The Right to a Fair Trial in Canada

Kent Roach and M.L. Friedland

A. Introduction

The right to a fair trial in Canada depends on the common law, federal legislation such as the Criminal Code,(1) provincial programmes relating to the administration of justice, constitutional conventions and the Canadian Charter of Rights of Freedoms(2) which was added to Canada's constitution in 1982. The Charter was heavily influenced by international rights protection instruments and many of its provisions mirror fair trial rights protected in the International Covenant on Civil and Political Rights (ICCPR).(3) The Charter does not, however, guarantee fair trial rights absolutely. It allows governments to justify laws that violate Charter rights as reasonable limits that are demonstrably justifiable in a free and democratic society.(4) For example, some laws which violate the presumption of innocence, as it has been broadly interpreted by Canadian courts, have been held to be justified and necessary limits on fair trial rights. Section 33 of the Charter also allows the federal and provincial legislatures to declare that a law will operate notwithstanding the fundamental freedoms, legal rights or equality rights protected by the Charter.(5) This power to derogate from the Charter has been used infrequently and never by the federal Parliament in the exercise of its exclusive jurisdiction over the enactment of criminal law and procedure.

Since its enactment in 1982, the Charter has rapidly become the primary focus for the protection of a fair trial. Its enforcement primarily resides with Canada's judiciary which has constitutionally protected independence and broad remedial powers. The Charter has increased the security of fair trial rights in Canada, but it may have made the demand for increased legislative and administrative protection of fair trials less pressing. Canada, like other countries, can benefit from legislative and administrative measures to prevent the violation of fair trial rights, as well as effective judicial remedies when such rights have been violated.

The first section of this paper will outline the structure of criminal courts in Canada with emphasis on their jurisdiction and independence. The following sections will examine pre-trial, trial and appeal procedures as they arise in the criminal process as well as the remedial powers of Canadian courts. Throughout these sections, Canadian protections will be compared with those in the ICCPR. The final section will examine the implications in Canada of making articles 2(3), 9(3), 9(4) and 14 of the ICCPR nonderogable, as well as other means to improve the protection of fair trial rights.

B. The Structure and Independence of the Canadian Judiciary

The independence and impartiality of the judiciary is vital to the fairness of trials. Canada has been fortunate to have a long constitutional convention of judicial independence.(6) At Confederation, s.99 of the Constitution Act, 1867, following the British Act of Settlement of 1701,(7) provided that "the judges of the Superior Courts shall hold office during Good Behaviour, but shall be removable by the Governor-General on address of the Senate and House of Commons." Superior court judges are appointed by the federal government and their salaries and pensions are fixed by the Parliament of Canada. The jurisdiction of the superior courts, which includes their right to declare laws unconstitutional and to issue habeas corpus, is guaranteed under both s.96 of the Constitution Act, 1867 and s.24(1) of the Charter. Superior court judges are also the trial judges for the most serious criminal cases and may sit with a jury.

The jury deliberates in secret and does not give reasons for its verdict. It is composed of twelve people from the place where the trial is held. They must be Canadian citizens and competent in the language of the trial. The jury must be selected in a manner that is fair to both the prosecutor and the accused. Both the prosecutor and the accused have the ability to challenge jurors on the grounds that they will not be impartial(8) and the prosecutor no longer has more peremptory challenges than the accused.(9) The accused has a constitutional right under s.11(f) of the Charter to trial by jury if he or she faces five years imprisonment or more and is not charged with an offence under military law. Under the Criminal Code, however, an accused can elect to be tried by a jury for most indictable offences.(10) Nevertheless, most accused in Canada select trial by judge alone. There is a perception that justice may be speedier, cheaper and more lenient in the lower criminal courts.(11)

The vast majority of criminal offences are disposed in the lower trial courts known as the provincial courts. Provincial court judges (formerly magistrates) are appointed and paid by each province. They do not have jurisdiction to sit with a jury, but they can hear almost every criminal case short of murder. The main constitutional guarantee of their independence is s.11(d) of the Charter which provides that everyone charged with an offence has the right to "a fair and public hearing by an independent and impartial tribunal." Provincial court judges have been held to be independent even though they do not enjoy the same protections and benefits as superior court judges.(12) They have security of tenure and can only be removed for cause after an independent review. They have financial security so that the executive cannot interfere with their salaries and pensions in an arbitrary and discretionary manner. They also have institutional independence in the form of "judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function" such as the assignment of judges to cases.(13) Many reform proposals have called for increased judicial control over all aspects of judicial administration and the creation of a unified criminal court. These have not yet been implemented because they are controversial and not required by the constitution.

