CRIMINAL TRIAL AND PUNISHMENT:
PROTECTION OF RIGHTS UNDER THE CHARTER
Law and Government Division
Revised 24 February 2000
BACKGROUND AND ANALYSIS
A. The Interpretation of an Entrenched
B. Specific Rights: Section 11
with an Offence" - The Application of Section 11
Informed of Specific Offence - Section 11(a)
Within a Resonable Time - Section 11(b)
Not to be a Compellable Witness Against Oneself - Section 11(c)
Presumption of Innocence - Section 11(d)
Hearing - Independent and Impartial Tribunal - Section 11(d)
Reasonable Bail - Section 11(e)
to Trial by Judge and Jury - Section 11(f)
Not to be Tried Twice for the Same Offence - Section 11(h)
C. Cruel and Unusual Treatment or Punishment:
D. Self-Incrimination: Section 13
A. Bill C-70: An Act to amend the
Criminal Code (Jury) S.C. 1992, c. 41
B. Bill C-77: An Act to amend the
National Defence Act, S.C. 1992, c. 16
CRIMINAL TRIAL AND
PROTECTION OF RIGHTS 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 inclusive. They 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.
The purpose of this analysis is to determine what effect
sections 11, 12 and 13 of the Charter have had on existing criminal
law. 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.
BACKGROUND AND ANALYSIS
The Interpretation of an Entrenched Charter
When analyzing the decisions of the courts with respect
to these sections, 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 which has been prevalent in the
United States and to continue in some measure the Canadian heritage of
parliamentary supremacy. Section 1 allows legislatures to impose
reasonable limits upon rights and freedoms, while section 33 allows
the legislatures to expressly 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 governmental action."
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 sections 11, 12 and 13 and
discusses recent court decisions showing the impact of those sections
on the criminal justice system.
B. Specific Rights: Section
This section states:
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of
the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings
against that person in respect of the offence;
(d) to be presumed innocent until proven guilty according
to law in a fair and public hearing by an independent and impartial
(e) not to be denied reasonable bail without just
(f) except in the case of an offence under military
law tried before a military tribunal, to the benefit of trial by jury
where the maximum punishment for the offence is imprisonment for five
years or a more severe punishment;
(g) not to be found guilty on account of any act
or omission unless, at the time of the act or omission, it constituted
an offence under Canadian or international law or was criminal according
to the general principles of law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be
tried for it again and, if finally found guilty and punished for the
offence, not to be tried or punished for it again; and
(i) if found guilty of the offence and if the punishment
for the offence has been varied between the time of commission and
the time of sentencing, to the benefit of the lesser punishment.
with an Offence" - The Application of Section 11
In R. v. Wigglesworth, the Supreme Court
of Canada held that section 11 rights "are available to persons
prosecuted by the State for public offences involving punitive sanctions,
i.e., criminal, quasi-criminal and regulatory offences, either federally
or provincially enacted." Thus, even though a minor traffic offence
may carry slight consequences, the criminal or quasi-criminal nature of
the proceedings would bring it within section 11.
The Court also held that section 11 applies to proceedings
which carry a true penal consequence. The possibility of a year of imprisonment
for officers found guilty of a major service offence in R.C.M.P. Service
Court was held to attract section 11 guarantees, even though the
proceedings were found to be disciplinary rather than criminal or quasi-criminal
2. Informed of Specific
Offence - Section 11(a)
The courts have interpreted "the right to be informed
without unreasonable delay of the specific offence" as arising when
the information is laid; that is, when the person is "charged with
the offence." It has also been held that this section does
not offend the right to lay alternate charges.
An example of the operation of this subsection can be
seen in the Ryan case, in which the court quashed an information
laid two months after the accused had received an appearance notice. The
courts have interpreted the phrase "informed ... of the specific
offence" pragmatically, as implying the right to be informed of the
substantive offence and the acts or conduct that allegedly form the basis
of the charge.
3. Tried Within a Reasonable
Time - Section 11(b)
In the 18 October 1990 Askov decision of
the Supreme Court of Canada, Mr. Justice Cory, for the unanimous
Court, held that the right to be tried within a reasonable time, like
other specific section 11 guarantees, is primarily concerned with
an aspect of fundamental justice guaranteed by section 7. The primary
aim of section 11(b), he said, is to protect the individuals
rights and to protect fundamental justice for the accused. There is a
need to treat those on trial fairly and justly. There is also a practical
benefit to be derived from resolving charges quickly since memories fade
with time and witnesses may move, become ill or die. Victims of crime
also have an interest in whether or not criminal trials take place within
a reasonable time.
Mr. Justice Cory argued that the failure of the
criminal justice system to work "fairly, efficiently and with reasonable
dispatch ... inevitably leads to community frustration with the judicial
system and eventually to a feeling of contempt for Court procedures."
The judge went on to say that in determining whether the delay in bringing
the accused to trial has been unreasonable, the court should consider
a number of factors, such as: (1) the length of the delay; (2) the
explanation for the delay; (3) the accuseds waiver of the right
to be tried expeditiously (i.e. through requests for, or agreement with,
adjournments or failure to demand as early a date as possible for trial);
and (4) prejudice to the accused. The longer the delay, the more
difficult it should be for a court to excuse it and "very lengthy
delays may be such that they cannot be justified for any reason."
Those delays that will weigh in favour of the accused, he continued, are
those attributable to the Crown or to systemic or institutional delays;
in complex cases, longer delays will, to a point, be acceptable.
Mr. Justice Cory held that when considering delays
occasioned by inadequate institutional resources - essentially the reason
for the two-year trial delay in Askov - the court may compare the
jurisdiction in question (i.e. Ontario) with other, "better"
jurisdictions in the rest of the country. In all cases, the Crown will
have the burden of showing that the institutional delay in question is
justified. A waiver of rights by the accused will justify delay, but,
to be valid, such a waiver must be informed, unequivocal and freely given.
The Askov decision generated considerable confusion
in Canadian criminal courts. From the date of the decision until 12 April
1991, more than 34,495 charges in Ontario alone were stayed, dismissed
or withdrawn on the basis of the judgment. This appeared to have a serious
impact on the publics confidence in the administration of justice.
Mr. Justice Cory, who wrote the judgment, was so "shocked"
by its effects that he told a legal conference that the Court had not
been made aware of the potential impact of the decision at the hearing.
