SOME CONCERNS RELATING TO THE

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

by

D. W. PERRAS, Q. C.

)

SOME CONCERNS RELATING TO THE

CANADIAN CHARTeR OF RIGHTS AND FREEDOMS

TABLE OF CONTENTS

I. INTRODUCTION ..•.••.•...••••.••..•.•.•.•••. page 1

II. CHARTER GENERALLy....... • . • . . . . . . . . • . . ... page 4

ill. SOME SPECIFIC CONCERNS RELATING TO THE CHARTER

1.

2.

3 •

4.

Section 1

Section 7

Section 8

Section 9

· ...................... . • •••••••••••••••••••• • 0' •

· ....................... . · ...................... .

page 6

page 9

page 13

page 21

5. Section 10 ....................... page 25

6. Section 11 ....................... page 28

7.

8.

9.

10.

ll.

12.

13.

Section II (c)

Section II (e)

Section II (f)

· .................. . · .................. . · .................. .

Section 12

Section 24

Section 32

Section 52

· ..................... . · ..................... . and 33 ............... .

· ..................... . 14. RETROACTIVITY RELATING TO THE

page 33

page 36

page 38

page 38 page 40

page 47

page 48

CHARTER. page 49

IV. CONCLUSIONS

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SOMK CONCEBNS RELATING TO THE

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

I. INTRODUCTION

The Canadian Charter of Rights and Freedoms is

contained in the. Constitution Act 1-981 t Part I, Schedule B.

As this paper was being prepared the House of Lords

gave third reading to the Bill. Undoubtedly, sometime

in 1982 the Canadian Charter of Rights and Freedoms will

be -applicable in Canada.

Our -Charter of Rights after a great length of

labour (which almost resulted in a still birth) will

breathe and take life and nurture from the Canadian

judiciary. To say that the making of the Charter of Rights

was surrounded by controversy, is to put a polite and bland

stamp upon the negotiations. One well known public

observer labelled the Constitution, brought about by

wheeling and dealing at the last moment at 3:30 a.m., as

a "Constitution born of adultery ... l Nevertheless, Canada

will have a Charter of Rights and Freedoms, which accord-

ing to section 52, IIis the supreme law". Hence the Charter

will have a far greater impact upon Canadians than the

anemic Bill of Rights passed in 1960.

The Charter creates new substantive rights as

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well as new procedural rights.,. that come into play at the

time of investigation, at the time of arrest or detention

and, at the time of trial.

Fortunately or unfortunately, the language

used from time to time in the Canadian Charter bears a

striking resemblance to the language used by the Americans

when they adopted their Bill of Rights in 1791. The effect

of this close similarity in phraseology between the

Canadian and the American Bill of Rights invites, actually

begs, comparison. The invitation to compare is all the

more compelling because of the vast body of American

legal precedent that has been built up over the last

150 years, particularly by the United States S~preme Court.

In my view the temptation for Canadian lawyers and the

judiciary as well to dip into American law will be imposs­

ible to resist., However, I would sound a note of warning.

May I sugges't we proceed wi th caution and develop a

Canadian approach to our Charter, as apposed to adopting

American excesses, (sometimes quite amusing} because of

our zeal to be perceived as a liberalized modern day

"with it" country.

When one takes a cursory look at the history

surrounding the conception of the Arnercian Constitution,

it is noted that the basic aim of the delegates, who

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gathered at State House in Philadelphia in September of

1787, was to -build a political frame work to protect

property against revolutionary-' expropriation and to

l 'b f ' 1 2 secure 1. erty rom a tyrannl.ca ggvernment.- The

delegates were lead in their historic deliberations by

General George Washington, and assisted by other very

famous men- such as Benjamin Franklin and Alexander

Hamilton, to name seve'ral. The American Constitution

was signed by 39 delegates (20 of whom were lawyers)

on September 17, 1787. By June 21st, 1788, nine states

had ratified and the Constitution became e'ffective. The

Bill of Rights (the first 10 amendments)· was promised to

allay criticism and attract state ratification. In

November of 1791 the first ten amendments were added

and became effective December 15, 1791, in a frontier

nation.

The Canadian Charter, it is fair to say, has

not been created out of a need for protection from

revolutionary expropriation or a tyrannical government.

The motivation behind Canada's Charter is not so easily

understood. The thrust for a Charter in Canada appears to

be motivated much more for political and -economic reasons

than as- a result of the needs of the people living in

a highly technological era.

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In sport, the similat_;ity b~tween_ toe. United.

States and Canadian Charters is absolutely remarkable,

bearing in mind the circumstances surrounding the birth

of each.

In any event, I propose -to examine key areas

of the Charter and in so doing hopefully. to better

understand the rights, freedoms, duties, responsibilities

and procedures that flow- from the Charter. Where

possible, time and space permitting, I will try to make

known my COncerns having regard to Anglo-American practice

and precedent.

It is my intention to focus on-the Charter

generally, and· in particular on sections 1, 7 to 14,

24, 32, 33, 52 and on the aspect of retroactivity.

II. CHARTER GENERALLY

To begin with, it is noted Canada is founded on

the supremacy of God and the rule o-f law. -I am not sure

of the significance of the suprema_cy of God, but am

reassured by the statement regarding the rule of law.

Obviously western democracy is based upon the rule of law.

The "rule of law" is only as good as those who administer

justice, therefore, I suggest we must bend every effort

to bring common sense and decency to our Charter.

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One rather major change that appears to flow

from the Charter is the power the Charter gives to the

judiciary 0, It would appear that,-the courts will now have

power to strike down laws made by parliament or the

legisla-ti.J.res. If ·this observation is correct, then such

"striking power!! is a radical departure from democracy

as wee understand it in Canada. For eJ{ample, under section

-~a court could strike down a limitation on a right or

freedom on the footing that such limitation was not

reasonable nor justifiable in our democractic society.

Whatever test is used to determine unreasonable limits

must be carefully crafted, otherwise the decision to

strike down becomes subjective and therefore unpredictable.

The Charter also provides for some new rights

as well as enshrining pre-existing rights and freedoms.

In addition, new procedures are prescribed but without

ve-ry much in the way of guidelines. Obviously, everyone

will be anxious and puzzled at times by the new legisla­

tion and how best to make it work. For example, everyone

charged with nan offence" has a guaranteed right lito be

tried ·within a reasonable time". What is a reasonable time?

When does time start to run? What happens if the trial

doesn't proceed in a reasonable time? Does it matter

haw;" the delay was caused. When will an applicant

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under section 24'move to exclude evidenqe, obtained by

infringing or denying -rights under the Charter? Will

the application be made before trial or during trial?

Such questions remain to be answered by the judiciary

who will be early taxed with numerous and sundry such

problems, including such exotic questions as whether

derivative or secondary evidence is admissible even though

primary evidence is excluded pursuant to the provisions

of section 24.

In passing, it is noted that the American Bill

of Rights has no limiting provision comparable to that

which appears in section I. Nor do the Americans have

an equivalent to our section 32, and the U.S. Bill of

Rights definitely does not have an equivalent to our

section 33 (the notwithstanding clause).

Finally, our Canadian Bill of Rights, while

subject to legal interpretation from time to time, has

not provided or generated a great deal of litigation,

but nevertheless has provided some useful decisions to

perhaps help in determining the path our Charter will

follow.

III. SOME SPECIFIC CONCERNS RELATING TO THE CHARTER

1. SECTION I

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The first specific section that I would like to focus on·is section I, which guarantees the Charter

rights and freedoms subject to reasonable limits prescribed

by law demonstrably justified" in a democracy.

There are- several important features about

section I. First, it guarantees rights and freedoms.

Secondly, the section provides for reasonable limits upon

rights and freedoms. The limitation feature in section

I is not duplicated in the American constitution and makes

common sense. The Charter in effect-is attempting to

strike a balance between the individual and the good of

society. Thirdly, section I presumably provides the

judiciary with power to strike down unreasonable limits

placed on the guaranteed rights and freedoms.

There are many questions about section I, for

example, what is encompassed in the term IIlaw"? Does it

include case- law, statute law, regulations, Orders-in-

Council, common law, all of these, or only some? Who

has the onus if there is an issue about a limitation on

a right or freedom? What standard does the onus impose

upon the applicant? How does one establish that a

reasonable limit prescribed by law is demonstrably

justified in a free and democractic society?