The constitutionally protected independence of the judiciary may be in tension to some forms of accountability. For example, a provincially appointed public inquiry to examine the reasons for the wrongful conviction of Donald Marshall Jr. unsuccessfully attempted to require some judges involved in the case to explain the record on which they ruled and why a judge who had been the Attorney General in charge of the original prosecution sat as an appeal judge in the case ten years after the conviction. The Supreme Court ruled that such questioning of the judges would violate judicial independence from the executive and legislative arms of the state.(14) The judges were, however, subject to disciplinary hearings by the Canadian Judicial Council, composed of judges with some lay representation. All Canadian judges are subject to similar forms of review by judicial councils.(15) In addition, the actions of the judges in the Marshall case were strongly criticized in the public inquiry's report and in the press.

In summary, most criminal cases in Canada are heard by provincial courts whose independence is protected under s.11(d) of the Charter. The superior courts hear a minority of criminal cases and only they can sit with a jury. Nevertheless, they have an important and constitutionally guaranteed role, as contemplated in article 2(3) of the ICCPR, in ensuring that there is always a court of competent jurisdiction to hear requests for remedies including habeas corpus.

C. Pre-Trial Procedures

1. Detention Before Trial

As contemplated in article 9(3) of the ICCPR, it is not the general rule that persons awaiting trial shall be detained in custody. Parliament amended the Criminal Code in 1972 in an attempt to minimize the detention of accused people before trial and the posting of money as a condition of release pending trial.(16) This statutory framework is subject to Parliamentary repeal and has been amended several times to make it somewhat easier to detain accused people. Section 11(e) of the Charter now provides that any person charged with an offence has the right "not to be denied reasonable bail without just cause".

The police have statutory obligations to release those they charge unless continued detention is in the public interest having regard to the need to establish the detainee's identity, secure evidence of the crime or prevent crime.(17) Any detainee must be brought before a judicial official without unreasonable delay and within twenty-four hours. If a judicial official is not available within that period, the detainee must be brought before the judicial official "as soon as possible."(18) When the detainee is brought before the judicial official, the prosecutor will generally have to establish that continued detention is necessary to ensure either the detainee's attendance in court or "the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if released, commit a criminal offence or an interference with the administration of justice."(19) A statutory authorization to continue detention when necessary in the "public interest" was struck down by the Supreme Court as excessively vague, but the Court upheld preventive detention when there is a substantial likelihood that an accused would commit crimes if released.(20)

The effectiveness of the legal procedures designed to minimize pre-trial detention requires further study. In 1993/94, approximately 5,000 of 22,000 people in custody in provincial facilities (which house those awaiting trial and those serving less than two years) were on remand awaiting trial.(21) The Manitoba Aboriginal Justice Inquiry found that 55% of Aboriginal accused were held in pre-trial detention compared with 41% of non-Aboriginal accused.(22) An inquiry in Ontario found that Black accused were disproportionately subject to pre-trial detention, especially in drug cases. It also reported that unsentenced prisoners awaiting trial constituted 54% of admissions to provincial facilities in Ontario and that close to one of five accused who were found not guilty at trial had been denied bail.(23)

Bail decisions can be appealed by the accused and the prosecutor. Moreover, automatic reviews are imposed by statute if the accused remains in custody for more than 30 days in less serious matters or 90 days when charged with an indictable offence. Habeas corpus can also be used as a remedy for the denial of bail in exceptional cases involving unconstitutionality.(24) Release, amendments of conditions and orders speeding up the trial are the usual remedies at bail review hearings. Courts usually consider time served before trial when determining punishment should the accused eventually be convicted. Canadian criminal courts do not, however, have jurisdiction to award damages or other forms of compensation for periods of unlawful detention. An expensive civil action for false imprisonment or denial of constitutional rights would have to be brought.

Those detained before trial are generally kept in separate facilities called remand centres. These may be designed to be less punitive than regular prisons, but they also have less facilities and services. Given that prisoners only remain in these remand centres for a limited amount of time, it may be difficult to launch judicial challenges to conditions of confinement.(25) In exceptional cases, an accused subject to cruel, inhuman or degrading treatment while awaiting trial could apply to the superior court for habeas corpus or other Charter remedies. Unlike the United States, Canada has limited experience with litigation concerning conditions of confinement. Canadian courts would likely rely on declaratory relief(26) and only order injunctive relief in cases of flagrant and persistent abuse.

