There are two essential stages to any challenge under the Canadian Charter of Rights and Freedoms. In the first stage, the claimant, working with his or her criminal defence lawyer, must show that it is more likely than not that his or her Charter rights were breached. In the second step the burden of proof switches to the Crown, and the Crown must show that it is more likely than not that the breach was justified under s.1 of the Charter.
Section 1 of the Charter limits all of the other rights in the Charter. It states that “[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” If the government passes a law that breaches the constitution, they can invoke s. 1 to argue that the breach is nonetheless justified in a free and democratic society.
Section 1 contains two requirements that the government must satisfy to show that the Charter breach is justified. In the first step the government must show that the breach is “prescribed by law”. This is a normally straightforward threshold criterion that basically requires that the limit have the “form of law”. In essence, it serves a gatekeeper function, limiting the number of instances where an infringement can be upheld. To be “prescribed by law”, the rule must be accessible and intelligible to the citizen. Both values fall under the more general concept of notice: to be “prescribed by law” the rule must be promulgated. In R. v. Therens, the Supreme Court of Canada explained what is meant by the requirement that the rule be “promulgated”; the rule will be “promulgated” and thus “prescribed by law” within the meaning of s. 1, if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from the application of a common law rule.
To be prescribed by law, the law must be “intelligible”, which means that citizens must be able to understand the effects of the law, including the nature of the behaviour which would constitute a breach of the law. This means that the law cannot be overly vague. However, courts have preferred to deal with the claim that a restriction is too vague or too broad at stage 2 of the s. 1 inquiry. In Osborne v. Canada (Treasury Board), the Supreme Court explained that vagueness has s. 1 significance in two ways: (1) a law may be so uncertain as to be incapable of being interpreted so as to constitute any restrain on government power. In these circumstances there is no “limit prescribed by law” and no s. 1 analysis is necessary because the threshold has not been met and (2) a law which passes the threshold test may, nevertheless, by reasons of imprecision, not qualify as a reasonable limit. This concept will arise under part two of the test.
At stage 2 the government must justify that the breach is “reasonable” and “demonstrably justified in a free and democratic society”. In 1986 in R. v. Oakes the Supreme Court of Canada formulated a test that the government must follow to prove that this requirement is met. At the first step of the Oakes Test, the government must show that there was a “pressing and substantial purpose” behind the law. In other words, the objective of the law must be of sufficient importance considering that the law has the effect of limiting an individual’s Charter rights. Though the court has said that the standard at this first step must be high to ensure that trivial objectives are not protected, in practice, the court rarely finds that the restriction fails the first step.
The second step of the Oakes test is a proportionality test. This step has three substeps – all of which the government must address. First, the government must show that the law was carefully designed to achieve the objective identified in step 1 of the Oakes test. The law must be fair and not arbitrary. The limit it imposes must be “rationally connected” to its objective. For example, if the government were to make a law against visiting South America, and then identify their objective as “protecting endangered species”, the court would likely find that the law was not rationally connected to its purpose since visiting South America has little to do with the general goal of protecting endangered species. Though the purpose of protecting endangered species would likely be considered “pressing and substantial” under part 1 of Oakes, the law against visiting South America would not be a clear and effective way of protecting that objective. At the second sub- stage of the proportionality test, the government must show that the law is minimally impairing. In other words, the law must be designed to limit the rights and freedoms of Canadians as little as reasonably possible. The law against visiting South America in our example from before would also fail at this stage of Oakes. There are other ways to protect endangered species that limit individual freedom much less than the law proposed in this example. For example, the government could ban imports of goods made using endangered species. Thus, the law against visiting South America would be seen as much to harsh, impairing, or limiting. At the final substep of the proportionality test the government must show that there is proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. Even if the government establishes that there is an important objective, the severity of the limit may be so great as to outweigh the benefit. This test operates on a sliding scale; the more severe the deleterious effects of the measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. In our South America example, it would be clear that the law was extremely limiting on people’s freedom, yet the degree to which it accomplished the purpose of protecting endangered species was small (people, other than Canadians, could still harm endangered species in South America). The law would be seen as disproportionately harsh compared any benefit it could be expected to create.
Know your rights. Contact Kostman and Pyzer, Barristers, if you need a Toronto criminal lawyer or are charged with a criminal offence.
Section 11 of the Charter guarantees every individual certain rights when they are charged with a criminal offence. Section 11 applies to all types of offences (criminal, quasi-criminal, and regulatory offences). Section 11 protects individuals as they navigate their way through the criminal justice system, from the moment they are charged until their matter is resolved. Different rights attach to the individual at different stages of the proceedings. There are nine specific rights enumerated in s. 11:
- The right to be informed without unreasonable delay of the specific offence you are being charged with;
- The right to be tried within a reasonable time;
- The right not to be compelled to be a witness in the proceedings against you;
- The right to be presumed innocent until proven guilty in a court of law
- The right not to be denied reasonable bail without just cause;
- The right to be tried by jury for any offence where the maximum punishment is imprisonment for five years or more;
- The right not to be found guilty on account of any act or omission unless that act or omission constituted an offence under Canadian or international law at the time the act was committed;
- The right not to be tried again for an offence for which you have already either been acquitted or convicted and punished; and
- The right to benefit from the lesser punishment in situations where the punishment for the offence has been varied between the time of commission and the time of sentencing.