He suggested that the ruling may have been misinterpreted by lower courts
and defence counsel.
In order to ensure that the Askov decision was
"properly understood and applied throughout Ontario," the Ontario
Court of Appeal heard and determined six special cases. In R. v.
Bennett, the lead case, the Court concluded that a large number
of cases had been stayed because Askov had been erroneously interpreted
as meaning that a systemic delay beyond six to eight months in bringing
an accused to trial should automatically result in a stay or dismissal
of charges. The Court of Appeal held that the assessment of the delay
should not be reduced to a simplistic computation of time; courts must
carefully balance the four factors noted above. Further, the case puts
a heavy burden on defendants to submit "sophisticated" statistical
information concerning systemic delay in particular jurisdictions in support
of their motions for a stay. These conclusions were expected to reduce
the number of charges stayed and withdrawn on the basis of section 11(b).
In the subsequent case of R. v. Morin,
in an appeal from the Ontario Court of Appeal, the Supreme Court of Canada
was asked to consider whether delay caused by systemic factors could be
excused during a transition period of reform aimed at providing trials
within a reasonable time. On 26 March 1992, the majority held that
an institutional delay of approximately 12 months was not unreasonable,
given the absence of any significant prejudice to the accused and the
strain on institutional resources brought about by a 70% increase in adult
court caseloads over a five-year period in the district in question.
In the subsequent case of R. v. Collins; R.
v. Pelfrey, the Supreme Court of Canada had occasion to consider
delay due to actions by the Crown, rather than institutional or systemic
factors. The two accused in the case had spent 22 months in custody prior
to a directed verdict of acquittal on second degree murder charges. That
acquittal was later set aside by the Ontario Court of Appeal and a new
trial ordered. The second trial judge then stayed proceedings on the ground
that the 11 (b) rights of the accused persons had been infringed by the
initial 22-month delay; that decision was reversed by the Court of Appeal.
Writing for a majority of the Supreme Court of Canada,
Mr. Justice Sopinka agreed that "delay due to the actions of the
Crown and in respect of which an explanation was required was in the order
of 5 to 10 months." He went on to find that, while the accused were
in custody and "pressing for an early trial," the Crown had
prolonged the preliminary inquiry by delaying disclosure and had requested
a lengthy delay that was not justified in the circumstances. As a result,
the accuseds appeal was allowed and the stay of proceedings restored,
affirming the trial judges conclusion that the delay was unreasonable
and in violation of s. 11 (b).
The Supreme Court of Canada has also held that persons
charged with an offence "in the context of s. 11(b) of the Charter"
include corporations. In R. v. CIP Inc., however, the Court
found that a corporation could not rely on a presumption of prejudice
arising out of excessive delay; that presumption is based on an accuseds
rights as an individual to liberty and security of the person (section
7) and these rights do not extend to corporations. Instead, an accused
corporation would have to establish that its fair trial interest had been
"irremediably prejudiced." Because the appellant in this instance
had not argued that its ability to make full answer and defence had been
impaired, the Court dismissed the appeal, holding that the initial charge
ought not to be stayed.
In R. v. Kalanj, the Supreme Court of Canada
held that s. 11 (b) does not apply to pre-charge delay since the accused
were not "persons charged" until a formal charge had been laid.
In R. v. L. (W.K.), the Supreme Court applied that judgment
"to rule out review of precharge delay unless the accused can establish
a breach under s.7."
However, the Supreme Court of Canada has said that s.
11(b) does extend to the sentencing process. In R. v. MacDougall,
the Court held that s. 11(b) protects an accused persons liberty,
security and the right to a fair trial, all of which may be adversely
affected by a delay in sentencing.
In R. v. Potvin, the Supreme Court of Canada
was subsequently called on to consider the application of s. 11 (b) to
appellate delays. A six to three majority of the court held that s. 11
(b) does not apply in respect of an appeal from conviction by the accused
or from an acquittal or stay by the Crown. Their reasoning was that the
term "any person charged" does not, as a general rule, include
an accused person who is party to an appeal. The court also said, however,
that the criminal appellant or respondent is not without a remedy if delay
of the appeal process affects the fairness of the trial; as a principle
of fundamental justice enshrined in s. 7, the court has the power to remedy
such an abuse of process.
4. Right Not to be a Compellable
Witness Against Oneself - Section 11(c)
This section is worded widely and on this basis, Professor
Martin Friedland argues that it may prevent the enactment of a law compelling
the accused to give evidence at a preliminary hearing and to give evidence
to a police officer.
An Ontario Court of Appeal decision in the Crooks
case indicates that this paragraph does not prevent the Crown from calling
an accused separately charged with the same offence as a witness on a
The Quebec Court of Appeal considered the issue in R.
v. Zurlo, where the accused and his wife were each separately charged
and compelled to testify at the others preliminary inquiry. At a
subsequent joint trial, the accused was prevented from cross-examining
his wife and denied a motion for a separate trial. Concluding that the
couple had been separately charged for the sole purpose of circumventing
their right to silence, the Court set aside the conviction and entered
a stay of proceedings, finding that the accused had been denied the right
to a fair trial.
It should also be noted that this section has been interpreted
as not impinging upon the taking of breath samples. In the Stasiuk
case, it was decided that "the privilege against self-incrimination
is a limited one which applies to an accused qua witness and is
restricted to a testimonial compulsion. A breath test is not in the nature
of a statement or a testimonial utterance."
In Caisse Populaire Laurier dOttawa Ltée
v. Guertin et al., a civil remedy was sought while there were outstanding
criminal charges connected with the same situation. It was decided that
section 11(c) of the Charter does not mean that a person who chooses
to defend a civil action is not compellable in a civil proceeding arising
from facts that are the subject of simultaneous criminal proceedings.
The Ontario High Court added that neither section 11(c) nor section 13
of the Charter gave "any hint of support for the proposition"
that the privilege against self-incrimination includes an individuals
right to remain silent in parallel civil proceedings.