2. Notice, Right to Counsel and Right to Silence

Under s.10(a) of the Charter, a person must be sufficiently informed of the reasons for arrest or detention to retain and instruct counsel.(27) In addition, an accused charged with an offence has the right under s.11(a) of the Charter "to be informed without unreasonable delay of the specific offence charged". These notice requirements would seem to comply with article 14(3)(3a) of the ICCPR.

Canada has traditionally required the prosecution to establish that any statement made by the accused while in custody was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage held out by a person in authority.(28) The main concern of this common law rule was to ensure that statements were reliable, not that they were taken in a manner that respected the accused's right to silence. This has changed with the Charter. Section 10(b) of the Charter now provides those subject to arrest or detention with both a right to retain and instruct counsel without delay and a right to be informed of their right to counsel. The police must inform detainees not only that they can consult a lawyer, but about the availability of legal aid for those who cannot afford a lawyer and duty counsel who can provide temporary legal advice regardless of the suspect's financial status.(29) The Supreme Court has referred to article 14(3)(d) of the ICCPR as reinforcement for the conclusion that "the right to retain and instruct counsel, in modern Canadian society, has come to mean more than the right to retain a lawyer privately."(30) Most provinces have established toll free telephone numbers that allow detainees to contact duty counsel on a twenty four hour basis. The police must inform detainees of such services, but the Supreme Court has refused to require governments to establish such services despite evidence that they are efficient, cost effective and practical.(31) Once a detainee asks to speak to a lawyer, the police have a duty to facilitate access to counsel and not to elicit evidence from the detainee until he or she has had a reasonable opportunity to contact a lawyer.(32) The detainee should be allowed, within reason, to consult a lawyer of his or her own choice and to consult with that lawyer in confidence and privacy.

A detainee has a right to silence and a right not to be compelled to testify or to confess guilt as required by article 14(3)(g) of the ICCPR.(33) If a criminal suspect has asserted the right to silence, the police cannot subvert it by actively eliciting information, but they can use passive means to obtain information.(34) Statements taken in violation of the suspect's right to counsel or right to silence, as well as evidence derived from such statements that could not be obtained from independent sources, will generally be excluded on the grounds that the introduction of such evidence would render a subsequent criminal trial unfair by infringing the accused's right against self-incrimination.(35) In addition, judges cannot comment on the accused's failure to testify and this failure cannot overtly be used against the accused as evidence of guilt or innocence.(36)

The accused's right to silence and right to counsel can be subject to informed and voluntary waiver. For example, if they have been told about their right to counsel and have a basic awareness of what they are doing,(37) detainees can waive their right to counsel. Similarly a detainee who volunteers a statement after asserting his or her right to silence will often be found to have waived the right. Because of the psychological demands of interrogation and detention, accused may frequently waive their rights. The ability to waive rights is part of the Anglo-America adversarial system(38) but it also represents an unwillingness to place fundamental restrictions on gathering evidence from the accused during pre-trial procedures.

Section 10(b) of the Charter protects the accused's right to contact a lawyer without delay upon detention or arrest, but it has not been interpreted as providing a right to legal assistance at trial if the accused cannot afford it. The independent Charter right to a fair trial may, however, be violated by the denial of legal assistance in cases where the interests of justice require counsel as contemplated by article 14(3)(d) of the ICCPR. In other words, a person who has been denied legal aid, but who cannot afford to pay a lawyer for a serious and complex trial may be deprived of liberty in a manner that does not accord with the principles of fundamental justice contrary to s.7 of the Charter. Some courts have suggested that proceedings be stayed until counsel is appointed(39) while others contemplate orders appointing counsel. Appeal courts have statutory powers to appoint state-funded counsel when "it appears desirable in the interests of justice."(40) The practical availability of counsel depends on legal aid plans administered by the provinces and funded by the provinces, federal government and the legal profession. Generally, legal aid is available to accused who cannot afford a lawyer where there is a likelihood of imprisonment and sometimes where there is a likelihood of loss of livelihood. Legal aid services in some provinces are supplied by staff lawyers while in other provinces they are supplied by private lawyers who bill the legal aid plan. Lawyers must be competent enough to provide effective assistance of counsel, but there is no right to counsel of choice except in the most serious of cases. In 1992/93 over $600 million was spent supplying legal aid in Canada, more than double the amount spent in 1988-89 but governments are no longer willing to spend more on legal aid.(41)

