Toronto Criminal Lawyers Blog

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.

Most people know that for an individual to be convicted of a criminal offence, the Crown must prove his or her guilt “beyond a reasonable doubt”. At the same time, people are often confused over the exact meaning of the phrase “beyond a reasonable doubt”. In a criminal trial, the verdict rests on the meaning of these words.

The bad news is that there is no exact universally-accepted definition of the phrase “beyond a reasonable doubt”. Judges and legal scholars (also known as “jurists”) have been writing for centuries on the best way to explain exactly what the court means when they speak of a reasonable doubt. Individuals tend to “have a feeling” of what reasonable doubt is, but often find it very hard to articulate what the phrase means in the context of a trial. In R. v. Lifchus, the Supreme Court of Canada (“SCC”) stated that, in the context of a trial, the phrase “beyond a reasonable doubt” has a specific legal meaning which should not be confused with its ordinary every-day meaning. Thus, our understanding of reasonable doubt must be much clearer than a mere “feeling”; we must be able to articulate a definition of reasonable doubt so that the concept is applied in the same way by all judges and jurors. The good news is that a number of legal decisions have articulated to a much more precise definition of this important legal term.

Much of the debate over the meaning of the phrase “beyond a reasonable doubt” has evolved out of appellate decisions both in the provincial Courts of Appeal and in the Supreme Court of Canada. That is because the adequacy of a judge’s explanation to the jury as to the definition of “beyond a reasonable doubt” is an issue that often arises on appeal. In cases which are heard by a judge and jury, the judge must “charge” (i.e., instruct) the jury on points of law before the jury is sequestered to reach a verdict. One of the points of law upon which a trial judge must instruct the jury, is the meaning of the phrase “beyond a reasonable doubt”. Sometimes, the Crown or Defence may argue on appeal that the trial judge’s charge to the jury on this issue misled the jury as to the burden of proof, and that such error resulted in a miscarriage of justice. For example, in Lifchus, the judge instructed the jury to think of the concept of “reasonable doubt” in the ordinary everyday sense of the word. On appeal, the SCC concluded that this instruction misled the jury, and that instead the judge should have instructed them on the precise legal meaning of “reasonable doubt”. Appeals such as the Lifchus case provide further direction to trial judges on the meaning of the phrase “beyond a reasonable doubt”. These legal opinions lead us to a clearer understanding of the term.

The standard “beyond a reasonable doubt” requires more than a hunch that the accused committed the crime but less than absolute certainty. In the landmark case, Woolmington, the House of Lords (the highest court of appeal in England) described the standard as 75 to 99% certainty. Years later in the case R. v. W. (D.) the SCC had the opportunity to comment on the meaning of reasonable doubt. In W. (D.) the SCC considered the relationship between reasonable doubt and the case built by the defence. They concluded that the jury need not believe all of the defendant’s evidence to find that there is reasonable doubt as to his or her guilt. There is a danger that the jury will interpret reasonable doubt as coming down to an evaluation of who they believe more, the Crown or the accused. If the jury were to interpret the phrase that way, establishing “proof beyond a reasonable doubt” would require that the Crown do no more than built a case that is slightly more likely or slightly more credible than the defense’s case. In W. (D.) the SCC points out that this type of reasoning “excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused’s evidence in the context of the evidence as a whole, may still have a reasonable doubt as to the accused’s guilt”. This could happen in situations where – despite the accused’s lack of credibility – the Crown case is simply too weak to support a finding of guilt. W. (D.) tells us a little more about the meaning of the phrase “beyond a reasonable doubt”, by explaining that if the jury (i) believes the accused’s evidence or (ii) does not believe the accused evidence but nonetheless is left in a state of reasonable doubt as to the accused’s guilt after considering his evidence in the context of the evidence as a whole, they must acquit.

During a trial, the burden of proof is on the Crown to prove that the accused committed the crime beyond a reasonable doubt. The Crown must establish all the elements of the offence beyond a reasonable doubt. For example, if the offence alleged is “assault causing bodily harm” the Crown would have to prove not only that an assault took place beyond a reasonable doubt, but also that the injuries inflicted during the assault meet the legal definition of “bodily harm” beyond a reasonable doubt. (Of course, an accused could be convicted of the included offence of assault.) Moreover, the Crown must also prove that the accused had the mens rea (or “guilty mind”) required to commit the offence beyond a reasonable doubt. For example, if the offence is assault, the Crown would have to prove that the accused intended to assault the victim beyond a reasonable doubt.

The high burden of proof placed on the Crown is a reflection of the presumption of innocence — the “golden thread that runs through the criminal law”. If the state does not discharge its duty and prove that the accused is guilty beyond a reasonable doubt, the presumption of innocence remains intact and the defendant must be acquitted.