Perhaps a test for resolving an issue r_elating

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to limitations on rights might include-the" following

factors:

(i) is the lim! t based in law

(ii) has the party supporting the l-imi t satisified the court that the limit is proper in a democracy; like Canada, having regard to the rights of society and the individual

(iii) if society is threatened by the right or freedom then the limit must prevail.

The final observation on section I is that it

must be borne in mind that section I applies to all

sections of the Ch~rter and therefore to all rights and

freedoms.

In closing, On this section it is my earnest

submission that our judiciary not follow the American

pattern of striking down legislation as was done in

Griswold v. Conn. (1965) 381 U.S. 479. In Griswold

the U.S. Supreme Court struck down state legislation

and in so doing, in my view, used an excessive but

amusing reach by saying;

liThe foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed -by emanations from those guarantees that help give them life and substance ..• various guarantees create zones of privacy. il

Justice Douglas went on to remark that the Conn. state

legislation invaded one of the zones of privacy and there-

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fore was unconstitutional.

The prospect of our Charter having penumbras

formed by emanations from the guarantees is a little

star.tling to say the least. In short,r my concern here

is that the judiciary use common sense, and proceed

cautiously before striking down legally prescribed laws

that place limits upon the guaranteed rights and freedoms.

No right or freedom can exist in a vacuum, nor attain

a state of "untouchableness" or be absolute.

I am reminded of one of Ogden Nash's poems.

It runs something like this:

"Consider the Auk: Becoming extinct because he forgot how to fly, and could only walk. Consider man, who may well become extinct Because he forgot -how to walk and learned how to fly before he thinked. 1I

2. SECTION 7

The next specific area of concern is

section 7. This section, in some respects, is a lot

like the American 5th amendment. Our section gives

the right to life, liberty and security of the person.

It further provides that any deprivation of the above

rights can only be accomplished in accordance with the

principles of fUndamental justice. The Amercian amend-

ment provides that there can be no deprivation of life,

liberty or property without ·'due process of law".

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The obvious guestion here is what is

meant by the phrase "principles of fundamental justice"?

Is this phrase to be equated with the American 5th

amendment phrase "due process of law"? In any event,

what is meant by either phrase, that is what is included

in the term?

Looking first at the American scene, while

interesting, is not terribly illuminating in terms of

defining, with precision, the term "due process".

In Twining v. New Jersey 1908 211 u.s. 78 due process

is equated with an ancie-nt procedure and fundamental

principles. Palko v. Conn. 1937 302 U.S. 319 equates

due process with fundamental fairness-a universal sense

of justice. Herbert v. Louisiana 272 U.S. 312

equates "due process" with "fundamental principles of

jus.tice which lie at the base of all our civil and

poli tical institutions". More recently Betts v. Brady

1942 316 U.S. 455 proferred a test as follows:

"does the conduct of ·the police or the prosecution or the conduct of the trial after an appraisal of the totality of the facts consitute a denial of fundamental fairness shocking to the universal sense of justice."

Ten years later in Rochin v. Calif. 1952 342 U.S. 165

the united States Supreme Court in considering the

nature of due process remarked;

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IIdoes the proceedings offend those canons of the decency and fairness which express the notions of justice of English speaking peoplesll ... standards of justice are -not authoritatively formulated anywhere as though they were specifics ... so rooted in 'the traditions and conscience of our people as to be ranked as fundamental or implicit in the concept of ordered liberty.1I

While the American caSes are not precise,

it is clear that the heart of due process is fairness.

The Canadian scene is not replete with

judicial writings on the te,rm "fundamental justice".

However, the 70lS saw several occasions to consider the

phrase. In Hogarth (1972)·7 C.C.C.(2d) 567 the court

held notice was required pursuant to the principles of

fundamental justice. In Lowry and Lepper (1972) 6 C.C.C.

(2d) 531 the Supreme Court held that an accused had been

denied a II fair hearing II when he had not been given an

opportuni ty to be heard on sentencing at the Court of

Appeal level after a -conviction was entered on appeal.

In Gilberg and The Queen (1974) 15 C.C.C. (2d) 125

the Alberta Court of Appeal held that a refusal of an

adjournment to an accused charged with a serious offence,

and who was not responsible for any delay in the proceedings,

was denied natural justice including his right to make

full answer and defence. On the other hand, in Re Ewing

and Kearney and The Queen (1973) 15 C.C.C.(2d) 107

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the B.C. Court of Appeal,held that tpe accused were not

depri ved of a fair he_arin9 in accordance with the principles

of fundamental justic~, where trial proceeded in

absence of counsel for accused. Apparently they were

unable to retain counsel.

Perhaps our Supreme Court in Duke v. The

Queen 1972 18 C.R.N .. 8. 302 stated it best in considering

the term "fundamental justice" when the court held that

this means;

(i) (ii) (iii) (iv) (v)

- act fairly - in good faith - without bias - with judicial temper

allo\'d.ng the parties to state their case

In summary then, in all likel~hood the

phrase "principles of ,fundamental justice ll will be

equated with the American term "due l?rocess II. In my

view the only real difference will be in the emphasis

given to the phrase, that is will Canadian courts opt

for a very liberalized ,interpretation or a moderate

interpretation along the_ lines of the Duke case.

My concern here is that our judiciary not

get carried away with their new found power to the point

of excess that leaves the general public wondering

just what service does the judicial system provide in

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in a democracy. Again a plea for common sense is not

out of order having regard to the uncertainty wrought

by the American courts in their unrelenting ultra

technical approach to the administration of justice.

3. SECTION 8

Our next excursion is to view section 8,

which simply put is that everyone has the right to be

secure against unreasonable search or seizure. Section

8 looks very simple and straight forward. However, our

section 8 is quite similar to the American 4th amendment,

which says the people are to be secure in their persons,

houses, papers and effects, against unreasonable searches

and seizures and no warrants shall issue but upon probable

cause.

Both -the Amercian Bil-l of Rights and the

Canadian Charter look simple and straight forward, i.e.

securi ty from unreason-able search and sei zure.

The American 4th amendment has spawned a

great deal of litigation about the- efficacy of searches

and seizures, warrant authorized or otherwise. I have

no doubt that this section of our Charter, in combination

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with section I, 24, 32 and- 52 will also generate a great

number of issues that will fall to be examined under the

judicial magnifying glass. Even the dullest of us who

call ourselves barristers and solicitors and have licenses

to practice will be able to visualize an application

under section 24(2) to exclude evidence obtained by the

investigating authorities in cicumstances that suggest

unreasonableness. Or if you can not visualize that

application, perhaps an applicati,on under section 24 (2)

to exclude evidence of a provincial statute violation

obtained without warrant. In this latter situation,

one relys on section 32, which makes the Charter apply

to provincial l.egislation and section 52 which provides

that the Charter is supreme, unless of course, the

province is so bold as to invoke expressly section 33,

the so called !lnon obstante!l clause. In any event,

the pOint I am making here is that any lawyer worth a

whit and with half an imagination can foresee the

possibilities that arise for disrupting, and even

shattering the crown's case whether the offence is under

the Criminal code or some obscure provincial statute,

or municipal bylaw. Of course, those practicing lawyers

with- full imaginations will be able to foresee an

endless array of sectional permutations in the Charter

allowing them abundant opportunities to forestall a

success full prosecution against their innocent client.

In 1914 in Weeks v. U.S. 232 U.S. 383

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the U.S. Supreme Court held that evidence obtained by

an illegal search was ~nadmissible since the procedure

denied "due process ".

In 1949 the u.s. Supreme Court in Wolf v.

Colorado 1949 338 U.S. 25 refused to extend the Weeks

ruling ,to state courts dealing with state crime. The

Court noted, after an :,i!ndepth survey. of the law, that

thirty states had rejected the Weeks doctrine and that

the . _ten_ United Kingdom and British Commonwealth

jurisdiction who had considered the issue of illegally

obtained evidence held that if the evidence was relevant

-it was adtnissib:be. However, in 1961, because of an

astute Mi"ss Mapp, who refused three Cleveland police

officers admittance to her apartment without a warrant,

(the police forced an entry on the pretext of looking

for a bomber but- were satisfied to leave upon seizing

pornographic material) the U.S. Supreme Court had a

further opportunity to consider the issue of the admissibi­

lity of illegally obtained evidence. This time the court

held that- the evidence was inadmissible having been

obtained without warrant and that such rule applied

to state courts dealing with state crimes.