3. Right to a Trial without Delay

The primary protection against undue delay is the accused's right under s.11(b) of the Charter to a trial in a reasonable time. This right does not apply to delay before a charge is laid and there is no statute of limitations which prevents the prosecution of serious offences committed long ago.(42) Whether the accused's right to a trial in a reasonable time has been violated depends on the length of the delay (delays of more than eight to ten months can be suspect); any explanation for the delay, waiver by the accused, and prejudice suffered by the accused. The courts will allow more time for complex cases, but systemic delay caused by the unavailability of courts or prosecutors is charged against the prosecution. The minimum remedy for a violation of the right to a trial in a reasonable time is a stay of proceedings which permanently terminates the prosecution.(43) After one 1990 case appeared to set a 6-8 month limit on systemic delay, over 50,000 charges were stayed in Ontario.(44) Courts seem determined to avoid a repetition of this experience, even if the result is somewhat less protection for speedy trials. They are increasingly willing to hold that the accused's participation in the setting of trial dates constitutes waiver and are more reluctant to find a violation in the absence of evidence that the accused has suffered prejudice such as pre-trial detention or the inability to make full answer and defence. This is an area where less drastic remedies and statutory standards may be helpful.

D. Trial Procedures

1. Right to a Public, Local Trial with the Accused in Attendance

Section 11(d) of the Charter provides that a person charged with an offence has the right to "a fair and public hearing" while s.2(b) of the Charter protects "freedom of expression including freedom of the press and other media of communication". Judgments are made public, but the full name or identifying information of accused, witnesses or victims under 18 years of age or complainants of sexual offences are not made public. These restrictions on freedom of expression have been held to be reasonable limits under s.1 of the Charter(45) and they would likely qualify under the exceptions to the publicity principle recognized under article 14(1) of the ICCPR. Trials are generally open to the public, but can be closed in the interests of public morals, maintenance of order or the proper administration of justice.(46) One recent trial in Ontario was closed to the public and the American press because the judge concluded that such measures were necessary to protect the effectiveness of a publication ban and the right of another accused in the matter to a fair trial.(47) Canadian courts retain common law powers of contempt and statutory powers to order delays on publication of pre-trial hearings and matters heard when the jury is absent.

Compared to the United States, Canada relies less on questioning and sequestering jurors and more on the law of contempt and publication bans. Nevertheless, this balance may be changing. The Supreme Court has recently indicated that courts should only impose publication bans when alternatives such as adjournments of trials, changing the location of trials, and questioning, instructing and sequestering jurors are not sufficient. Even if a publication ban is necessary, its scope and timing must be as limited as possible and the good achieved by protecting the fairness of the trial must be greater than the harm to freedom of expression.(48)

Trials will be held in the territorial jurisdiction within which the alleged crime occurred unless the court believes that a fair trial is not possible in that location after jurors have been screened and instructed to disregard prejudicial publicity. The accused has a right to be present at trial so long as he or she does not interfere with the proceedings.(49) The accused is deemed to waive the right to be present if he or she absconds during the course of the trial. The trial can then be conducted in the accused's absence and adverse inferences drawn from the absence. An accused can be found unfit to stand trial if he or she cannot understand the nature and object of the proceedings, their possible consequences, or communicate with counsel because of a mental disorder. If a person unfit to stand trial is detained, the prosecutor will have to prove its case against the accused.

Section 14 of the Charter goes beyond article 14(3)(f) of the ICCPR by providing that either a party or witness in any proceedings who does not understand or speak the language of the proceedings or who is deaf has the right to the assistance of an interpreter. The Supreme Court has indicated that an accused who requests an interpreter should generally be provided one unless the accused's request is made for an oblique motive. The interpretation must be contemporaneous and competent.(50)