5. Presumption of
Innocence - Section 11(d)
This section is composed of several elements, of which
the presumption of innocence has been the one most considered in the case
law. A major issue has been the constitutionality of statutes with a "reverse
onus" clause requiring the accused to disprove an element of the
offence or to prove an excuse or the existence of a fact that will avoid
conviction. The Supreme Court of Canada has considered this issue in several
cases (beginning with R. v. Oakes and, more recently, in
R. v. Whyte, R. v. Keegstra and R.
v. Chaulk), in which it was held that such clauses violate section 11(d).
Where an onus is put on the accused to prove something in order to escape
conviction, the general presumption of innocence in the criminal law is
effectively displaced by a presumption of guilt. The Supreme Court, in
Whyte and Keegstra, ruled that such clauses are unconstitutional
because they raise the possibility that the accused might be convicted
in spite of the existence of a reasonable doubt; that is, the accused
might fail to prove the existence of the exonerating element, which may,
in fact, exist.
While the statutes in question may abridge the section 11(d)
right, they may still be upheld as a reasonable limitation of that right
pursuant to section 1, where the legislature or Parliament has a
legitimate objective for the limitation.
In Keegstra, the Court considered the hate propaganda
provisions of the Criminal Code. A majority held that section 11(d)
was violated by the provision exonerating the accused from liability where
he or she proves that the impugned statements were true. Nevertheless,
the provision was held to be a reasonable limitation under section 1
because otherwise the Crown would have had to prove the falsity of the
accuseds statements beyond a reasonable doubt. This would have excused
much of the "harmful expressive activity."
Likewise, in Chaulk, a majority held that section 11(d)
was violated by the provision of the Criminal Code that raises
a presumption of sanity, thereby requiring the accused to prove insanity
on the balance of probabilities in order to raise the insanity defence.
A majority held that this provision was a reasonable limitation on section 11(d)
because the alternative - requiring the Crown to disprove insanity - would
be unduly onerous.
In R. v. Downey, the Supreme Court of Canada
considered section 195(2) (now section 212(3)) of the Criminal Code,
which provides that "evidence that a person lives with or is habitually
in the company of a prostitute...is, in the absence of evidence to the
contrary, proof that the person lives on the avails of prostitution."
According to Criminal Code section 212(1)(j), living "wholly
or in part on the avails of prostitution of another person" is an
indictable offence carrying a maximum penalty of 10 years imprisonment.
All seven judges who heard the case agreed that the impugned section infringed
the accuseds right to be presumed innocent (section 11(d)). A majority
of four, however, held that such infringement was a reasonable limit under
section 1 of the Charter of Rights and Freedoms; the objective
of addressing the "cruel and pervasive social evil" of exploitation
by pimps was sufficiently important to warrant overriding a Charter right.
Furthermore, the Charter limitation was proportionate to the legislative
objective, given "the reluctance of prostitutes to testify against
pimps" and the fact that the innocent "need only point to evidence
capable of raising a reasonable doubt" on the issue in order to avoid
In R. v. Osolin, the Supreme Court of Canada
was called upon to consider whether section 265(4) of the Criminal
Code had infringed the appellants right to be presumed innocent
in his trial for sexual assault. Section 265(4) codifies the defence of
mistaken belief in consent; it has long been interpreted as requiring
the accused to provide sufficient evidence, in support of his or her claim
of an honestly held belief in consent, to impart an "air of reality"
to the defence. The accuseds bare assertion of a mistaken belief
in consent, would not on its own be enough to enable or oblige a trial
judge to put the defence of mistaken belief to the jury. The appellant
in R. v. Osolin argued that the evidentiary burden imposed
by section 265(4) infringed his right to be presumed innocent. Because
the trial judge had refused to charge the jury with respect to the defence
of mistaken belief in consent, the appellant also argued that the "air
of reality" threshold operated to deny him of his right to trial
by jury under section 11(f) of the Charter.
In rejecting both arguments, Mr. Justice Cory found that
"the mere fact of the air of reality requirement does not displace
the presumption of innocence." Although it does place an evidentiary
burden on the accused to "raise sufficient evidence to give the defence
an air of reality to justify its presentation to the jury, the burden
of proving all of the elements of the offence beyond a reasonable doubt
rests squarely with the Crown." Furthermore, there was no violation
of the appellants right to trial by jury since the sufficiency of
evidence in such a case is a question of law and "therefore is properly
in the domain of the judge."
In the subsequent case of R. v. Laba, the
Supreme Court of Canada substituted a similar evidentiary burden for a
provision in s. 394(1)(b) of the Criminal Code making it an
offence for anyone to sell or purchase precious metal ores "unless
he establishes that he is the owner or agent or is acting under lawful
authority." Because an accused would have to prove ownership or authority
on the balance of probabilities, thereby making it possible for a person
to be convicted despite the presence of a reasonable doubt as to guilt,
the Crown had conceded that s. 394(1)(b) offended section 11(d) but
argued that it was a reasonable limit under section 1 of the Charter.
Although deterring the theft of precious metal ores was found to be a
sufficiently important objective to warrant overriding a constitutionally
protected right, the Court held that s. 394(1)(b) did not impair
as little as reasonably possible an accuseds right to be presumed
innocent. Finding that Parliaments purpose would be "effectively
served by the imposition of an evidential burden," the Supreme Court
of Canada rewrote the impugned section to allow conviction only "in
the absence of evidence which raises a reasonable doubt" that the
person is an owner or agent or acting under lawful authority.
The Ontario Court of Appeal has
taken a similar approach to section 215 (2) of the Criminal Code,
which makes it an offence in certain prescribed circumstances to fail
to provide persons with the "necessaries" of life, "without
lawful excuse," which must be established by the accused. In R.
v. Curtis a police sergeant had been charged with such failure
following the death of a prisoner under his care. Holding that the reverse
onus provision violated section 11 (d) of the Charter in a manner that
did not meet the test for "minimal impairment," the Court of
Appeal declared the words "the proof of which lies upon him"
to be of no force and effect.
In R. v. Phillips, the General Division of the Ontario
Court of Justice subsequently found that section 11(d) Charter rights
were infringed by the Criminal Code provisions making it an offence
to be an occupant of a motor vehicle in which a person knows there is
a restricted weapon. At the time, section 91(3) excluded those instances
where someone in the car was the holder of a permit allowing lawful possession
of the weapon in the vehicle, or where the accused could establish that
he had reason to believe such was the case. Finding that the impugned
provision could require an accused to establish the existence of a fact
not within his or her own knowledge, Mr. Justice Corbett further held
that it was not a reasonable limit under section 1 of the Charter. Consequently,
he declared section 91(3) to be of no force and effect. It remains to
be seen whether 1995 amendments to the offence in question would pass
constitutional muster. As of 18 November 1997, however, those amendments
had yet to be proclaimed in force.