While the United States Supreme Court

pontificated the state courts fretted and grew increasingly

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uneasy about the Mapp rUling.

There is no doubt that the exclusionary

rule in the U.S. is the subject of growing criticism.

-(For example, see Wingo; "Qrowihg Disillusionment With

the Exclusionary Rule" S5 South W.L.J. 573; Wright,

IIMust the Criminal Go Free if the Constable Blunders?"

50 Tex L. Rev. 736.)

As a result of the impracticalness of the

exclusionary rule in the U.s. a number of exceptions

have developed. These exceptions often take the fopm of

ni fty little doctrines, for example, the "plain view

doctrine", as set out in Harris v. U.S. 1968 390 U.S. 234

where it was observed that:

"It has long been settled that objects falling in the plain view of an officer who has a right- to be in the position to have that view, are subject to seizure and may be introduced into evdience. 1I

The following is a list of exceptions,

by and large, to the exclusionary rule relating to search

and seizure:

(a) Stop and frisk in street encounters Terry v. Ohio 1968 392 U.S. 1

(b) Search incident to arrest Carroll v. U.S. 1925 267 U.S. 132

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) -for limitations on time and space see Chimel v. California 1969 395 U.S. 752

(c) Items in plain view Harris v. u. S. (supra)

(d) abandoned property Hester v. U.S. 1924 U.S. 57 and Abel v. U.S~ 1960 362 U.S. 217

(e)- Exigent circumstances (i) Hot pursuit

Warden Maryland Penitentiary v. Hayden 1967 387 U.S. 294

(ii) Report of presence of bomb People v. Superior Court of San Francisco 1970 6 Cal App. (3d) 379

(1 v) Shots from a building

(v)

People v. Robinson 1969, 269 Cal. App. (2d) 789

Fighting fire People v. Miller (1966) 245 cal. App. (2d) 112

(vi) Seizures at Transport terminals parish v. Peyton 1969 408 F 2d 60

(vii) Well being of person searched Vauss v. U.S. 1966 370 F 2d 250 (person found unconscious)

(f) Consent Schneckloth v. Bustamonte (1973) 36 L.Ed. 2d 854

(g) Border searches

(h)

U.S. v. Ramsey 1977 431 U.S. 606 Carroll v. U.S. (1925) 267 U.S. 132

Body (i)

searches in certairi circumstances custom ,searches Murgia v. U.S. 1960 285 F 2d 14

(H) Other State v. Ramos 1969 11 Ariz. App. 196

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(i) Stomach pumping It is to be noted this is a controversial procedure. See Rochin -V. california 1952 342 u.s. 165 anc Blefare v. U.S. 362 F 2d 870

(j) Blood tests or samples Schmerber v. California 1966 384 u.s. 757 It is noted this general approach

(in Schmerber) probably applys to urine samples, saliva, -hair et cetera.

The above examples _are but a few to

illustrate the numerous exceptions to the general rule

that unless 'evidence is seized pursuant to a warrant or

obtained on probable cause, it will not be admissible in

court proceedings. A cursory look at the cases flowing

from the fourth and fifth amendments to the U.S. Constitu-

tion is but a g~impse of the legal thicket that surrounds

the two amendments that give rise to a majority of cases

wherein the exclusionary rule is invoked during trial

or perhaps motions to suppress.

There is little in the way of canadian

legal precedent to assist the judiciary in interpreting

section 8. Such is not surprising since there is no

rule absolutely excluding illegally obtained evidence.

In Canada the rule has generally been that if the evidence

is relevant and probative it is admissible. However,

this approach may change, undoubtedly will change, some­

what simply because under section 24(2) the court can

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exclude evidence obtained by infringing or denying

Charter rights. I propose to deal at a later time with

the implications of section 24, therefore suffice it to

say that the potential for .an e&clusionary rule exists

in our Canadian Charter.

Several concerns relating ,to section 8

come to mind. First of all; I have a concern about the

drafting of warrants to s,earah and seize. My concern is

that from here on in the investigating authorities

and Crown be meticulous about establishing reasonable

grounds upon which to found a warrant. If the grounds

are not reasonable, the warrant will be attacked,

perhaps quashed, and of course, the Crown is then faced

with an application to exclude evidence. Perhaps,

rightly so, for I am given to understand that a very

substantial percen-tage- of search warrants issued are

defective (so says the Law Reform commission after a

recent survey) .

Another concern I have in this general area

relates to items seized during the course of a warranted

search, but not described or set out in the warrant.

Will these items be returned under the warrant? Will

-they be admissible -at any subsequent trial? To some

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extent section 445 o'f the Code may answer, the questioh­

since that section provides for seizure of unspec~fied

things upon reasonable grounds.

Perhaps a major-difference be~ween the

American and Canadian positions is the fact that the

Canadian Charter does not appear to insist upon a warrant

being obtained, since section 8 simply gives the right

to be secure against unreasonable search or seizure, while

the U.S. Bill of Rights provides against unreasonable

searches and seizures and provides that no warrants

~hall issue but upon probable cause.

The common feature, -relating to search and

seizure, in both Constitutions is the security against

unreasonable search and 'seizure. The unknown factor is

the presence or absence of a warrant in the Canadian

process. So far as I am able to ascertain the legal

approaches of the two countries are very dissimilar.

For example, in Rochin (supra) the U.S. Supreme Court

held evidence obtained by pumping the stomache of the

defendant to retrieve swallowed narcotics was so shocking

that the evidence could not be admitted. ,In Reynen v.

Antonenko 1975 20 C.C.C. (2d) 342 a Canadian court held.

in a civil proceedings, that a forced removal of drugs

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from the plaintiffs rectal passage did not constitute

trespass, or an invasion of privacy sufficient to attract

a damage award. However, in view- of the Canadian Charter

provisions one can only wonder if the decision would be

the s arne today.

In conclusion, the provisions of section 8

of the Canadian Charter will very likely spawn much litiga­

tion and ·.very likely provincial statutes that- allow

warrantless searches, without the necessity of reasonable

grounds, will in all probability be struck down as

-inconsistent with the Charter or perhaps on the footing

that such provisions are unreasonable limits upon the

right to be secure. Too, I submit there is sufficient

scope in our Charter and sufficient significant differences

between the Canadian and U.S.A. Cbnstitutions that there

will be no need to refer to eJ:{otic American cas.e law to :

develop a cornmon sense Canadian approach.

4. SECTION 9

Turning now to section 9, it is Observed

that everyone has the right not to be arbitrarily detained

or imprisoned.

Justice Arnup held in Lenitz v. Ryan (1972)

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9 c. c. c. (2d} 182 that arbitrary means being unreasonab,le

or capricious with no adequate determing principle or

standard. Standard dictionary definitions of arbitrary

support Justice Arnup's view. Such being the case then

it can be assumed section 9 is a guarantee against

unreasonable detention, arrest or imprisonment.

Of course, u.S. law is based on an inter­

pretation of the fourth amendment that requires IIprobable

cause II. However, the courts appear to equate the terms

lIunreasonable" and IIwi thout probable cause 11 • Berger v.

New York (1967) 388 u.s. 41. In U.S. v. Brignoni - Ponce

1975 422 U.S. 873 the U.S. Supreme Court held that the

fourth amendment applys to all seizures of the person

including seizures that involve only a brief detention

short of traditional arrest. TOO, the U.S. ,law (Beck v.

Ohio 1964 379 U.S. 89) encourages the obtaining of a

warrant becaus.e that provides for objective pre-determina­

tion of probable cause, as opposed to hind sight justifica­

tions and its short comings.

The. standard test in the u.S. is, would the

facts available to the officer at the moment of seizure

or the search, warrant a man of reasonable caution in

believ.ing that the action taken was appropriate - Terry v.

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Ohio 1968 392 U.S. 1. Perhaps the most succinct summary

of justifiable police intrusion :upon a citizen in a

public place is found in People v. Jackson 1980 72 App. Div.