2. Right to Confront Witnesses and the Role of Crime Victims

Section 7 of the Charter has been interpreted to protect the accused's right to present full answer and defence as contemplated in article 14(3)(e) of the ICCPR. In a controversial decision, the Supreme Court held that this right was violated by a statutory provision which prohibited the accused from cross-examining a sexual assault complainant about her prior sexual contact with people other than the accused, apart from the incident in question.(51) A minority of the Court argued that any such evidence would have limited relevance to the accused's guilt and could distort the trial process by sexist stereotypes. Parliament responded to this decision by enacting a new provision requiring judicial approval for the introduction of any evidence of the complainant's prior sexual activity with another person or the accused.(52) In deciding whether to admit such evidence, judges are instructed to consider not only "the interests of justice, including the right of the accused to make a full answer and defence", but also "society's interest in encouraging the reporting of sexual assault offences", "the need to remove from the fact-finding process any discriminatory belief or bias", "potential prejudice to the complainant's personal dignity and right of privacy", and "the right of the complainant and of every individual to personal security and to the full protection and benefit of the law".(53) This legislative restriction on cross-examination was in part motivated by a vision of equality which emphasizes ameliorating the conditions of the disadvantaged, in this case women who are disproportionately the complainants in sexual assault trials.(54)

Even if this new legislation still violates the accused's rights, it may well be found by the courts to be justified under s.1 of the Charter as necessary to protect the interests of women and victims of sexual assault. If this new law was struck down by the courts as an unjustified violation of the accused's right to a fair trial, there would be significant support in Canada for Parliament to use its s.33 override to re-enact the legislation notwithstanding the fair trial rights of the Charter.

The accused's right to full answer and defence can be violated if he is not allowed to cross-examine a complainant in a sexual assault trial on mental health records relevant to issues in the trial.(55) On the other hand, the courts have upheld legislation that allows screens between the accused and the witness and videotaped evidence in chief in order to address the trauma that young complainants in sexual assault trials may face when testifying.(56) In part in response to increased awareness and reporting of sexual abuse, juries are no longer automatically warned that evidence given by children is unreliable. Similarly, hearsay evidence no longer is automatically excluded, but may be admitted when it is necessary in the case and there are reasons to believe it is reliable.(57)

Crime victims may provide courts with victim impact statements to be used at sentencing and courts may require the accused to make restitution to the victim as part of the sentencing process. Courts have considered the interests of crime victims as important enough to justify the limitation of the accused's Charter rights in cases dealing with hate propaganda and obscenity.(58) Victims may also seek relief from court orders such as subpoenas of confidential information on the basis that such orders infringe their Charter rights.(59) In addition, Parliament has attempted to justify legislation limiting the accused's right to cross-examine a complainant in a sexual assault trial about her prior sexual conduct and the defence of intoxication by reference to the prevalence of violence against women and children.(60)

Section 7 of the Charter has been interpreted to require the prosecutor to disclose relevant evidence in his or her possession to the accused at an early stage in the proceedings.(61) There have been practical problems in administering this important right and this is an area that could be clarified by statutory standards. The accused in criminal cases, like civil litigants, has a right to all relevant documents and exhibits in the adversary's possession unless protected by some specific rule of privilege. The accused does not necessarily have the ability that civil litigants have to question prospective witnesses before trial as part of a discovery process. The accused may only examine witnesses under oath before trial if there is a preliminary inquiry. Preliminary inquiries are held in the relatively few cases tried in superior court and their purpose is to determine whether the prosecutor can present evidence, that if believed by a jury, would support a conviction. Evidence given at the preliminary inquiry can be used against the accused at trial if the witness is not available.

3. The Presumption of Innocence

Section 11(d) of the Charter provides that everyone charged with an offence has the right "to be presumed innocent until proven guilty according to law" as contemplated by article 14(2) of the ICCPR. Courts have been reluctant to stay proceedings because of prejudicial comments or actions by the executive, but they have left this option open should it prove impossible to empanel an impartial jury.(62)

The presumption of innocence has been interpreted as requiring the accused to be acquitted if there is a reasonable doubt about any element of the offence or any defence or collateral matter which would prevent the accused's conviction.(63) A mandatory presumption also violates the presumption of innocence, even if it does not require the accused to prove something on the standard of a balance of probabilities used in civil trials, but rather to point to some evidence capable of raising a reasonable doubt about an element of a crime.(64) Canadian courts have, however, held that several laws violating the presumption of innocence constitute a justified and reasonable limitation on the presumption of innocence that is necessary to facilitate the prosecution of specific crimes and regulatory offences.(65) A person must also prove on a balance of probabilities that his or her Charter rights were violated in order to obtain a remedy.

