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| Justin D. Rochester |
The blunt language is purposeful; it’s used with the intent to invoke a reaction and then contemplation. The logic is simple: we ensure the system works when we defend those accused of heinous or minor crimes. When one’s freedom is questioned, the Crown attorneys bear a high evidentiary burden to prove their guilt, a high threshold to meet, and rightfully so. The strongest and most consequential pillar that shores up society is, in my opinion, the judiciary system. Without a fair, unbiased and dependable judiciary, society may inevitably fall. This understanding brings us to one of the most consequential and vital documents in Canada — the Charter.
The Canadian Charter of Rights and Freedoms stands as one of the most defining elements of Canada’s constitutional framework. Introduced in 1982, the Charter enshrines fundamental rights and freedoms that protect individuals against state overreach and ensure fairness within the justice system. Its protections are vital not only for safeguarding the rights of those accused of crimes but also for fostering public trust in the judiciary — a cornerstone of a stable and secure society. The consistent enforcement of Charter rights reinforces the notion that justice is impartial, even when it protects those who have engaged in criminal conduct.
Building public confidence through Charter protections
The stability of any society is deeply tied to the public’s trust in its judicial system. A legal framework that prioritizes fairness, transparency and accountability ensures that citizens believe in and rely on the rule of law. The Charter plays a fundamental role in achieving this aspiration by guaranteeing due process, ensuring lawful investigations and preventing arbitrary state actions.
Criminal law often presents challenging circumstances, especially when public safety concerns arise. However, the Charter ensures that the protection of individual rights is not sacrificed for expedience or mob rule. This delicate balance strengthens public confidence by demonstrating that justice is impartial and that no individual is unfairly targeted or denied their fundamental rights. Further protection of this essential aspect of the law is even more necessary when the judicial system becomes a political football, with politicians taking advantage of the public’s lack of knowledge of how the system operates.
Defending the rights of the guilty to protect the innocent
An essential and increasingly controversial aspect of the Charter is its role in protecting the rights of those accused of crimes. Critics may argue that such protections favour criminals; however, the broader truth is that these rights exist to ensure fairness for everyone. By safeguarding the rights of accused persons, the Charter indirectly protects those who are innocent by preventing abuses of power. This is the umbrella of protection the Charter provides.
For instance, in R. v. Bykovets, [2022] A.J. No. 738, the Supreme Court of Canada reaffirmed the critical nature of privacy rights under s. 8 of the Charter, which guards against unreasonable search and seizure. In that case, the court ruled that law enforcement’s unauthorized obtaining of something as small as an IP address without judicial oversight violated the Charter. This decision directly benefited the accused, there is no questioning that, but it also reinforced the broader societal principle that privacy is fundamental and that police must adhere to established legal boundaries.
Similarly, in R. v. Le, 2019 SCC 34, a young, racialized man who was visiting friends, none of whom were the subject of an active investigation by Toronto Police, had been arbitrarily detained and questioned without reasonable grounds. The Supreme Court ruled in favour of Le, determining that the police’s actions violated s. 9 of the Charter, which protects individuals from unlawful detention.
While the ruling resulted in the exclusion of evidence — in this case, a gun, drugs and money — the decision sent a powerful message: constitutional rights must be upheld, even in cases where individuals may be suspected of wrongdoing, no matter how severe. This decision underscored the principle that racialized and marginalized communities are equally entitled to Charter protections.
It should be noted here that it is not always the case that a Charter violation results in the evidence obtained being deemed inadmissible. The court has long observed the Grant test, established in the case of R. v. Grant, 2009 SCC 32. This test allows the trier of fact to observe the situation in its totality and look at three main issues:
1. The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
2. The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
3. The particular characteristics or circumstances of the individual, when relevant, including age; physical stature; minority status; level of sophistication.
2. The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
3. The particular characteristics or circumstances of the individual, when relevant, including age; physical stature; minority status; level of sophistication.
This commonsense approach ensures the court’s hands are not tied, allowing it to rule on each Charter violation based on the circumstances of each case.
Bail rights and the presumption of innocence
Bail rights offer another compelling example of how Charter protections safeguard fundamental freedoms. Under s. 11(e) of the Charter, individuals are guaranteed the right not to be denied reasonable bail without just cause. This principle underscores the presumption of innocence — a cornerstone of Canadian criminal law.
Recent public discourse surrounding bail reform has underscored the tension between public safety and individual freedoms. While certain reforms may be necessary to address repeat violent offenders, the Charter ensures that pretrial detention is not misused as a punitive measure against those who have not been convicted of a crime. Maintaining this balance reinforces the fairness of the legal process and preserves public confidence in the justice system.
The role of courts in upholding Charter rights
Canada’s courts play a pivotal role in enforcing Charter protections by acting as a check against state overreach. Judicial independence ensures that these rights are upheld without political influence, fostering an environment where all individuals are treated equally before the law.
For example, in R. v. Jordan, [2016] 1 S.C.R. 631, the Supreme Court of Canada addressed excessive delays in criminal proceedings, ruling that such delays violated s. 11(b) of the Charter, which guarantees the right to be tried within a reasonable time. The court established strict timelines for trials, ensuring that the justice system functions efficiently while respecting the rights of the accused.
Although some viewed this decision as controversial, it underscored the court’s commitment to ensuring timely justice and preventing undue hardship on individuals awaiting trial. This decision has had direct implications for the daily business of the court. Judge-led Intensive Case Management Courts have been established in many jurisdictions. The mandate of these courts is to ensure matters are not languishing and clogging up the already overburdened court system.
Why this matters for Canadian society
The Charter’s role in criminal law reflects a larger commitment to upholding democracy and human dignity. While public safety is paramount, Canada’s justice system is strengthened when constitutional rights are rigorously defended. By ensuring that even those accused of criminal acts are protected, the Charter builds a culture of fairness, accountability and respect for individual freedoms.
This commitment to fairness ultimately reinforces societal trust. Citizens are more likely to support and cooperate with law enforcement when they believe their rights will be respected. Likewise, marginalized communities gain greater assurance that the system will protect them from discrimination and unequal treatment.
Conclusion
The Canadian Charter of Rights and Freedoms is more than a legal framework; it is a symbol of Canada’s dedication to justice, equality and human rights. By ensuring the rights of the accused are upheld, the Charter ultimately protects all Canadians, fostering a legal system that values fairness and accountability. As cases such as Bykovets, Le and Jordan demonstrate, the Charter remains a powerful force in preserving the balance between state power and individual freedoms. In doing so, it continues to strengthen public trust in the judiciary, ensuring that Canada remains a society governed by the principles of justice and equality.
Justin D. Rochester is a paralegal with over eight years of experience in the area of summary offences, and over 7,000 appearances logged before the courts acting as an agent for counsel and for his own matters. He is also teaching in the paralegal program at Centennial College and implemented the Centennial Moot Cup, alongside J.P Rodrigues.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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