(2d) 149 where the court held there were three levels of

intrusion short of arrest:

(1) an approach requesting information (2) a more intensive inquiry if activated

by a founded suspicion that criminal activity is afoot

(3) a forcible stopping and detaining"',when the officer entertains a reasonable suspicion that the person - has committed - is committing - or is about to commit a felony or

misdemeanor

In short, in the U.S. "without probable

causel! is" equated with "unreasonable", and if a detention

or arrest is not well founded then any evidence secured

as a result of the un1awful1 arrest is inadmi-ssible in

evidence. For example, in Davis v. Mississippi 1969 394 U.S.

721 the Supreme court held finger pri'nts of the accused

were inadmissible in evidence becaus,e t,he arrest was

illegal in that there was no probable cause to found the

warrant.

However" trying to capture the essence of

"probable cause" in browsing American cases can be most

frustrating. At best an understanding of the term can

only be fragmentary, a patch work concept gleaned from

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judicial prounou'ncements upon particular factual contexts'.

It would appear however, that warrantless arrests in the

U.S. must be predicated upon reasonableness or the

equivalent of ttprobable cause II.

The Canadian position appears to be much

less litigated, for obvious reasons. In any event, now

that there is a right against, arbitrary detention and

imprisonment, it is my feell-ng that there will be much

more litigation oVer the meaning and significance of

temporary detentions. For example, will our courts,

having regard to the proVisions of section 9 follow

our Supreme Court ruling in Chromiak v. The Queen 1980

12 C.R.N.S. 300, where it was held that detention for

the purposes of a breath test demand was not a detention

under the Bill of Rights. I suspect that unless there is

reasonable grounds for s~ch detentions that the courts

will not follow Chromiak nor Dedman for that matter.

The next question, of course, is even if

section 9 is violate~ of what significance is that?

The significance lies in the opportunity to seek a

definitive remedy under section 24(2) by having the court

exclude evidence obtained by infringing or denying the

right under section 9. Too, if a citizen is "detained ll

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he must be promptly informed of his rights pursuant to

section 10. If the section la- right is further viola ted

then additional ammunition is available for a section

24 application.

In short, with a little imagination

learned defence counsel will be able to ingeniously

argue section 24 exclusion applications based upon

infringements of rights granted by- sections 8 and 9.

5. SECTION 10

Section lO(a) grants the right to be

promptly informed of the reasons for arrest or detention.

This right is not new and shouldn't cause any great problem

except that a violation of section 10 (a) could' result in

an admissible piece of evidence '(a confession for example)

being excluded pursuant to an application under section 24.

The more interesting change in section 10

is the right under 10(b) to be informed of the right to

retain and instruct counsel without delay. This right

has- the imprint of United States practice allover it.

Section lO(b) effectively incorporates several U.S. Supreme

Court decisions. First, in Gideon v. Wainwright 1963 372

U.S. 335 the U.S. Supreme Court -invoked the 6th and 14th

amendments and overturned Gideon1s conviction for having

- 25 -

broken and entered a poolroom. Mr. Justice Black, in

delivering the court's judgment said:

"The rights of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedur~l and substantive safe guards designed to -assure fair trials befot'e impartial tribunals in whiCh every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charge4 witn crime has to ~ace his accusers wi thout a lawyer to assist him."

Secondly, in Miranda v. Arizona (1966) 384 U.S. 436 the

U.S. Supreme court overturned a conviction for kidnapping

and rape in essenqe holding that Miranda had not been

apprised of_ his right to counsel, and therefore his

constitutional rights had been violated and his subsequent

confession was therefore inadmissible. Whether Canadian

courts will r~le confessions inadmissible, where obtained

in breach of IO(b) remains to be seen. However, a

combination of a section IO(b) violation and a section 24

application will likely raise difficulties in several areas,

including interrogations, line ups, and perhaps pre trial

psychiatric examinations.

Obviously the investigative authorities

have to be instructed to inform an individual of the

reasons for his detention and to inform him/her of the

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I /

)

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right to. retain and instruct counsel without delay.

Another concern that I have is once the pro­

posed accused has been informed of his rights to. counsel,

will there be an obligation .en the authorities to. obtain

a waiver of J;ight to. counsel. This Ie-ads to. a consider-

ation of the necessity for explicit waivers, general

wai vers Qr implied waivers. The case of North Carolina v.

Butler 1979 441 u.s. 269 illustrates the potential problem.

Butler was arrested and convicted of kidnapping. and

armed rObbery. The victim of the robbery, though wounded,

survived arid testified. During ·the investigation Butler

was warned pursuant to. Miranda. The court overruled the

conviction saying the statement was not admissible since

there was no. explicit waiver to counsel.

On appeal it 'was further held:, (Mr. Justice

Stewart delivering the judgment)

II ••• an explicit statement of waiver is not invariably necessary to support a finding that the defendant waived his right to remain silent or the right to counsel guaranteed by the Miranda case. 1I

Our Supreme court in Korponey v. Attorney General of Canada

Jan. 26, 1982, while not obviously dealing with _waiver in

tlE con text of our Charter may nevertheless have fore-

shadowed the courts approach when Mr. Justice Lamer

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said;

" .•. the validity of such a waiver, and I should add that that is so of any waiver, i'8 dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process. II

Are we into the c.omplexiti€!,S of waiver

as a res_ult of the enshrinement of the right to be

informed about the right to counsel in our Charter.

I suspect that defence lawyers are already tubbing

their hands in glee over the possibilities that infringe­

ments of section 10 rights pose.

In closing, the judiciary will have a

rather interesting time in determining what evidence,

obtained in the course of infringing or denying certain

rights, if admitted would bring the administration of

justice into disrepute. Will harmless violations

a-ttract exclusion rulings Or will the court save exclusion-

ary rulings for activity that "shocks the conscience U ?

Only time will tell.

6. SECTION 11

Section 11 of our Charter grants nine

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additionai rights', so_me of which are already well

enshJi:ined in our judical system. For example 11 (d) i. e.

the right to· be presume¢! innocent until proven guilty

according to law in a fair and public hearing by an

independent and impartial tribunal, is well entrenched

and should not cause any undue concern.

The "most interesting new right in section

11 is the right "to be tried wi thin a reasonable time ".

There is really no helpful law in Canada on this issue.

The Canadian Bill of Rights has no similar provision. An

infringement of this right will probably trigger an

application under section 24 for a Stay of Proceedings

or an outright dismissal. Section ll(b) likely applys to

provincial statute offences because of the rather broad

wording in the opening part of section 11, i.e.,

"charged with an offence ". Hence, administrators of

justice must be aware of and prepared to provide for

trials on all fronts within a reasonable time.

_The phrase "wi thin a reasonable time ll has

not been specifically judicially considered even though

similar phrases such as '~orthwit~have been; as well

as "unreasonable delay".

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It is my view that the judiciary in

considering the matter of "trial within a reasonable

time" will want to consider the following factors:

(i) all the circumstances of the case

(ii) -conduct of the accused

(iii) seriousness of the charge

(iv) granting or denying of release

(v) p~oblems in obtaining witnesses for the court

(vi) complexity of the evidence

(vii) public interest

At the moment there are no guidelines as

to what is a reasonable time. Should the Federal

Government bring in the proposed Omnibus Bill to amend the

Code, there are time limitations in that Bill which

undoubtedly will become a legislative yardstick to assist

in determining reasonable time for trial. For example,

it is my understanding, that under proposed section 462.5(1)

s_ununary trials shall commence within six months from the

day of first appearance. On the other hand, if a

preliminary inquiry has been held then the trial shall

commence within six months from committal. Obviously

there are exceptions and provisions for extensions,

but basically the proposed section would not conflict

with the Charter right.

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)

In short,'- -the situation for administrators

of justice would appear to oe as follows when both pieces

of legislation are in place:

(i)

(ii)

(iii)

(iv)

(v)

(vi)

(vii)

(viii)

(ix)

- time runs from first appearance

- provisiens are mandatory

- .only .one extensien allewed

- no appeal available

- some delays excluded

- previsions apply to preliminary and trials

- apply whether in custody .or net

- remedy is dismissal .or stays .of proceedings etc. (when using's. 24 of Charter)

- onus en Crown to satisfy ceurt regarding an extens ien.