4. Punishment

Section 12 of the Charter prohibits cruel and unusual treatment or punishment. This prohibits punishment that is so excessive that it would outrage decency and result in gross disproportionality given the gravity of the crime, the personal characteristics of the offender and the need to punish, rehabilitate, deter or incapacitate the particular offender. A minimum penalty of seven years for importing narcotics has been struck down as cruel and unusual punishment on the basis that it could be applied to a young person importing a small amount of marijuana,(66) but a mandatory sentence of life imprisonment without eligibility of parole for 25 years has been upheld for those who knowingly kill a person while committing another serious crime.(67) Legislation providing for the indeterminate detention of repeat violent offenders has been upheld on the basis of society's interest in rehabilitating and incapacitating such offenders and because there are regular reviews to ensure that detention is still necessary.(68) A person cannot be imprisoned for breaching a contract, but evidence suggests that over 25% of prisoners in jails for those serving less than 2 years have been imprisoned for failure to pay fines.(69) The Criminal Code now instructs judges to consider an offender's ability to pay fines or work them off. The death penalty was abolished in Canada in 1976(70) and the last execution was in 1962. In 1987, Parliament voted against its reinstatement. Extradition of an offender to face the death penalty in another country has been held not to violate the Charter.(71)

As contemplated under article 14(7) of the ICCPR, people are protected from being tried or punished again for an offence once they have been finally acquitted of an offence. Following appeal procedures in Canada, however, the accused may have to face a new trial should the prosecutor successfully appeal the accused's acquittal or the first trial end in a mistrial. The accused is protected under s.11 of the Charter against ex post facto laws unless the act was an offence under Canadian or international law. The Supreme Court has upheld legislation allowing for the prosecution of war crimes and crimes against humanity committed outside of Canada, but also required that the prosecutor prove knowledge or wilful blindness of the circumstances that would make the crime a war crime or crime against humanity.(72) Because of concerns about the difficulty of proving this form of fault, the government has abandoned criminal prosecutions of suspected war criminals in favour of attempts to deport them for not revealing their involvement in war crimes when immigrating to Canada after World War II.

E. Appeal Procedures

As contemplated under article 14(5) of the ICCPR, appellate courts play an important role in ensuring the fairness of trials and the accuracy of verdicts. Judges have a discretion to release a convicted person pending appeal, but this release can be denied if detention is in "the public interest."(73) Canada's Criminal Code provides generous rights of appeals for both the prosecutor(74) and the accused. For more serious indictable matters,(75) the accused can appeal matters of law as of right, and matters of fact or the fitness of sentence with leave to a provincial Court of Appeal, usually sitting in panels of three judges. An appeal court can consider and hear fresh evidence. An accused's appeal can be allowed on the grounds that it is unreasonable or not supported by the evidence, entails a miscarriage of justice, or an error of law. A legal error made by the trial judge will not, however, require a new trial if the appeal court concludes "no substantial wrong or miscarriage of justice occurred."(76) A recent Supreme Court decision which suggests that trial judges do not have to provide reasons for their decisions(77) may make it more difficult for accused in trials without a jury to exercise their statutory rights to appeal on the basis that the trial judge made an error of law. The accused can appeal to the Supreme Court as of right on any matter from which a judge of the provincial Court of Appeal dissents or by leave on matters of national importance. The right to appeal depends on statute and has not yet been constitutionalized. Nevertheless, courts have been creative in finding rights of appeal based on the existing statutory framework, even for third parties such as the media or witnesses who claim that their rights have been violated in criminal proceedings.(78)

The federal Minister of Justice has a discretionary power to order a new trial or direct an appeal when an accused applies for the mercy of the Crown.(79) This power was used in the Donald Marshall Jr., David Milgaard and William Neepose cases in which wrongful convictions were overturned after the accused had served substantial prison terms. This review mechanism has been criticized for its discretionary nature, but it does allow competent administrative or legislative authorities to provide remedies as contemplated under art. 2(3)(b) of the ICCPR.