In R. v. Ellis-Don Ltd., the Ontario Court
of Appeal declared unconstitutional the due diligence defence as applied
to a provincial regulatory offence. The case concerned a section of the
Occupational Health and Safety Act requiring the general contractor
of a project to ensure that safety measures are followed. Both the statute
and the common law provided a defence of due diligence, which required
an accused to prove on a balance of probabilities that he or she had taken
all reasonable measures to avoid an accident. Unless this was done, the
Court was required to convict the accused, even though it had a reasonable
doubt about guilt. In its section 1 analysis, the Court of Appeal held
that the provision did not violate section 11(d) to the minimum extent
R. v. Ellis Don Ltd. was subsequently reversed
by the Supreme Court of Canada, relying on its reasoning in The Wholesale
Travel Group Inc. v. The Queen. In that 1991 decision, the
Court had upheld reverse onus provisions in the Competition Act
by a five to four majority; two of the five had held that requiring an
accused to establish due diligence on a balance of probabilities did not
infringe section 11(d), while the remaining three found that the provision
did so, but was justified under section 1 of the Charter of Rights
6. Fair Hearing - Independent and
Impartial Tribunal - Section 11(d)
The Supreme Court of Canada ruled in the Corbett
case that allowing prior criminal convictions into evidence does not deprive
an accused of the right to a fair trial under section 11 of the Charter.
The section of the Canada Evidence Act that allows this permits
an accused who is testifying on his or her own behalf to be cross-examined
with respect to prior convictions. The rationale is that prior convictions
can bear on the witnesss credibility.
The Supreme Court of Canada has also held that section
11(d) rights apply to regulatory offences as well as criminal proceedings.
However, the right to a hearing can be waived, as long as this is done
voluntarily and with full knowledge of the consequences. In R.
v. Richard, the court examined New Brunswicks Provincial
Offences Procedure Act, which allows for conviction in absentia,
if an accused, after declining to pay a fine, fails to appear in court
to respond to a ticket issued directly to him or her by police. Relying
on the fact that there was no possibility of imprisonment, even if a fine
was not paid, the court held that the legislature could infer from the
litigants failure to act that they had waived their right to a hearing
and consented to a conviction being made against them.
In the Vermette case, the Supreme Court held that
statements in the National Assembly by the Premier of Quebec had not necessarily
resulted in the denial of the accuseds right to a fair trial due
to bias in the jury. The existence of such bias would have to be determined
at the time of jury selection, but statements by politicians could not
frustrate the whole criminal process.
In R. v. Valente, the Supreme Court considered
that trial by an independent and impartial tribunal requires the tribunals
individual independence (as reflected in security of tenure and financial
security) and institutional independence (as reflected in its administrative
relationship to the legislative or executive branches of government).
The tribunal must not only enjoy these characteristics but must be perceived
to do so.
The Court Martial Appeal Court of Canada has applied
the Valente tests for independence to both Standing and General
Courts Martial. In R. v. Ingebrigtson, the Court found that
Standing Courts Martial presidents lacked financial independence because
the Chief of Defence Staff had authority to fix their salaries on the
basis of merit. Conversely, in R. v. Généreux, General Courts
Martial tribunals, appointed ad hoc for a single case, were found to be
independent because their members had no reason to fear any loss of salary
On 13 February 1992, the Supreme Court of Canada
overturned the decision in R. v. Généreux and ordered a
new trial on the basis that the structure of the General Court Martial
had infringed the accuseds right to be tried by an independent and
impartial tribunal as guaranteed by section 11(d) of the Charter of
Rights and Freedoms. Of the majority of eight, five judges found that
the procedure for appointment and evaluation of judge advocates had failed
to meet the tests for security of tenure or financial security set out
in Valente. Furthermore, aspects of the system had also cast doubt
on the institutional independence of General Courts Martial. Because it
could not be claimed that the accuseds section 11(d) rights had
been impaired as little as possible, there could be no justification under
section 1. At the same time, the Court indicated that recent amendments
to the Queens Regulations and Orders for the Canadian Forces
had effectively alleviated the deficiencies relating to security of tenure
and financial security.
On 6 May 1992, Bill C-77, An Act to amend the National
Defence Act was passed by the House of Commons after consideration by
Committee of the Whole. The bill contained provisions to alleviate the
apparent lack of institutional independence identified by the Supreme
Court in Généreux. Under amendments to the Act, the prosecutor
and members of the court martial who serve as triers of fact will no longer
both be appointed by the same convening authority; instead, the president
and other members will be appointed by an officer designated by regulation.
Prior to the Supreme Court decision in Généreux, authority to appoint
judge advocates had been removed from the Judge Advocate General (an agent
of the executive) and given to the Chief Military Trial Judge, a step
that had addressed the Courts other serious reservation concerning
the lack of institutional independence.
Even though allegations of bias or partiality are usually
assessed on an individual case-by-case basis, the objective status of
a tribunal may be relevant to impartiality just as it is to independence.
When discussing the section 11(d) requirement for impartiality, in
R. v. Lippé, the Supreme Court of Canada accepted that a
reasonable apprehension of bias could arise on an institutional or structural
level. For example, the Court found that the practice of law by some part-time
Municipal Court judges raised a reasonable apprehension of bias. However,
that apprehension had been alleviated by various safeguards which had
been implemented to address the issue.
On 23 January 1992, a four to three majority of
the Supreme Court of Canada found Criminal Code sections 634(1)
and (2) inconsistent with section 11(d) of the Charter of Rights and
Freedoms, insofar as they provided the Crown in the jury selection
process with a combination of peremptory challenges and standbys that
exceeded the number of peremptory challenges available to an accused.