Obvieusly, in some centers .obtaining a

trial date will be a preblem. Net .only will a trial date

be a problem but crime labs may alse be stacked up so

that analyses are not available quickly eneugh.

The Omnibus Bill rules will be very handy

and persuasive guidelines fer Charter right· .of IItrial

within a reasenable time". Accordingly, I suggest that

investigating and prosecuting authorities be instructed

as follows:

(i) keep meticulous notes_ on delays

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(ii)' keep records on files up to date regarding delay and reasons therefore

(iii) make applications for extensions of time as Soon as possible

(lv) do not set summary trials or preliminary inquiries 6 months ahead

(v) major cases, i.e., fraud et cetera, will be Q.iff-icult and therefore the court ought to be apprised of the situation at an early date in order to expedite the setting aside of sufficient blocks of time to accommodate the preliminary or trial

As usual there are plethorae of American

cases dealing with the 6th 'amendment right to a speedy

trial. The usual consideration relates to the reason for

delay. The U.S. Supreme Court in Barker v. Wingo (1972)

407 U.S. 514, resigned itself to a balancing test,

requiring that cases be approached on an ad hoc basis but

suggesting four factors that ought to receive considera-

tion, namely:

(i) length of delay

(ii) reaSOn for delay

(iii) defendants assertion of his right

(iv) prejudice to the defendant.

Barker conunitted murder on July 20; 1958 ,an,d was finally

tried on October 9, 1963. -Barker, through counsel, made

no objection to the continuances sought by the State.

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Interestingly enough_, in Strunk v. u.s.

(1973) 412 U.S. 434 the U.S. Supreme Court observed

that unintentional delay such -as overcrowded courts or

understaffed prosecutors are among the factors to be

we.ighed less heavily than intentional delay, calculated

to hamper defence.

In closing then, it would appear there will

be litigation involving section ll(b) of the Charter

arid- its guarantee of trial within a reasonable time,

whatever that is.

·7. SECTION 11(0)

Section 11(0) appears to advance into a

constitutional right those principles of law -that prevented

an accused from self-incrimination at trial. Section

11(0), however, appears broader than previous law indicated.

First of; all, the right applies where "an offence ll has

been charged and where !lproceedings" are under way.

Offence could be a provincial or municipal offence and

proceedings might be anything from a psychiatric

evaluation at the request of the court to a trial. The

right given under ll(c} may apply, for example, to

disciplinary proceedings related to police or to -an inmate

being disciplined while in custody.

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It is my view, that, because of the wording

of 'section 11 it would not apply-to such ~xercises as:

(i) a line up parade: vide Marcou'x 1975 24 C.C.C. 1

(ii) br,eathe test on demand, vide R. v. Curr 1972 7 C.C.C. 181

(iii) blood samples; vide Devison 1974 21 C.C.C. 225

(iv) a Crown arranged psychiatric examination Sweeney (no. 2) 1977 35 C.C.C. (2d) 45

In closing, an area that will probably be

tested is the application of a reverse onus clause to a

person charged with an offence. Are the courts likely

to consider a reverse onus clause a IIreasonable 1imitation ll

upon the right·not to be compelled to self-incriminate.

The answer, if I may be so bold, is probably

not insofar as most reverse onus claus.es under the

criminal Code are concerned. See for example, R. v.

~rany, Zikan and Dvorak (1979) 46 C.C.C.(2d) 14 and R.

v. Proud1ock (1978) 43 C.C.C. (2d) 321. On the other hand,

I am not prepared to hazard a guess about reverse onus

clauses that appear in provincially drafted legislation.

Provincial legislation is usually quite different from

jurisdiction to jurisdiction, and sometimes poorly

drafted and ill conceived.

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It would appear that when one reads section

11(c) in conjunction with section 13 of the Charter an

accused-witness has a great deal of protection against

self-incrimination. While the protections existed at

law in the form of legislation and case precedent,

certain procedures were required to invoke said protections.

For example, if a witness was asked a question, the answer

to .which would incriminate, the-witness, in order to be

protected against that answer would be expected to

respond with, "I refuse to answer on the grounds that

my answer will or may incriminate II and then proceed to

answer the question. Another practice was to ask -the

court for the protection under the C.E .A.- and provincial

Act before answering lethal questions. In any event, it

would appear that such practices need no longer be of

concern having regard to the rather specific language in

section 13. While the Charter shield is now automatically

available for previous testimony that incriminates, the

shield will not protect against perjury or the giving of

contradictory eviden,ce.

In short, the accused witness will be

guaranteed tHe right not to self-incriminate by testimony,

compelled or otherwise.

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8. SECTION 11 (e)

This section provides for the right of

reasonable bail. The United States eighth amendment

provides that excessive bail shall not be required. The

leading American case of Stack v. Boyle (1951) 342 U.S.l

held that the primary pu~pose of bail is to assure the

presence of the accused at trial and that bail set at a

figure -higher than an. amount reasonably calculated to

fulfill this purpose is excessive under the eighth

amendment. Reasonableness in the American context is

judged in terms of the individu'al defendant. For example

in Cresta v. Eisenstadt 1969 302 F. Supp 399, the court

found that $100,000 bail not excessive considering the

following:

(i) motive -for flight was strong since maximum. penalty was life

(ii) accused offered no evidence of facts to militate against flight

(iii) a half million dollars involved in the -robbery waS still unrecovered

(iv) prosecution had a strong case

Generally speaking the U.S. courts consider

the following fac'tors: vide People v. Terrell 1970

309 N.Y.S. 2d 776 and Delaney v. Shobe 1959 3468 2d 168

(i) nature of the offence

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(ii) penalty for offence

(iii) ability of accused to .give bail

(iv) character and reputation of accused

(v) health of accused

{vi} character and strength of evidence

(vii) probability of accused appearing

'(viii) forfeiture of other bonds

(ix) whether accused under bond _in other cases

(x) whether accused a fugitive from justice when arres ted

While there is not an abundance of case law

on the concept of "reasonable bail U in Canada there

certainly. is in the U.S.A., and accordingly one need only

browse the American legal precedents for .awhile in order

to find a specific case that will cover any fact situation.

However, I suspect our Canadian approac~ having regard to

section 457 of the criminal Code, will not likely change

substantially.

One rather interesting practice prevalent in

the United States- is that of "station house bailll. A

schedule is set by the courts and bail can be immediately

posted at the police station in accordance with the

schedUle. For example, in the District of Columbia the

schedule authorizes police officers to set bail only at

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the figure stipulated, i.e., simple assault; $500.00;

attempted robbery, $3000.00; robbery, $5000.00. In

Ohio the figure for simple assault is $25.00. In Illinois

it is $200.00 for most misdemeanors, while in New York

the figure is $500.00.

The advantage is immediate release where

means are available. The disadvantage is that the concept

discriminates against the indigent.

Do we need a set schedule for bail in

canada to assist in expediting release of the haple_ss

citizen arrested for a summary conviction offence? In

short should we consider the mechanical mechanism of

IIstation house bail ll ?

9. §.~ON l1(f)

It would appear that this section makes no

real changes to the law as we now know it. The one

question that may arise from time to time is the question

of waiver, and one need 'only keep in mind what 'Mr,. Justice

Lamer said in Korponey (supra}.

10. SECTION 12

This section provides that everyone has the

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-right not to be subjected to any- cruel and unusual

treatment or punishment. Our section is quite similar to

the American eighth amendment that provides that no

"cruel and unu$ual punishrnent rT is to be inflicted.

In 1972 in F\lrman v. Georgia 408 U.S. 238

the Supreme Court held that;

lithe imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the eighth and fourteenth amendments"

The cases referred to were fu~ (murder), Jackson (rape),

and Branch (rape); all were black.

On the issue of the death penalty our

Supreme court in R. v. Miller and Cockriell (1976) 31 C.C.C.

(2d) 177 upheld the penalty. The· Chief Justice eschewed

the- American Supreme court app.roach to the death penalty I

on several grounds, namely canada has one criminal code;

there is no provision for sentencing by juries, as is

the case in the U.S. where the experience has been

discriminatory, wanton and freakish; there is wide

judicial review available in canada; there is a limited

range of capital offences and finally the Government can

commute.

Fortunately, this review is all academic at

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this time, since we' no longer have the death 'penalty' in

canada.

Perhaps the 'term "treatment" in section 12

will provide further opportunities for judicial scrutiny.

