Charter of Rights and Criminal Justice

Rewriting the Charter to Provide Stronger Due Process and Evidentiary Protection (2008) 40 Supreme Court Law Review (2d) 349: This article was a contribution for a book celebrating the 25th anniversary of the enactment of the Charter  of Rights and Freedoms and will be presented at a conference in Toronto held in September.  The paper explores some of the more controversial decisions rendered under ss.11 and 24 of the Charter and consider how the Charter could be “re-drafted” to rectify the results.

Majority Jury Verdicts and the Charter of Rights and Freedoms (2006) 39 University of British Columbia Law Review 333: Although majority jury verdicts are popular in many parts of the world, they have never been part of the Canadian criminal process.  This article examines the use of majority jury verdicts around the world and poses an intriguing question: If this process were imported into Canada, would it withstand Charter scrutiny?  The article concludes that the use of majority verdicts would likely lead to a violation of s.11(f) of the Charter [right to a trial by jury], although it is unlikely that s.11(d) [the right to be presumed innocent until proven guilty beyond a reasonable doubt] would be implicated.  It is more difficult to assess how s.1 would be used to defend the measure, but a few thoughts are offered on the manner in which the analysis is most likely to take place.  This paper can be downloaded from the Social Science Research Network by clicking here.

Generally Speaking, We’re Going in the Right Direction – A Response to the Honorable Claire L’Heureux-Dubé (2006), 3 Ohio State Journal of Criminal Law 491.   This article was solicited by the Ohio State Journal of Criminal Law to respond to an address made by L’Heureux-Dubé that was critical on the use of the Charter of Rights in the criminal law context.  The article reflects upon the Charter’s impact on criminal justice since its inception, and rejects the contention that it has been misused to the advantage of criminal defendants, and to the detriment of victims and a wider conception of “justice”.  It also examines the use of the Charter by corporations, and the manner in which the Charter deprives juries of evidence to decide trials.

The Judicial Obligation to Raise Bill of Rights Issues [2003] New Zealand Law Journal 446 [Co-authored with Scott Optican]: This article reacts to the use of the Bill of Rights Act 1990 as a mechanism for excluding evidence, and to the judicial decision to ignore potential human rights violations when they are not raised by counsel.  The article is critical of the Court of Appeal decision in R v Murphey, CA 87/03, 13 June 2003,   which leaves one with the uncomfortable feeling that the Court has shirked its overriding obligation to ensure fairness in criminal proceedings, and may have underwritten a miscarriage of justice on the facts of this particular case. The approach evidenced in Murphey also undermines the importance of rights legislation and the duty imposed by Parliament on the judiciary to enforce the Bill of Rights.

Articulable Cause Based Searches: This Cooke May Spoil the Broth (2002) 2 Criminal Reports (6th) 41: Focussing upon the British Columbia Court of Appeal decision in R. v. Cooke (2002) 2 C.R. (6th) 35 this article critiques an unfortunate development in Canadian search and seizure law to equate searches incident to detention with searches incident to arrest.  Had this development continued, it would have dramatically reduced the ability of a person to remain free of unreasonable search and seizure, as in many cases, detention premised on the articulable cause to suspect criminal activity would have grounded a legal authority to search.  This article was cited favourably on this point by the Manitoba Court of Appeal in R. v. Willis (2003) 174 CCC (3d) 406 and by the Quebec Court of Appeal in R. v. Vigneault (2003) 182 CCC (3d) 322.  Much of the law reviewed in this article was clarified by the Supreme Court of Canada in the decision of R. v. Mann (2004) 185 CCC (3d) 308 (SCC).

Crown Disclosure after Mills: Have the Ground Rules Suddenly Changed? (2000) 28 Criminal Reports (5th) 285: This short article examined the Supreme Court of Canada’s landmark decision in R. v. Mills, [1999] 3 S.C.R. 668, a judgment upholding legislation governing the disclosure of certain types of personal records in trials of a sexual nature.  Rather than considering the primary issues and conclusion, this article critiqued the Court’s reasoning, and particularly its controversial conclusion that the legislation did not even implicate an accused person’s right to disclosure, as that right never extended to material over which a witness retained a reasonable expectation of privacy.  My argument was that this conclusion represented a radical and unnecessary departure from existing jurisprudence, and one that was likely to restrict disclosure of a large volume of material in future and muddy the law in this area.  The conclusions were explicitly adopted in the decision of R. v. Kporwodu (2001) 90 C.R.R. (2d) 182 (Ont. C.J.).

Suspicious Searches: What’s So Reasonable About Them? (1999) 24 Criminal Reports (5th) 124 [Co-authored by Stephane Perrault]: This article considered the rising and rather disturbing trend of courts to sanction searches of various types where law enforcement officials possessed a “reasonable suspicion” of illegal activity.  Rather than critiquing the standard itself, this article focused upon the manner in which the standard was applied, citing instances where judges appeared to accept various indicia as providing “suspicion” notwithstanding the absence of any objective indicators that the indicia were actually suspicious.  The article’s approach to (and definition for) reasonable suspicion was expressly adopted by the Supreme Court of Canada in R. v. Kang-Brown, [2008] 1 S.C.R. 456.

R. v. Edwards: When Two Wrongs Might Just Make A Right (1996) 45 Criminal Reports (4th) 330 [Co-authored with Ursula Hendel]: My first published work, this article was critical of the Supreme Court of Canada’s decision to reject Charter applications where the applicant was not personally affected by the State conduct.  The article suggests that while s.24(1) of the Charter precludes a person from arguing that an unreasonable search of someone else’s property affected them sufficiently to warrant a remedy, it should not preclude arguments founded on s.7 of the Charter, and the contention that the conduct amounted to an abuse of process.  In essence, two wrongs (the original breach, and the decision by the Crown to try and admit the evidence against the accused) could make a right.  Cited favourably by a minority of the Supreme Court of Canada in R. v. La [1997] 2 S.C.R. 680.