Under the impugned Criminal Code provisions, the prosecutor was
entitled not only to challenge four jurors peremptorily, but also to direct
as many as 48 to stand by. In contrast, the accused was entitled to 20,
12 or four peremptory challenges, depending upon the nature of the charge
or the maximum penalty available. Writing for three of the majority in
R. v. Bain, Mr. Justice Cory found that the prosecutors
"overwhelming numerical superiority of choice," in the jury
selection process, would give the reasonable person an apprehension of
bias. Likewise, Mr. Justice Stevenson held that the Crowns "substantial
advantage in the ability to shape and fashion the jury" severely
impaired the appearance of fairness and impartiality. The Court found
that the legislation could not be justified under section 1, but
"suspended" a declaration of invalidity for a period of six
months in order to give Parliament an opportunity to enact new legislation.
Bill C-70 was introduced on 6 April 1992 to fill
the void created by the decision in R. v. Bain. In addition
to abolishing the Crowns right to "stand by" prospective
jurors, Bill C-70 gave the Crown and the accused an equal number of peremptory
challenges and changed the order in which they would be declared. The
bill also repealed provisions allowing a jury of only six persons in the
Yukon and Northwest Territories and codified aspects of jury selection
previously endorsed by the courts. The existing procedure on challenges
for cause remained unchanged.
The Supreme Court of Canada has
also held that the right to an independent and impartial tribunal means
that an accused "must be permitted to challenge potential jurors
where there is a realistic potential or possibility that some among the
jury pool may harbour prejudices that deprive them of their impartiality."
In R. v. Williams, the court held that evidence of widespread
racial prejudice in the community was sufficient to establish the right
of an accused to challenge for cause, since "[c]oncrete evidence
as to whether potential jurors can or cannot set aside their racial prejudices
can be obtained only by questioning a juror."
7. Reasonable Bail
- Section 11(e)
Ordinarily, the Criminal Code requires the prosecution
to justify the detention of an accused, pending trial. Bail will be granted
unless the Crown establishes that detention is necessary, either to ensure
the accuseds attendance in court, or in the public interest. In
R. v. Bray, the Ontario Court of Appeal held that Criminal
Code provisions requiring an accused murderer to show that his detention
in custody is not justified do not infringe section 11(e) and that
even if they did, the infringement would be justified as a reasonable
limit under section 1 of the Charter. Conversely, in R. v.
Pearson, the Quebec Court of Appeal struck down Criminal Code
provisions that require persons accused of importing or trafficking under
the Narcotic Control Act, to be detained in custody unless they
show cause why such detention is not justified. While acknowledging that
the struggle against drug trafficking is a sufficiently important objective
to justify overriding a constitutional right, the Court of Appeal found
that the law failed the proportionality test because it was discriminatory
and arbitrary and did not constitute a minimum impairment of Charter rights.
The Pearson decision was subsequently overturned
by a majority of the Supreme Court of Canada, who found that section 515(6)(d)
of the Criminal Code does not infringe an accuseds right
to reasonable bail. The Court accepted that the lucrative nature of drug
trafficking and importation can create incentives to continue criminal
behaviour after arrest and, furthermore, that traffickers and importers
may pose a greater risk than other accused of absconding before trial.
The Court also noted that denial of bail under section 515(6)(d) applies
only in a narrow set of circumstances, "is necessary to promote the
proper functioning of the bail system and is not undertaken for any purpose
extraneous to the bail system." Although section 515(6)(d) would
result in denial of bail in certain circumstances, the majority held that
it also provides "just cause" for such denial and, thus, does
not infringe section 11(e) of the Charter.
In the companion case of R. v. Morales,
the Supreme Court of Canada upheld parallel Criminal Code provisions
placing the onus on the accused to demonstrate that detention is not justified,
when charged with an indictable offence allegedly committed while released
on bail. In reaching that decision, the Court pointed out that bail is
granted "on condition that the accused will cease criminal behaviour";
section 515(6)(a) "establishes a set of special bail rules where
there are reasonable grounds to believe that the accused has already breached
this condition." Since the provision is "narrow and carefully
tailored to achieve a properly functioning bail system," it constitutes
"just cause" to deny bail and does not violate section 11(e)
of the Charter.
The Morales case also involved a challenge to
the validity of Criminal Code section 515(10)(b) grounds for detaining
an accused in custody. Under that provision, an accused could be held
in custody on the grounds that detention is "necessary in the public
interest," or "for the protection or safety of the public, having
regard to all the circumstances, including any substantial likelihood
that the accused will, if he is released from custody, commit a criminal
offence or interfere with the administration of justice." Although
the Court had no trouble upholding the "public safety" reasons,
the "public interest" criterion was struck down for being too
vague and imprecise to constitute just cause for denial of bail within
the meaning of section 11(e) of the Charter. The majority found that the
term gave the courts "unrestricted latitude to define any circumstances
as sufficient to justify pre-trial detention."
Although preventing offences or interference with the
administration of justice are sufficiently pressing objectives, the resulting
limitation on section 11(e) could not be justified under section 1
of the Charter; there was no rational connection between the objectives
and the legislative measure, there was more than a minimal impairment
of rights and the effects of the limit far exceeded the objectives of
the law. In order to minimize the Courts interference with the legislative
function, the offending words "in the public interest or" were
severed and struck down, allowing the remaining constitutionally valid
portion of section 515(10)(b) to stand.
8. Right to Trial by Judge and
Jury - Section 11(f)
In the Lee case, the Supreme Court of Canada ruled
upon the constitutionality of the provision in the Criminal Code
that denies a jury trial to an accused person who would otherwise be entitled
to one but who, for no good reason, fails to attend for trial or to remain
there once the trial has begun. The Court, in holding that the provision
is not unconstitutional, said that the Code provision went beyond merely
punishing the accused who fails to appear or to remain for a jury trial.
It had been enacted for the valid legislative purpose of protecting "the
administration of justice from delay, inconvenience, expense and abuse,
and to secure the respect of the public for the criminal trial process."
As the challenged Code section impairs the right to a jury trial "as
little as possible in order to achieve that legislative objective,"
it is, therefore, "proportionate to the objective of maintaining
respect for the system."
9. Right Not to be Tried Twice
for the Same Offence - Section 11(h)
In the Van Rassel case, the accused was an R.C.M.P.
officer and member of an international drug enforcement team. He was arrested
in Florida and charged in the U.S. with soliciting and accepting bribes
in exchange for information given to him by the American authorities.
He was acquitted at trial but was subsequently charged in Canada with
breach of trust under the Criminal Code.