The rights in s. 11 are a response to inherent inequalities in the criminal justice system. When an individual is charged with a crime, he or she is suddenly thrust into a legal battle with the state. However, the state has significant financial, investigative, and prosecutorial resources, giving it a considerable advantage. The rights enshrined in s. 11 provide the accused person with constitutional protection throughout his or her prosecution to offset this advantage.
If the state fails to meet its obligations under s. 11, a criminal defence lawyer can raise the issue at trial in order to argue that the accused person has been unfairly treated by the state. This will sometimes lead to a remedy under s. 24 of the Charter (see our blog on Charter Remedies).
Section 11(a): The right to be informed without unreasonable delay
Section 11(a) of the Charter is premised on the legal principle that every accused person is entitled to know the nature of the allegation against them at an early juncture so that they can make informed decisions in their defence. This is an essential aspect of the common law conception of a “fair trial”. It would be absolutely impossible for an individual to begin to prepare a defence if he or she did not know the charge against him or her. Thus, s. 11(a) ensures that an individual is able, along with a criminal defence lawyer, to begin to prepare a defence as soon as they are arrested.
In The Queen v. Nijhar the Supreme Court of Canada confirmed that if multiple charges have been laid against the accused, an agent of the state must inform the accused of all the charges. The Charter does not require that the accused be notified of the charges in writing. Section s. 11(a) guarantees the right to be informed of the specific offence an individual is charged so that they are in a position to refute and respond to the specific allegation as opposed to criminal activity generally.
Section 11(b): the right to be tried within a reasonable time
Section 11(b) provides that every person has a right to be tried within a reasonable time. What constitutes a reasonable time will vary from case to case. However, generally speaking, this provision protects against unnecessary, irresponsible or flagrant delay on the part of the prosecution. In R. v. Rahey, the Supreme Court explained that s. 11(b) “protects against an overlong subjection to a pending criminal case and aims to relieve against the stress and anxiety which continue until the outcome of the case is final”. Without s. 11(b) the state would be free to cause unnecessary delay for strategic reasons, and the individual would have no recourse where a prosecution is less than diligent. Section 11(b) ensures that a prosecution moves along at a reasonable pace without undue prejudice to the person who is the subject of the prosecution. This Charter right recognizes that criminal proceedings are very stressful and disruptive to an individual’s life, and seeks to minimize that effect.
In R. v. MacDougall the Supreme Court confirmed that that the s. 11(b) right applies until the individual has been sentenced. Thus, the protection in s. 11(b) could be invoked to remedy an unreasonable delay between judgment and sentencing.
Section 11(c): the right not to be compelled as a witness in a proceeding against you
Section 11(c) is the constitutional recognition of the common law principle against self-incrimination. The purpose of s. 11(c) is to prevent the prosecution from forcing individuals to supply the evidence that could be used to convict him or her. Historically, Canadian society has considered self-incrimination to be an affront to the every human being’s inherent right to personal dignity and privacy. Section 11(c) is closely related to the right in section 11(d), which states that every individual is presumed innocent until proven guilty. Together, ss. 11(c) and (d) create a constitutional obligation on the state to prove their case beyond a reasonable doubt. In practice, this right guarantees that the Crown cannot force you to testify as a witness at your own trial. The decision to testify in your own defence rests entirely with you. Every defendant is entitled to refrain from testifying. The court cannot infer guilt from an accused’s decision not to testify at his own trial.
Section 11(d): the right to be presumed innocent until proven guilty in a court of law
The Supreme Court of Canada has referred to this constitutional right as “the golden thread” that runs through the criminal law. The burden is always on the prosecution to prove a criminal case. The presumption of innocence acts as a shield to protect an individual where the evidence falls short of proof beyond a reasonable doubt. Section 11(d) entrenches the long standing common law principle that no person can be convicted if there exists a reasonable doubt that they committed the offence. It is because of s. 11(d) that the court is constitutionally required to prove every element of the offence beyond a reasonable doubt and also to disprove the validity of any defence beyond a reasonable doubt. The Supreme Court has ruled that it would contravene s. 11(d) if the defence was required to disprove an element of the offence or to prove the existence of a defence. Thus, at minimum, the defence must show that the case, as presented by the prosecution, leaves a reasonable doubt as to whether the defendant is guilty.
