Charter Remedies

The Perfect Storm: Section 12, Mandatory Minimum Sentences and the Problem of the Unusual Case (2013) 22 Constitutional Forum 3:  Prepared for a constitutional seminar held by the Center for Constitutional Studies at the University of Alberta, this paper explores the current interaction between section 12 of the Charter and a host of new mandatory minimum sentencing provisions enacted by Parliament.  The paper draws an analogy between the forces driving a conflict between s. 12 and the new sentencing rules to a “perfect storm”, in that several established Charter doctrines are pushing in opposite directions, leading to an inevitable collision between the courts, existing Charter jurisprudence and Parliament. [Downloadable through SSRN].

The Application of Section 24(2) of the Charter of Rights and Freedoms in a Civil Action (2004) 28 Advocates Quarterly 103: Since its enactment in 1982, the Charter of Rights and Freedoms has been the subject of intense judicial and academic examination, and few sections of the Charter have received greater scrutiny than s.24(2) – the clause that permits the judiciary to exclude evidence where to admit it would “bring the administration of justice into disrepute”.  However, in the civil context very little consideration has been given towards how the section should operate and, indeed, to what extent it should operate at all. This article explores this issue and suggests how the Charter’s exclusionary rule might be utilized in civil proceedings.  This paper can be downloaded from the Social Science Research Network.

The New Exclusionary Rule: A Preliminary Assessment of R v Shaheed [2003] New Zealand Law Review 1 [Co-authored with Scott Optican]: In R v Shaheed [2002] 2 NZLR 377 (CA) the Court of Appeal abandoned the decade-old, prima facie rule of exclusion for evidence obtained by the police in violation of the New Zealand Bill of Rights Act 1990. Balancing various factors, a court must now decide if exclusion is a proportional remedial response to the breach of the Bill of Rights at issue in the particular criminal case. This article undertakes a preliminary assessment of Shaheed and concludes that, while a change to the law of exclusion may have been inevitable, the Court failed to justify its abandonment of the prima facie rule and did not adequately rationalize its decision to adopt a proportionality-balancing approach.

Constitutional Exemptions: An Ongoing Problem Requiring A Swift Resolution (2003) 36 University of British Columbia Law Review 231:  This article examines the current status of the exemption remedy and explores the effects of delaying a resolution to the critical question: how should a court treat a situation where legislation is constitutional in most of its applications but occasionally has an impact that is unconstitutional? The answer to this question will have an enormous impact on the manner in which the Charter of Rights is interpreted and extend into our judicial treatment of rights and remedies.  This article was a follow-up and expanded exploration of the issues considered in “Constitutional Exemptions: Myth or Reality” (2000).  This paper can be downloaded from the Social Science Research Network.

Constitutional Exemptions: Myth or Reality (2000) 11 National Journal of Constitutional Law 409: Over the past fifteen years, Canadian trial courts have often resorted to the “constitutional exemption” remedy to uphold the validity of statutory provisions which are generally inoffensive but which have unconstitutional results in rare instances.  This article reviews the history of exemptions and examines their legal foundation. It argues that creation of a valid exemption remedy will require a fair amount of legal creativity, as such a remedy is not generally in accord with the Charter’s structure or established Supreme Court precedent.  This article was cited approvingly by the Supreme Court of Canada in its landmark decision on exemptions, R. v. FergusonIt can be downloaded from the Social Science Research Network.

Creating a Right of Reply: R. v. Rose is Not Without a Few Thorns (1999) 20 Criminal Reports (5th) 305 [co-authored with Ursula Hendel]: My first attempt to address the constitutional exemption issue, this article was highly critical of the Supreme Court of Canada’s decision in R. v. Rose, [1998] 3 S.C.R. 362 which sidestepped legislation of a mandatory nature by suggesting that a trial judge could utilize his “inherent jurisdiction” where not doing so would lead to an unfair trial.

Strip Searches and the Charter: Addressing Conceptual Problems of Right and Remedy (1999) 16 Criminal Reports (5th) 266: This article focused upon strip searches, and attempts by detainees to assert that an unconstitutional strip search could taint other police actions, like breathalyzer tests, leading to exclusion of such evidence.  The article primarily examines the term “obtained in a manner”, and offers a new approach to the types of violations that should allow an applicant to seek to have evidence excluded pursuant to s.24(2) of the Charter.

Calder Should Not Preclude the Readmission of Real Evidence (1998) 14 Criminal Reports (5th) 289: A brief follow-up to the article described below.  Focussing upon the decision of the Ontario Court of Appeal in R. v. Bisko (1998), 14 C.R. (5th) 283 (Ont. C.A.), it contends that the court was wrong to apply Calder to a case where pre-existing evidence was discovered after a Charter violation, and suggested that where an accused person takes the stand and lies about evidence that was excluded under the Charter, the court should be able to reconsider admitting the evidence.

 Trial Fairness Beyond Self-Incrimination: Section 24(2) After R. v. Calder: (1996) 1 Canadian Criminal Law Review 339 [co-authored with Ursula Hendel]: This article concentrates on the Supreme Court of Canada decision in R. v. Calder, [1996] 1 S.C.R. 660, a case where the Crown wanted to cross-examine the accused about a statement which had been excluded to test his credibility, and particularly upon the “fair trial” rationale for exclusion under s.24(2) of the Charter.  The article suggests that the while the result is acceptable, the reasons given for excluding the evidence in Calder were unsatisfying.  More importantly, the case offered an opportunity to expand the “fair trial” rationale beyond its existing focus on whether the evidence was self-incriminating.