The Supreme Court of Canada said that the Charter provision
"applies only in circumstances where the two offences with which
an accused is charged are the same." Since these two offences related
to different activities, they were not the same and it was not objectionable,
therefore, for the accused to be prosecuted in Canada after being acquitted
in the U.S.
Section 11(h) has a common origin with the long-established
defences of "autrefois acquit" and "autrefois convict,"
"issue estoppel" and the rule enunciated by the Supreme Court
in 1975 in the Kienapple case. The defences, or pleas, of autrefois
acquit and autrefois convict are contained in the Criminal Code.
In order for either defence to succeed the accused must show that the
current matter and the one of which he or she was previously acquitted
or convicted are the same; the new charge must be the same as the charge
at the first trial, or have been included implicitly in that charge. The
charges need not be absolutely identical; all that must be shown is that
the accused could have been convicted of the current charge at the first
The defence of issue estoppel is based on the principle
that a court should not rule on an issue that has already been decided
by another court. This principle was recognized by the Supreme Court of
Canada in the Gushue case.
The rule in the Kienapple case provides that a
conviction cannot be registered on the second charge if there has been
a conviction on a first charge arising out of the same cause. Thus, in
a shoplifting case where a person is charged simultaneously with one charge
of theft and one of possession of stolen goods, a conviction may be entered
on only one or the other where the same goods form the subject of both
charges. This is true as well where a person whose breathalyser reading
exceeds the legal limit is charged with both exceeding the legal limit
and impaired driving. This principle was most recently reviewed by the
Supreme Court of Canada in its decision in the Prince case, where
the Court held that the rule does not apply where there is more than one
victim, even if the same facts apply.
In Shubley v. The Queen, the Supreme Court
of Canada held that a finding of guilt in prison disciplinary proceedings
does not preclude a subsequent prosecution for the same action under the
Criminal Code. Since the disciplinary proceedings carried no real
penal consequences and were not meant to account to society for crimes
against the public interest, section 11(h) would not apply.
Similarly, criminal prosecution for assault, following
conviction for a "major service offence" under the Royal
Canadian Mounted Police Act, does not offend section 11(h) because
the "offences" involved are not the same. In R. v. Wigglesworth,
the Supreme Court of Canada found that an R.C.M.P. officer could be answerable
to both his profession and to society at large, for the same act or conduct.
Notwithstanding possible penal consequences, a conviction in service court
would not answer the criminal charge of assault.
C. Cruel and Unusual Treatment or Punishment:
Section 12 states:
Everyone has the right not to be subjected to any
cruel and unusual treatment or punishment.
While this section has not been used to set aside the
dangerous offender sections of the Criminal Code as unconstitutional,
it has provided the courts with an opportunity to review indeterminate
sentencing under the Criminal Code. In Re Mitchell and the
Queen, Mr. Justice Allan Linden of the Ontario Supreme Court
held that indefinitely detaining someone who is not a menace to society
would be cruel and unusual treatment or punishment, in violation of the
Charter of Rights and Freedoms." However, where it could be
shown that the accused posed a real danger to other persons if his or
her behaviour was not restrained, section 12 of the Charter would
not be violated.
In the Mitchell case, in attempting to devise
a standard that could be applied when determining whether treatment or
punishment was cruel and unusual, the Ontario Supreme Court found that
the treatment or punishment would have to be so excessive as to outrage
standards of decency and surpass all rational bounds of treatment or punishment.
"The test is one of disproportionality: is the treatment or punishment
disproportionate to the offence and the offender? Evidence that the treatment
or punishment is unusually severe and excessive in the sense of not serving
a valid penal purpose more effectively than a less severe treatment or
punishment will suffice to satisfy the test of disproportionality."
This test was further subdivided and amplified in the
Soenan case, which dealt with the complaints of a prisoner in pre-trial
custody. The court here defined the meaning of "cruel and unusual
treatment." It determined that the relevant factors are whether the
treatment is in accordance with public standards of decency and propriety;
whether it is unnecessary because of the existence of adequate alternatives;
and whether or not it can be applied upon a rational basis and in accordance
with ascertained or ascertainable standards.
Using these tests and applying some new ones (such as
"does the treatment have a social purpose and can it be applied upon
a rational basis in accordance with ascertainable standards?") the
Federal Court, Trial Division, in the Belliveau (No. 2) case
held that the mandatory supervision program does not authorize cruel and
unusual treatment or punishment.
In the Smith case, the Supreme Court of Canada
was called upon to decide whether the mandatory seven-year minimum sentence
for importing narcotics, contrary to section 5(2) of the Narcotic
Control Act, breached this section of the Charter. The Court, with
one dissenting judgment, held that the section did breach section 12
and was not justified under section 1 as a reasonable limit.
The fact that the purpose of the legislation, to deter
the drug trade and punish importers of drugs, was clearly valid did not
prevent the Court from ruling on the validity of the section. Mr. Justice
Lamer (writing also for Chief Justice Dickson) discussed the Charter limits
on "treatment or punishment." He said that it is generally
accepted in a society such as ours that the state has the power to impose
a "treatment or punishment" on an individual where it is necessary
to do so to attain some legitimate end and where the requisite procedure
has been followed.
The protection in section 12 governs the quality
of punishment, and its effect on the person. The words "cruel and
unusual" are to be read together as a "compendious expression
of a norm." The criterion to be applied is "whether the
punishment prescribed is so excessive as to outrage standards of decency";
the effect of punishment must not be grossly disproportionate to what
would have been appropriate. This reasoning is very similar to that found
in the Mitchell case.
In assessing whether a sentence is grossly disproportionate,
the court must first consider the gravity of the offence, the personal
characteristics of the offender and the particular circumstances of the
case in order to determine what range of sentences would have been appropriate
to punish, rehabilitate or deter this particular offender or to protect
the public from him or her. The other goals that may be pursued by imposing
punishment, in particular the deterrence of other potential offenders,
are thus not relevant at this stage of the inquiry. This does not mean
that in determining a sentence the judge or the legislator can no longer
consider general deterrence or other penological purposes that go beyond
the particular offender; it means only that the resulting sentence must
not be grossly disproportionate to what that offender deserves.