Section 11(e): the right not to be denied reasonable bail without just cause
Section 11(e) is also closely related to the right to be presumed innocent until proven guilty. Section 11(d) tells us that every individual must be presumed to be innocent and section 11(e) speaks to the issue of an accused person’s liberty before trial. Generally speaking, innocent individuals should not be deprived of their liberty prior to conviction for the offence. Section 11(e) guarantees every person’s right to liberty as they await a criminal trial. For obvious public safety reasons, in some cases it is impossible to allow the defendant to remain at liberty. That is why s. 11(e) allows the state to continue to detain the individual in some cases – but only when they have “just cause”.
The term “reasonable bail” refers to the terms of the bail, such as the quantum of bail and the restrictions placed on the accused’s liberty while he or she awaits trial. These must be “reasonable” so as to avoid infringing on the accused’s liberty in an unfair or arbitrary manner. The requirement that the state have “just cause” refers to the right to be released on bail. According to the Criminal Code, there are only three reasons that the accused may be denied bail: if he or she is a danger to the public safety, if he or she is likely to flee the jurisdiction, or if his or her release would erode public confidence in the administration of justice (see our blog, “Bail: the Tertiary Ground for more information). If the Crown can establish that any of these three grounds are present in the case at bar, that will constitute “just cause” for denying bail.
Section 11(f): The right to be tried by jury for any offence where the maximum punishment is imprisonment for five years or more
Section 11(f) gives the denfendent the right to elect to be tried by jury if they are charged with a crime for which the maximum punishment is more than five years. For administrative reasons, it is virtually impossible to allow individuals to elect to be tried by jury for minor offences. However, the right to be tried by a jury of your peers is one of the oldest and most important common law principles. Since the decision of a jury must be unanimous, juries add an institutional safeguard to the trial process by requiring the prosecution to convince twelve individuals of the defendant’s guilt – instead of just one judge. Section 11(f) recognizes the benefits of trial by jury and allows the accused to take advantage of those benefits. However, the defendant is free to choose to forego the “benefit” of a jury, if he or she feels it is in his or her best interest to do so. Though trial by jury is generally an advantage for the accused, criminal defence lawyers tend to recommend that the accused waive his or her right to be tried by jury in certain situations, for example, when a person is accused of a particularly shocking and horrendous crime which might prejudice the jury against the accused such as a sexual or violent crime against a child.
Section 11(g): The right not to be found guilty on account of any act or omission unless that act or omission constituted an offence under Canadian or international law at the time the act was committed
Section 11(g) contains a simple but important right. Because of s. 11(g), the criminal law can never apply retroactively. Essentially, this means that no person can be convicted of an action alleged to constitute an offence that was not illegal at the time the defendant committed it. For example, if the government were to pass a law tomorrow saying that it is illegal to purchase a handgun, it could not then arrest every individual who purchased a handgun before the law was enacted. It could only arrest those individuals who purchase handguns after the law comes into force.
Section 11(h): the right not to be tried again for an offence for which you have already either been acquitted or convicted and punished
Section 11(h) essentially enshrines what criminal lawyers and other legal professions refer to as the rule against “double jeopardy”. This rule means that an individual cannot be tried a second time for the same crime on the same set of facts. If the individual was acquitted of the crime, he or she cannot be tried again, even if the police find new evidence against the person.
However, the double jeopardy principle does have some important qualifications. Unlike in the United States, in Canada the double jeopardy principle does not prevent the prosecution from appealing an acquittal at trial. In the US, if the accused is acquitted at the trial stage, the District Attorney’s Office cannot appeal the acquittal to a higher court (if the accused is convicted at trial, he or she does have the right to appeal). In Canada, the Supreme Court has ruled that s. 11(h) does not apply until the trial has been “fully concluded”. A trial cannot be fully concluded until either side has exhausted its ability to appeal. Thus, any appeal is deemed to be an extension of the trial and not a new trial. The Court of Appeal does not have the power overturn a verdict and enter a new verdict. At most, the Court of Appeal can order that a new trial be conducted. The Supreme Court has likewise ruled that a new trial in these circumstances is an extension of the original trial and does not constitute a breach of s. 11(h). Moreover, if you are tried for a criminal offence, s. 11(h) does not preclude you from facing other types of legal proceedings arising out of the same facts that led to your criminal charge. For example, if you are convicted of assault in a criminal court, the victim can sue you in the civil court and the civil suit will not constitute a breach of s. 11(h).
Section 11(i): the right to benefit from the lesser punishment in situations where the punishment for the offence has been varied between the time of commission and the time of sentencing
The final right articulated in s. 11 of the Charter is relatively straightforward. It simply states that where the punishment has changed between the time the offence was committed and the time a person is sentenced, the lesser punishment applies at the time of sentencing. This only applies until the time of sentencing. If the law is changed to impose a lighter penalty after the defendant is sentenced, he or she cannot invoke s. 11(i) to appeal his or her sentence. Finally, s. 11(i) has no application to civil penalties even if they flow from a criminal conviction (for example, the suspension of an individual’s driver’s license after a impaired driving conviction).
Know your Charter rights. Call Kostman and Pyzer, Barrisers, toronto criminal lawyers who are experienced and skilled. 416-658-1818