Penal situations have been examined somewhat: vide R. v.

Hatchwe11 1974 1 W.W.R. 307; McCann et a1 v. The Queen

1975 29 C.C.C.(2d) 337. However, I suspect there is

room for further examination into penal practices. In

addition, those who are held in mental institutions

under Lieutenant Governor's order may well complain

about· cruel and unusual treatment or punishment. Too,

once the Young Offenders Act is made law, there will

likely be complaints pursuant to section 12 surrounding

treatment of young offenders, particularly so if the age is

moved up to 18.

11. SECTION 24

Section 24 is one of the most interesting

sections in the Charter of Rights and Freedoms. Section

24(1) provides that "anyone ll whose rights have been

infringed or denied may apply to a court of llcompetent

jurisdiction" to obtain a remedy. Section 24(2) provides

for the exclusion of evidence obtained by infringing

or denying Charter rights if the admission of such

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evidence would "bring the administration of justice into

disrepute" .

Several questions arise at the outset.

For example, what is a court of competent jurisdiction?

When that question is- posed, it is really asking can a

bourt seized with a criminal case dispense a civil

remedy? Section 24 is not abundantly clear, on this

issue, but it makes sense that a civil cQurt would

furnish civil remedies such as damages, injunctions, and

declarations where guaranteed Charter rights and freedoms

have been infringed or denied. On the other hand,

criminal courts ought to be in a position to furnish

criminal remedies such as, adjournment, costs, in limited

circumstances, the exclusion of evidence and perhaps

stays of proceedings, where Charter rights have been

infringed or denied.

Another interesting feature of section 24,

is whether it is the appropriate vehicle for applications

that may arise under section 52, that is applications to

strike down on the footing that the impugned legislation

is inconsistent with the Charter. If section 24 is the

vehicle then cases like Borowski would not be appropriate.

Simply put, people like Borowski would not have standing

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because their rights or freedoms under the Ch.arter had

not been infringed or denied. In other words, before an

application under section 24 is available the applicant

must be able to demonstrate that his/her Charter rights,

as limited by section 1, have been infringed or denied.

If the individual passes that threshold criteria, then

he/she may look for an appropriate and just remedy.

On the other hand, applications under

section 52 may stand on their own and if so then cases

such as Borowski, Dec. 1, 1981 S.C.C., Thorson [1975]

1 S.C.R. 13 and McNeil [1976J 2 S.C.R. 265 will survive.

Another issue that arises is that of the

victims of. crimes and their status to make an application

under section 24. A reading of section 32 leaves some

doubt as to whether a victim would have standing, simply

because section 32 appears to provide that the Charter

applies only to federal and provincial governments and

not against persons accused of criminal conduct. If

this observation is anyWhere near accurate thenit would

appear that victims of crime have no remedies under the

Charter, unless they are victims at the hands of govern­

ment.

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)

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One further matter to consider is the

exclusi.onary test posed in ,section 24(2). In short( a

court shall exclude evidence obtained by infringing or

denying Charter rights, provided the court is satisfied

that to admit such evidence would bring the administra-

tion of justice into disrepute.

First of all, there would appear to be a

number of steps to negotiate before an applicant is

successful;

(i) an infringement or denial of a Charter right or freedom, as limited by section 1

(if) that evidence was obtained by the denial or-infringement of the Charter right

(iii) establish that, having regard to all the circumstances, the admission would -bring the administration of justice into disrepute

The next int~resting exercise is to try

and determine what the phrase "bring the administration

of justice into disrepute" means. The phrase is one that

many lawyers love to use because it sounds great, appears

to- expose -uridesirable practices, and has the ring of

vindication attached to it, in the name of justice.

Indeed, the term is very elastic and is most difficult

to define. Perhaps the Supreme Court of Canada fore-

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shadowed what the approach. ought to be in the Rothman

(1981) 59 C.C.C. (2d) 30 case. Rothman, in essence,

was tricked into giving a confession, by placing a

police officer in the same cell. The officer pretended

to be a truck driver picked up for a traffic violation.

The confession was held admissible and Justice .. Lamer

during the course of his judgment" talked in terms of

police conduct that II s hocked the community". He gave

three examples of shocking conduct;

(i) a police officer disguised as a priest and receiving a confession

(ii) the-police informing a diabetic suspect that the needle they were administering was insulin, when it was really a truth serum

(iii) a police officer pretending to be a legal aid lawyer and receiving a confession from an accused.

While the "shocking to the community II test sounds

appropriate, it is really not very practicable or workable.

In essence, it comes down to the courts subjective

determination of what is shocking.

In Rochin v. California (supra) the United

States Supreme Court refused the entry of evidence

because as Frankfurter, J. says, "This is conduct that

shocks the conscience".

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)

)

The Rochin test was eschewed by the· same

court in rrvine v. California (1954) 347 U.S. 128.

The court said:

"However obnoxious are the facts in th_e case before us, they do hot involve coercion, violence or brutality to the person, but rather a trespass to property, plus eavesdropping. II

This statement by the court ih 1954

limited the previous IIshock the conscience" test and posed

a three point criteria of~

(i) (ii) (iii)

coercion violence brutality

as a practical gU-ideline for assessing evidence obtained

illegally.

In Irvine, Justice Clark was most critical

of the Rochin test saying7

IIIn truth, the practical results of this ad hoc approach is simply that'when five Justices are sufficiently revolted by local police action, a conviction is overturned and the guil ty may go free. Rochin bears witness to this. We may thus vindicate the abstract principle of due process, but we do not shape the conduct of local police one whit~ unpredictable reversals on dissimilar fact situations are not likely to curb the zeal of those police •..• II

In short then, la shock the conscience or

community testll for determining the admissibility of evidence

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illegally obtained is. of little real use for trial judges

who, day to day, will be asked to exclude evidence under

section 24(2) because it brings the administration of

justice into disrepute.

The next obvious question then is if not

a II s hock ll test, then what test? Perhaps as a starting

point we adopt th'e criteria o'f coercion, violence or

brutality plus assess whether the impugned evidence is

relevant, reliable and its probitive value is such that

it exceeds any prejudicial effect.

If such. a criteria is adopted we likely

achieve protection for the accused from coercion,

violence and brutality, plus winnow out irrelevant or

unreliable testimony, thereby giving the finder of facts

the greatest amount of useful evidence that from a

common sense point of view is properly admissible

thereby allowing the fact finder the greatest opportunity

to .do the best possible job for both the accused and

society.

Perhaps I can close this part by referring

to U.S. v. Payner 1977 434 F Supp 113 where the court said;

UAltho the exclusion of wrongfully

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)

long.

gathered evidence preserves important s-ocial interest, judicial suppre-ssion of relevant and reliable evidence is never ordered lightly because society has important and substantial interest which require the admission of all relevant and reliable evidence in a criminal prosecution. 0 • The most notable social interest which favours admis sion of evidence is the -concept that the trier of fact performs a truth- seeking' fUnction for both society and the accused. The truth seeker can perform its essential social function of issuing 'accurate adjudications bf--factual guilt or innocence only if the law insures the presentation of the fullest range- of relevant evidence to the trier of fact. 1I

12. SECTION 32 and 33

These two sections need not detain us

The main message in section 32 is that it makes

the Charter apply to Parliament and the Government of

each province.

It appears that the Charter does not apply

to individuals. Hence, if an individual not associated

with government infringes or denies the Charter rights

of someone, then that latter person may have no remedy

under the Charter.

Section 33 surprisingly allows Parliament,

or a legislature of a- provinc~ to expressly declare that

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a piece of legislation sh_all operate,_ notwithstanding

provisions of the Charter~

The real· question is what province would

run the political risk of declaring. that its legislation

take precedence over the Charter. I suspect most

provincial government~ since they presumably had a hand

in building the Charter, will want to see the edifice

apply uniformly- across Canada, and therefore for the

most part will take the position that they will abide

by the Charter and will try to adapt provincial legislation

accordingly.

Section 33 could be viewed as a safety

valve only to be used in some crises or emergency~ other­

wise if used frequently, the general populace would

perhaps rise up and vote such insensitive governments

to oblivion.