Noting that there was no suggestion that the eight-year
sentence imposed on this appellant was cruel and unusual, Lamer J. went
on to find that a seven-year minimum prison term was, nevertheless, disproportionate
"in light of the wide net cast by s. 5(1)." Because both the
offence of importing and the mandatory minimum sentence totally disregarded
the quantity of drugs involved, the purpose of importation and the existence
or absence of previous convictions of a similar nature, the court found
that it was inevitable that, in some cases, a verdict of guilt would lead
to the imposition of a "grossly disproportionate" term of imprisonment.
Although the legislative objective was sufficient to warrant overriding
a constitutionally protected right, the means chosen were not proportionate
since there was no need to sentence "small offenders" to seven
years in order to deter the serious offender. Therefore, the legislation
could not be justified as a reasonable limit under s. 1 of the Charter.
On 14 November 1991, the Supreme Court of Canada
held that a mandatory minimum seven-day jail term for driving while suspended
did not offend section 12. The facts of the particular case involved a
provision of the Motor Vehicle Act, R.S.B.C. 1979, c. 288,
which allowed the superintendent of motor vehicles to prohibit persons
with an unsatisfactory driving record from driving a motor vehicle. Conceding
its obligation to examine the statutory provision in light of reasonable
hypothetical circumstances, the Court nevertheless maintained that it
did not have a licence to invalidate "on the basis of remote or extreme
examples." However, the six to three majority decision in R.
v. Goltz left open the possibility of a different result if the
mandatory jail term were imposed for driving while suspended for administrative
infractions or other reasons of a "relatively minor nature,"
as also contemplated under the Act.
Relying on the Supreme Court of Canadas reasoning
in Smith and Goltz, the Manitoba Court of Appeal subsequently
held a portion of section 85 of the Criminal Code to be of no force
and effect because it infringed s. 12. Section 85 mandates both minimum
and consecutive sentences for the use of firearms during the commission
of an indictable offence. In R. v. Brown, the defence had
conceded that the 13-year sentence imposed "for these offences and
this offender" did not result in a prima facia determination
that his s. 12 rights had been breached. However, the wording of s. 85
is "broad enough to include what has been described as the small
or innocent offender," and the Court held that it could result in
a violation of s. 12 of the Charter in such a case. Since it was the requirement
that "jail terms be imposed and that they be served consecutively
both to the sentences imposed on the indictable offence or offences and
to each other that results in the violation of s. 12," the Court
chose to delete the words "or series of events" in s. 85(2).
Thus, the only requirement removed was that sentences imposed for a series
of firearms offences be served consecutively to each other.
The Supreme Court of Canada subsequently overturned the
Court of Appeal decision in Brown, finding no violation of s. 12
"when the underlying offence is robbery." Relying on their reasons
in Goltz, the Court specifically declined to consider the validity
of s. 85 "in conjunction with other potential underlying indictable
In Lyons v. The Queen, the Supreme Court
has held that imposition of an indeterminate sentence, upon finding that
an accused is a "dangerous offender," does not offend the protection
against cruel and unusual punishment because of the availability of parole.
However, in Warden of Mountain Institution v. Steele, the
Supreme Court later held that section 12 could be violated where
misapplication or disregard of review criteria (for dangerous offenders)
resulted in a period of incarceration far beyond the time when an offender
should have been parolled. In that case, the National Parole Board was
found to have erred in the application of criteria for release.
In Kindler v. Canada (Minister of Justice),
a majority of the Supreme Court held that extraditing fugitives to countries
where the death penalty might be imposed did not offend the Charter, but
three dissenting judges argued that imposition of the death penalty would
constitute a violation of section 12.
In the subsequent case of Chiarelli v. Canada
(Minister of Employment and Immigration), the Supreme Court of Canada
examined Immigration Act provisions calling for the deportation
of non-citizens convicted of an offence punishable by a period of imprisonment
of five years or more. The Court held that although it might be considered
a "treatment," deportation of "a permanent resident who
has deliberately violated an essential condition of his or her being permitted
to remain in Canada...., cannot be said to outrage standards of decency"
and would not constitute cruel and unusual treatment or punishment.
The Supreme Court of Canada took a similar view of penalties
imposed on persons convicted of a "corrupt or illegal practice,"
in contravention of the New Brunswick Elections Act. In Harvey
v. New Brunswick (Attorney General), the court held that a five-year
disqualification from being elected or sitting as a member of the provincial
legislature did not amount to cruel and unusual treatment or punishment
in contravention of section 12.
Other cases dealing with the application of this section
have concentrated mainly on such matters as solitary confinement and the
double-celling of inmates in penitentiaries.
D. Self-Incrimination: Section 13
This section provides that:
A witness who testifies in any proceedings has the
right not to have any incriminating evidence so given used to incriminate
that witness in any other proceedings, except in a prosecution for
perjury or for the giving of contradictory evidence.
This is similar to section 5(1) of the Canada
Evidence Act with one important exception: the Act contemplates that
an objection must be made by the witness, whereas the Charter does not.
Also the Charter allows a later prosecution for the giving of contradictory
evidence (evidence dissimilar to that previously given) as well as for
perjury. This change was necessary because the Canada Evidence Act
has been interpreted as not encompassing a contradictory evidence charge
within the word "perjury."
Section 13, which is obviously linked to section 11(c),
affords protection against testimonial compulsion. This protection is
better than that which existed before the Charter came into force, in
that the witness no longer needs expressly to claim protection in order
to receive it; however, there is no absolute right to refuse to answer
questions. This was the position taken in the Thomson Newspapers Ltd.
case, where the Supreme of Canada Court upheld the authority of the Restrictive
Trade Practices Commission to examine under oath representatives of corporations
suspected of violating the federal Combines Investigation Act.
Since this was an "inquisitorial" (rather than an "adversarial")
proceeding, so that no final determination as to criminal liability was
reached, there was no absolute right to refuse to answer questions. Otherwise,
there would be a "dangerous and unnecessary imbalance between the
rights of the individual and the communitys legitimate interest
in discovering the truth about the existence of practices against which
the Act was designed to protect the public". In any case, said the
Court, the individuals right to prevent the subsequent use of compelled
self-incriminatory testimony continues unchanged by this requirement;
hence, the individuals rights and those of the state are kept in
An interesting situation developed in the Dubois
case, where the Alberta Court of Appeal held that the Crown, in an attempt
to incriminate an individual who had successfully appealed a conviction,
could use the first-trial testimony of the individual in a new trial ordered
by the Court of Appeal. It was determined that the second trial of an
accused for the same offence is not an "other proceeding" within
the meaning of this section; therefore the previous testimony can be used.
