
of doing so.
However, the Supreme Court of Canada has since upheld
a stay of proceedings against an accused for a murder allegedly committed
31 years before charges were finally filed. In R. v. MacDonnell,
neither the treating physician nor the medical examiner, both of whom
had testified at an inquest held at the time of the death, were available
to testify. In addition, transcripts of their evidence were no longer
available. Because the inquest results had concluded that death was accidental,
the trial judge held that the missing medical evidence "would have
been both helpful and important to the accused in presenting her defence."
As a result, MacDonald, J. found that the accuseds rights under
section 7 and 11(d) of the Charter had been violated and that she was
entitled to a stay of proceedings pursuant to section 24(1). Although
the Nova Scotia Court of Appeal set aside the stay, the Supreme Court
agreed with the trial judges finding that "in the circumstances
there was a breach of the appellants right to make full answer and
defence" and that "this was one of those clearest of cases in
which to order a stay of proceedings."
A. Bill C-49; An Act
to amend the Criminal Code (Sexual Assault), S.C. 1992, c. 38
Bill C-49 replaced the former Criminal Code section
276 with new procedures and criteria for determining the admissibility
of evidence concerning a complainants sexual conduct. Additional
provisions also define consent for the purposes of sexual assault and
limit or remove the defences of consent and mistaken belief in consent
in certain circumstances.
B. Bill C-30;
An Act to amend the Criminal Code (Mental Disorder), S.C. 1991, c. 43,
proclaimed in force 4 February 1992, except
Criminal Code sections 672.64 to 672.66,
as enacted by section 4, and sections 5,
6, and 10(8)
This bill amended the Criminal Code by replacing
the verdict of not guilty by reason of insanity with the verdict "not
criminally responsible on account of mental disorder." The bill also
set out the procedures to be followed for dispositions and reviews concerning
those found "unfit to stand trial" or "not criminally responsible."
Proclamation was delayed for a number of sections, including those that
would place a "cap" on the length of disposition in respect
of any given offence and those that would allow a court to order the initial
part of a custodial sentence to be served in a treatment facility, where
the offender is "suffering from a mental disorder in an acute phase"
and requires immediate treatment.
C. Bill C-72; An Act
to amend the Criminal Code (Self-induced Intoxication), S.C. 1995, c.
Bill C-72 removed the defence of intoxication for certain
general intent offences by substituting a mental or fault element of criminal
D. Bill C-46; An Act
to amend the Criminal Code (Production of Records
Sexual Offence Proceedings), S.C. 1997, c. 30
Bill C-46 restricted an accuseds access to the
medical or therapeutic records of a complainant in sexual assault proceedings
and set out criteria for deciding the likely relevance of any such evidence
and whether it should be produced for review by the trial judge and/or
A. (L.L.) v. B.(A.),  4 S.C.R.
B.C. Securities Commission v. Branch, 
2 S.C.R. 3
Canada v. Schmidt,  1 S.C.R. 500
Cunningham v. Canada,  2 S.C.R. 143
DeSousa v. The Queen,  2 S.C.R. 944
Kindler v. Canada (Minister of Justice),
 2 S.C.R. 779
Nelles v. Ontario,  2 S.C.R. 170
New Brunswick (Minister of Health and Community Services
v. G.(J.)), 10 September 1999, Supreme Court of Canada
Operation Dismantle Inc. v. The Queen,
Can. Charter of Rights Ann. 12-7 (Fed. C.A.),  1 S.C.R. 441
R. v. Beare,  2 S.C.R. 387
R. v. Bernard,  2 S.C.R. 833
R. v. Broyles,  3 S.C.R. 595
R. v. Carosella, ( 1 S.C.R. 80, reversing
(1995), 26 O.R. (3d) 209 (Ont. C.A.)
R. v. Chambers,  2 S.C.R. 1293
R. v. Crawford; R. v. Creighton,
 1 S.C.R. 858
R. v. Creighton,  3 S.C.R. 3
R. v. Daviault,  3 S.C.R.
R. v. Dixon,  1 S.C.R. 244
R. v. Durette,  1 S.C.R. 469
R. v. Finlay,  3 S.C.R. 103
R. v. Fitzpatrick,  4 S.C.R. 154.
R. v. Gosset,  3 S.C.R. 76
R. v. Gustavson (1982), 1 C.C.C. (3d) 470
R. v. Hébert,  2.S.C.R. 151
R. v. Heywood,  3 S.C.R. 76
R. v. Hundal,  1 S.C.R. 867
R. v. Janoff (1991), 68 C.C.C. (3d) 454
R. v. Jobin,  2 S.C.R. 78
R. v. Jones (1994), 30 C.R. (4th) 1 (S.C.C.)
R. v. L. (D.O.),  4 S.C.R. 419
R. v. La,  2 S.C.R. 680
R. v. Langlois (1993), 80 C.C.C. (3d) 28
R. v. Laramee (1991), 73 Man. R. (2d) 238
R. v. Levogiannis,  4 S.C.R. 475.
R. v. Liepert,  1 S.C.R. 281
R. v. Liew, 16 September 1999, Supreme
Court of Canada
R. v. MacDonnell,  1 S.C.R. 305
R. v. Martineau,  2 S.C.R. 633
R. v. Mills, 25 November 1999, Supreme
Court of Canada
R. v. Naglik,  3 S.C.R. 122
R. v. Noble,  1 S.C.R. 874
R. v. Nova Scotia Pharmaceutical Society,
 2 S.C.R. 606
R. v. OConnor,  4 S.C.R.
R. v. Primeau,  2 S.C.R. 60
R. v. Rose,  3 S.C.R. 262
R. v. S. (R.J.),  1 S.C.R. 451
R. v. Seaboyer; R. v. Gayme,
 2 S.C.R. 577
R. v. Stinchcombe,  3 S.C.R. 326
R. v. Swain,  1 S.C.R. 933
R. v. Vaillancourt,  2 S.C.R. 636
R. v. White,  2 S.C.R. 417
R. v. Winko,  2 S.C.R. 625
Re B.C. Motor Vehicle Act,  2 S.C.R. 486
Reference re Ng Extradition (Canada),  2
Rodriguez v. Attorney General of Canada of
British Columbia,  3 S.C.R. 519
Southam Inc. v. Hunter,  2 S.C.R.
Thomson Newspapers Ltd. v. Canada Director
of Investigation and Research, Restrictive Trade Practices
Commission,  1 S.C.R. 425
W.K.L. v. R.,  1 S.C.R. 1091
The original version of this Current Issue Review was published in
February 1992; the paper has been regularly updated since that time.