13. SECTION 52

This section is of some interest and

concern for several reaSOns. First, it provides for

the supremacy of the Constitution. Secondly, it

provides that any law that is inconsistent is of no

force and effect. Thirdly, the main concern is does

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One h.ave the right under section 52 to apply to a court of

competent jurisdiction for an order striking down

inconsistent leg~ation whether it- is federal or provincial,

or is one relegated to the remedy provided for in section

24. If the remedy is under ·section 24, then the next

question is how does one obtain- s.tanding to pursue a

section 24 remedy that is just and appropriate. It

appears if section 24- is the only avenue open that one

must first establish an infringement or denial of

one of his/her guaranteed Charter rights. Having

established such infringement or denial then the remedy

to strike down the inconsistent- legislation could proceed.

If sec-tion 24 is the 'only avenue open then men like

Thorson, MCNeil and Borowski will be short circuited,

again time will tell.

14. RETROACTIVITY RELATING TO THE CHARTER

There appears to be two main areas of

concern involved. First, when the Charter is given

full force and effect in Canada, will it reach back and

if so how far? The practical answer is that it will

likely speak prospectively for a number of reasons. Firstly,

fresh legislation in the past (for example the privacy

legislation) was not given a retrospective application,

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vide: R. v. Lesarge 1975 26 C.C.C. (2d) 388. Secondly,

the general conunon law rule that applies to leg"islation

dealing with substantive rights suggests that retrospective

relief is not given unless the legislation clearly says

so. The Charter of Rights certainly does not contemplate

retrospective relief. Thirdly, from a practical and

common sense point of view I i't would be impossible for

enforcement officials to anticipate the exact c'hanges

and to act on the said changes before they become the

law of the land.

The second major area of concern is with

respect to rulings from the Supreme court.

In the united States some confusion pre-

vails as to the effect of Supreme Court rulings in the

matter of retroactivity-. Linkletter v. Walker 1965 381

U.S. 618 and Johnson v. New Jersey 1966 384 U.S. 719

when read together appear to set out the following

guidelines for considering retroactivity in relation to

judgments.

First, in terms of timing the following

criteria apply 1

(i) those cases in line for _direct review will be affected

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(ii) and a decision is final when availability for appeal has expir.ed

Secondly, .the fairness of the trial or

th.e in tegri ty of the fact finding -process will be

pivotal in deciding whether a decision has retroactive

application.

Thirdly, the factors to consider in deter-

mining retroactivity are:

(i) pri.or history of the rule in question

(ii) -i ts purpose and. effect

(iii.) whether retrospective operation will further or retard the rule

(iv) effect on administration of justice

An example of a case that was given

retrospective effect was Gideon v. Wainwright (supra)

because the ruling, i.e., entitlement to counsel, had a

direct bearing upon the integrity of the fact finding

process or fairness of trial.

On the other hand, Escobedo and Miranda

(supra) were limited in application to trials commencing

on or after the decisions. Two main reasons appear

for the limitation. First, the rulings in Escobedo and

Miranda arose as a result of rulings on issues that

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preceded the fact finding process, and secondly, to give

retroactive effect to such rulings would severely dXS'llupt

the administration of justice, because it would necessitate

hearings on excludability. Such hearings would be

greatly disadvantaged because evidence would haye been

destroyed, misplaced or forgotten, and besides there were

other protections to advance rulings like Escobedo and

Miranda~

The common sense approach suggests emphasis

be placed on' the integr-ity of the fact finding process

or trial. After all, the trial is indeed the pivotal

point in the administration of justice.

IV. CONCLUSIONS

This material has been long, and I'm sure

tedious, therefore, I will try to close out by making

several observations. Definitive conclusions On the

many issues are very difficult and at best one can only

make an educated guess.

First of all, the Charter'of Rights and

Freedoms grants new substantive and procedural rights,

guaranteed for all Canadian citizens subject to legal

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limitations, but with provision for corrective remedy

in event of infringement or denial. The Charter is

supreme and laws federal or provincial inconsistent

therewith are of no effect unless expressly declared

otherwise.

Secondly, upon implementation the judiciary

will be ear,ly taxed with numerous problems arising from

perceived denials of Charter rights. Until Canadian

precedent is established there will be a great temptation

to seek solutions from the- abundant American legal

experience with their Bill of Rights. I strongly urge

our judiciary to proceed cautiously and not to embrace

American precedent with open arms and closed minds.

While American decisions can at tim~be helpful and instruc­

tive, they can also be excessive, confusing and inappropriate.

Bear in mind the American Constitution was conceived

for very different reasons than our~ and is substantially

different from oul'S in several respects, for example,

section land 24.

Thirdly, I suggest as lawyers we all look

optimistically upon the opportunity to play a significant

role in shaping our Cha-rter for -the benefit of all

Canadians.

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Lastly, let me close by saying, we have

in Canada a unique opp~rtunity to participate in the shaping

of the law that will emanate from Charter issues, there­

fore, let us bring to that exercise good will and common

sense so that the public will respect and be confident

in the administration of civil and criminal justice.

D. W. Perras, Q.C.

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1. McLeans -- IIThis is the Way We Build Our Land"

Alla'n Fotheringham

2. The Living U.S, Constitution, Saul K. Podover

1. Modern Criminal Procedure 4th Edition by Kamisar, Lafave and Israel American Case Book Series St. Paul, Minn., West Publishing Co.

2. Constitutional Rights of the Accused Pretrial Rights 1972 and Cununulative Supplement issued Nov. 1980 by Joseph- G.· Cook

3. Appendix (a) Selected provisions of the United States Constitution

(b) Canadian Bill of Rights

·:.'

APPENDIX A

, SELECTED PROVISIONS OF THE UNITED STAtES~ , CONSTITUTION . .,

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ARTICLE I

Section 9. • .. • [21 The privilege of thlt Writ of Habeas Corpus shall not be suspended.

unless when In Cases of RebellIon or Invasion the publlo Safety may require It.

[31 No Bill of Attalndet'" or ex post Cacto Law shall be passed.

ARTICLE III Section 1. The Judicial Power ot the United States, shall be vested In

one supreme Court, and In such inferior Courts as the Congress may from time- to time ordain and establish. The Judges, both. of the supreme and in· terior Courts, shall hold their Off1ces during good BehavIour, and shall, at stated Times, receIve for their Services a Compensation. which shall not be diminished during their Continuance In Office .

. Section 2, [lJ The judicial Power ·shalt extend to all Cases, in Le,.w and Equity. arising under this Constitution, the Laws of the United States; and Treaties made, ot'" which shalt be made, under their Authoritn-to all Cases affecting Ambassadors, othel'" public Ministers and consulsj-to all Cases of admiralty and maritime Jurlsdlcttonj-to Controverslea to which the. United States shall be a Party;-to Controversies· between two or more States; -between a State and Citizens of another State;-between CItizens of different StateSj-between Oith:elis of the same State claiming Lands under- the Grants ot different States, and between a State, or the Citizens· thereof, and foreign States, Oltbens or Subjects.

[3] The trial at all Orimes, except In Cases 0(" rmpeachment, shall be by Jury~ and such Trial shall he held In the State where the said Crlm.es shalt have been committed; but When not committed within any State. Ule Trial shall be at such Place ot'" Places as the Congress may by Law have directed.

SectIon 3. [1] Treasou against the United States, shall consist only In levying War against them, or, in adhertng to thele Enem.1eB, giving them.. Aid and COI)lfort. No Person shall be- convicted of Treason unless on the Te8tt~ mony of two Witnesses to the same ovett Act, or- on Confession In open. Court.

(2] The Congress shall have Power to declare the PunIshment of Trea.· son, bul; no Attainder of Treason shall work Corruption. of Blood, or For­feiture. except dutlng the Life of the- Person attal nted.

ARTICLE IV

Section 2, [1J The Citizens of each State shall be enUtled to all Prlvl~ leges- and Immunities of Citizens in the several States.

[2] A Person charged in any State with Treasoll. Felony, or other Crime, whO" shall flee trom Justice, and be tound in another State, shall on demand. of tile executive Authority ot the State trom which he fled, be de· livered up, to be removed to the State having Jurisdiction of the Cdme.

ARTICLE" VI

.[2] This Constitution, and the Laws of the- United States which shall be made In Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law.