The Supreme Court of Canada reversed the decision of the Alberta Court
of Appeal in this case, however; it determined that an accuseds
incriminating testimony given in the initial trial could not be used against
him in a subsequent retrial ordered by the Court of Appeal. The Supreme
Court also felt that allowing the prosecution to use the accuseds
previous testimony would amount to compelling the accused to testify,
thus contradicting the right to remain silent and to be presumed innocent.
However, the Court did not say whether it would rule out the use of previous
testimony during cross-examination in the re-trial.
This issue was resolved in two later decisions. In R.
v. Mannion, the Supreme Court held section 13 was violated
when the accuseds testimony from a prior trial was used in cross-examination
to contradict the accuseds testimony, and thereby establish guilt.
In the Kuldip case, however, the Supreme Court held that the use
of such testimony in cross-examination in order to attack the accuseds
credibility was not contrary to section 13; in such a case the testimony
is not specifically used to "incriminate" the accused, but only
to undermine the truth of the accuseds testimony.
A. Bill C-70: An Act
to amend the Criminal Code (Jury) S.C. 1992, c. 41
This statute abolished the Crowns right to stand
by prospective jurors. It also granted the Crown and the accused an equal
number of peremptory challenges and changed the order in which they are
B. Bill C-77: An Act
to amend the National Defence Act, S.C. 1992, c. 16
This statute changed the process for appointing the president
and other members of a court martial. It also gave the president authority
to exclude the public from a trial or part of a trial and granted the
judge advocate authority to determine questions of law or mixed law and
Hogg, Peter W. Canada Act 1982 Annotated. Carswell,
McDonald, Hon. David C. Legal Rights in the Canadian
Charter of Rights and Freedoms: a Manual of Issues and Sources. Carswell,
Tarnopolsky, W. and G. Beaudoin. The Canadian Charter
of Rights and Freedoms Commentary. Carswell, Toronto, 1982.
Caisse Populaire Laurier dOttawa Ltée v.
Guertin et al. (1983), 150 D.L.R. (3d) 541 (Ont. H.C.)
Chiarelli v. Canada (Minister of Employment
and Immigration) (1992), 5 S.C.R. 711
Gushue v. The Queen,  1 S.C.R. 798
Harvey v. New Brunswick (Attorney General),
 2 S.C.R. 876.
Kienapple v. R.,  1 S.C.R. 729
Kindler v. Canada (Minister of Justice),
 2 S.C.R. 779
Lyons v. The Queen,  2 S.C.R. 309
R. v. Askov,  2 S.C.R. 1199
R. v. Bain,  1 S.C.R. 91
R. v. Belliveau (No. 2) (1984), 12
W.C.B. 191 (F.C. T.D.)
R. v. Bennett (1991), 3 O.R. (3d) 193 (Ont.
R. v. Bray (1983), 2 C.C.C. (3d) 325 (Ont.
R. v. Brown,  3 S.C.R. 749
R. v. Chaulk,  S.C.R. 1303
R. v. CIP Inc.,  1 S.C.R. 843
R. v. Collins; R. v. Pelfrey,
 2 S.C.R. 1104
R. v. Corbett,  1 S.C.R. 670
R. v. Crooks (1982), 8 W.C.B. 107 (Ont.
R. v. Curtis, 1998,  O.R. (3d) 135.
R. v. Downey,  2 S.C.R. 10
R. v. Dubois (1984), 11 W.C.B. 406 (Alta.
R. v. Ellis-Don Ltd. (1990), 76 D.L.R.
(4th) 347 (Ont. C.A.)
R. v. Généreux,  1 S.C.R. 259
R. v. Goltz,  3 S.C.R. 485
R. v. Ingebrigtson (1990), 76 D.L.R. (4th)
R. v. Kalanj,  1 S.C.R. 1594
R. v. Keegstra,  3 S.C.R. 697
R. v. Kuldip,  3 S.C.R. 618
R. v. L. (W.K.),  1 S.C.R. 1091
R. v. Laba,  3 S.C.R. 965
R. v. Lee,  2. S.C.R. 1384
R. v. Lippé,  2 S.C.R. 114
R. v. MacDougall,  3 S.C.R. 45.
R. v. Mannion,  2 S.C.R. 272
R. v. Morales,  3 S.C.R. 711
R. v. Morin (1990), 76 C.R. (3d) 37 (Ont.
R. v. Oakes,  1 S.C.R. 103
R. v. Osolin,  4 S.C.R. 595
R. v. Pearson, , 3 S.C.R. 665
R. v. Phillips (1996), 108 c.c.c. (5d)
R. v. Potvin,  S.C.R. 880
R. v. Prince,  2 S.C.R. 480
R. v. Richard,  3 S.C.R. 525.
R. v. Ryan (1982), 2 C.R. 31 (Nfld. Prov.
R. v. Smith,  1 S.C.R. 1045
R. v. Valente,  2 S.C.R. 673
R. v. Van Rassel,  1 S.C.R. 225
R. v. Vermette,  1 S.C.R. 985
R. v. Whyte,  2 S.C.R. 3
R. v. Williams,  1 S.C.R. 1128
R. v. Wigglesworth,  2 S.C.R. 541
R. v. Zurlo (1990), 57 C.C.C. (3d) 407
Re Mitchell and R. (1983), 42 O.R. (2d)
Shubley v. The Queen (1990), 65 D.L.R.
(4th) 193 (S.C.C.)
Soenan v. Thomas (1983), Can. Charter of
Rights Ann. 17-9 (Alta. Q.B.)
Thomson Newspapers Ltd. v. Canada (Director
of Investigation and Research, Restrictive Trade Practices Commission,
 1 S.C.R. 425
Warden of Mountain Institution v. Steele,
 2 S.C.R. 1385
Wholesale Travel Group Inc. v. The Queen,
 3 S.C.R. 154
* The original version of this Current Issue
Review was published in February 1992. The paper has been regularly updated
since that time.