AMENDMENT'I [17911

Congress shall make no law respecting an establishment of religion, or prohibiting the free e:o:erclse thereof; or abridging the freedom ot speech. or

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AMENDMENT XIII [1865]

Section 1. Neither slavery nor Involuntary servitude, except as a pun­IShment ror crime whereof the party shall have been duly convicted, shall exist wllhln the United States, or aDY place subject to their jurisdiction.

Section 2. Congress shall ha.ve power to" enforce this article -by appro.­prlate legislation.

AMENDMENT XIV (1868]

Seetlon 1. _All persons born or naturalized In the- United States-, and !luhject to the jurisdiction thereof, are citizens of the United States aod of the State wherein they radde. No State shall make or enforce any law which shall abrl!lge the privileges or ImmunlUes of citizens ,of the United, States~ nor shall any State 'deprive aliY person of.. lUe, Uberty. or properly, withOut due process of law; nor deny to. any pe[soo within its. ju[fsdlction the equal ·proteCltion or the laws:

Section 5. The Congress shall haVe pOwer to- antorca, by appropriate legislation, the provisions of this article.

AMENDMENT" XV [1870J

Section 1. The tight of clti:r.ens. of the United States to vote shall not be denied or abddged by the United States or by any Stat& on account of race, color, or previous condition of servitude.

Section 2. The COngress shall have p.ower to enforce' this: article by" ap­propriate legislation.

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of the press: or the rlgllt of the people peaceably to assemble, nnd to tlon the Government [or a. redress of grievnnces.

AMENDMENT II [1791]

peti-I

A welt regulated M11Itta, being necessary to the security of a froo Stato, the right of the people to keep and bear Arms, shall not b9' Infringed.

AMENm.mNT III [1791]

No Soldfcr sllall, In time of peace be quartered In any house, without tIle consent of the Owner, nor In time of war, but in a manner to be prescribed by Ia.w~

AMENDMENT IV (1791]

The right of the people to be secure In their persons, houses, pnpers, and effects, against unreasonable searches and seizures, shall not be violated, and no \Vnrnmts shall Issue, Qut upon probable cnuse, supported hy Oath or afflrmntion, and particularly describing the place to be searched, and the persons or things to be seized. -

AMENDMEN'l! V [1'191]

No person shall be held to answer for a capital, or- otherwise Infamous crime, unless on a pre.sentment_or-Indlctment of a. Grand Jury, e)Ccept In aases arising in the- land or navn,l forces, or- In tile MlUtla, when In actual fJervlce In time of \Var or pubUc danger; nor_shall any porson be subjoat for the same oflenae to be twice put In jeopardy of life _or 11mb: nor shall be aompe\lod in any criminal case to be a witness against himself, nor be deprived of !tfe, lib· erty, or property, without due process of law; nor ·shall privata proPt'lrty. be taken fot" pub!tc use, without just compensatiQn.

AMENDMENT VI (1791]

In all criminal proseautlons, the Mcused shan enjoy the right to a speedy and public trial, by an Impartlat Jury of the State and district Wherein the crime shall ha\'e been aommittod, which district shaH Imve boen prevIously as­aertalned by law, and to be Informed of the nature and cause of the accusation; to be cOnfronted with the witnesses against him:. to have aompulsory process for- obtaining witnesses in bls favot", and to have the Assistance of Counsel tor- his defence-.

AMENDMENT vn [1791]

In Suits at common law, where the value In controversy shall exaeed twenty dollnrs-, the- right ot trial by- jury shall be prese:rved, and no fact tried by,jury, shall be otherwise re-examined In any Court of the United Statcs~

than aacordlng to the rUles of the common law.

AMENDMENT VIII (17911

Excessive ball shall not be required, nor excessive fines Imposed, nor- cruel and' unusual punishments inWcted.

AMENDMENT IX [17911

The enumerntlon in the Constitution, Of certain rights, shall not be con­strued to deny or disparage otliers retained by the people,

AMENDMENT X [1'191] , The powers not delegated to the United States by the Constltutfon, nor

prohlhlted by it to tho States. are reserved to the States respectlvely, or ta the people.

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CANADIAN BILL OF RIGHTS

ApJX:ndlx Dr to R.S.C. 1910

An Act lor the Recpgnldon and Protection of Human Rights and' F'undarnentaf Freedoms, 1960 (Can.). c. H.

As flmended by 1910~1I~12,' c. 38, s. 29.

The Pal'I1amel)t of Canada, affirmIng that" the Canadian Nation Is founded upon prlncipies that acknowledge the supremacy of Gad, the dignity and worth of the human person and the position of the family 1n a -society of free men and free instltutlons;

AfHnnlng also that men and institutions remain free only when tree­dam is founded upon respect for ,moral and spiritual values and the rule of law;

And being desirous of enshrining these principles and the human rights and- fUndamental freedoms derived ir_om th.em, In a But of Rights which shall relied the respect of Parliament for its constitutional authority and which shall ensure the protection of these rights and freedoms in Canada:

THEREFORE. Her Majesty, by and with the advice and consent of th~ Senate and House of Commons of Canada, enacts as follows:

PART I

BILL OF-RIGHTS

1. It- Is hereby recognized and declared that- In Canada there have existed and shall continue, to exist without discrimination by reason of race" national origin, colour. religion or sex~ the following human rights and fUndamental freedomS',- namely,

(a) the right of the Individual to Ufe, Uberty, security of the person -and enjoyment- of property, and the right not to be deprived thereot except by due process at law;

(b) the right of the Individual to equality betore the- la\v and the protection ot the law.

(a) freedom of-religIon; (d) freedom of speech; (6) freedom at assembly and association; and (f) !reedom of the press.

2. Every law at Canada_ shall.- unless it IS expressly declared by an Act of the Parllament of Canada that it shall operate- notwithstanding the Oaf'l{ldian Bm: of'Rights, be so construed and appUed as not to abro­gate, abrIdge or infringe or to authorize the abrogation. abridgment or lntril'lgement of any of the rights or freedoms herein recognized and declared. and In particular. no law of. Canada shall be construed. or applied so as to

(a) -authorlz& or effect the-arbitrary detention, Imprisonment or exile­of. any person;

(b) impose or authorIze- the imposition of cruel and unusual treatment 01'" punishment;

(a) deprive a person who has been arrested or detaIned (1) at the right to be Infonned promptly of the reason for his

arrest or detention.

53. MISCELLANEOUS STATUTES

(ll) of the right 'to retain and instruct counsel without delay, or (iii) of the remedy by way of habeas corpus for the determination

of the valldlty of his detention and for his release It the de­tention Is not lawful;

(d) authorize a court, tribunal, commission. board or other authOrity to compel a person to give evidence If he Is denied counsel, protec­tion against selt crtmlnatfon Of other constitutional safeguards;

(El) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obUgations:

(I> deprive a person Charged with a criminal offence of the right to be presumed !Mocent untH proved guilty accordbtg to law in a fair and public hearing b1 an Independent and impartial tribunal, or of the right to reasonable hall without just cause~ or

(g) deprive a person of the right to the assistance of an interpreter in any proceedings In which he Is Involved Or In which he Is a party or a witness, before a court, commission, board or other tribunal, If he does not understand 01"'" speak the language IIY which such proceedings are conducted.

-3, The Minister of Justice shalt, in accordance with such regulations as may be prescribed by the GoveroQr in Council, examine- eVery regulation transmitted to the Clerk of the Privy Council for registration pursuant t(} the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons, In order to ascertain whether any of the provisions thereof are Inconsistent with the purposes and provisions of this Part and he shall report any such Inconsistency to the House of Commons at the first convenient' opportunity. 1970-71·72, c. 38, s. 29.

4. The provisions of -this Part shall be known as the Canadian Bur of Rights. '

PARTrr

5". (1) Nothing in Part I shall be construed to abrogate or abridge any human right or -fundamental freedom not enumerated therein that may have existed In Canada at the commencement of this Act.

(2) The expression "law or Canada" in Part I means an Act of the Parliament of Canada enacted before or after the coming-into force of this Act, any order, rule or regulation thereunder, and any law In force In Canada or In any part of Canada at the commencement of this Act that Is subject to be repealed, abOlished or altered by the Parliament of Canada.

(3) The provisions of Part I shall be construed as extending only to matters coming within the Iegislatlve authority of the Parliament of Canada.

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