F. Other Remedies

As examined above, provincial courts dispose of most criminal matters. They enjoy not only judicial independence but broad remedial powers to protect fair trial rights. They can declare legislation invalid in the case before them so that no one is convicted under an unconstitutional law.(80) Such a holding, however, may not have the same precedential effects as a declaration by a superior court that legislation is of no force and effect because it is unconstitutional.(81) Provincial courts may also examine the constitutionality of searches authorized by other courts(82) and exclude evidence obtained through a search and seizure or right to counsel violation. They may also stop a prosecution through a stay of proceedings as a remedy for a violation of a Charter right or to protect their process from abuse. Provincial courts cannot award damages so that a person seeking damages must bring separate (and expensive) proceedings in the superior courts. They have, however, awarded costs as a constitutional remedy.(83)

Although they determine only a minority of criminal matters, superior courts play an important remedial role. They have a constitutionally guaranteed jurisdiction under s.96 of the Constitution Act, 1867 so that their traditional functions cannot be transferred to other tribunals, including provincial courts.(84) In order to ensure that a person can always apply to a court of competent jurisdiction under s.24(1) of the Charter "to obtain such remedy as the court considers appropriate and just", superior courts have "a constant, complete and concurrent jurisdiction for s.24(1) applications."(85) The constitutionally protected jurisdiction of the superior courts includes the right to hear applications for habeas corpus,(86) to issue declarations of unconstitutionality,(87) to issue injunctive relief, to issue prerogative remedies when inferior tribunals exceed their jurisdiction(88) and to hear damage claims arising from malicious prosecutions.(89) Compensation for the wrongfully convicted as contemplated under article 14(6) of the ICCPR, however, is generally left to ad hoc decisions by the government. There have been proposals to establish independent commissions to investigate claims of wrongful conviction and order compensation, but these have not yet been implemented by Parliament.(90)

The superior courts would continue to exercise their important role in times of emergencies and even if legislation was introduced under s.33 of the Charter notwithstanding fair trial rights protected under the Charter. The existence and jurisdiction of the superior courts would remain constitutionally protected under both s.96 of the Constitution Act, 1867 and s.24(1) of the Charter which are not subject to the s.33 override. The superior courts in Canada ensure judicial review of detention as required by article 9(4) of ICCPR, as well as the right to seek an effective judicial remedy as contemplated under article 2(3). Making these rights nonderogable would not significantly change the present constitutional position of the superior courts in Canada.

G. Other Procedures

1. The Treatment of Young Offenders

Young people between 12 and 17 years of age are subject to the Young Offenders Act.(91) The Act provides that young persons should not be detained with adults either before or after trial. There are provisions ensuring that a young person receives more protection than contemplated under the Charter with respect to the right to counsel and the right to silence.(92) A young person who admits guilt can voluntarily accept diversion from the court system if the prosecutor believes it is appropriate having "regard to the needs of the young person and the interests of society", but a refusal by a province to make such programmes available does not violate the young person's Charter rights.(93) Imprisonment is limited, subject to yearly reviews and a judge can direct a young offender to be imprisoned in "secure" or "open" custody. The procedures in the Act take into account the desirability of promoting the rehabilitation of young offenders as contemplated under article 14(4) of the ICCPR. Nevertheless, the Act also stresses the need to protect society and hold young offenders accountable. Public concerns about youth crime has led to amendments to the Act to increase maximum sentences for serious crimes and to make it easier to transfer young offenders to be tried and punished as adults. Moreover, the number of young offenders sentenced to custody has increased significantly in recent years with the majority being held in custody for non-violent offences.(94)

2. Military and Administrative Justice

The right to a jury trial specifically excludes offences under military law. The Supreme Court has held the use of ad hoc military officers as court martial judges violates the accused's rights to an independent and impartial tribunal under s.11(d) of the Charter.(95) Military officers used as judges in court martials are now appointed for set periods, assigned to individual cases by judges and protected from demotion because of their performance as judges. Other officers who serve on court martials are now assigned on a random basis. Appeals from court martials can be taken to a court of appeal with civilian judges. Civilians are generally not subject to military justice, but it appears that a member of the military can still be tried in the military courts if the offence is not connected to military service. Summary trials before officers are available and they may violate Charter standards of fairness if they result in detention and the accused does not have the ability to opt for a more formal court martial.(96)

Those subject to administrative justice will not enjoy the specific legal rights guaranteed in s.11 of the Charter unless they face true penal consequence such as imprisonment.(97) Nevertheless, administrative proceedings must accord with the principles of fundamental justice under s.7 of the Charter if they result in any loss of liberty or security of the person. In an early Charter case, it was held that rejecting refugee claims without an oral hearing was fundamentally unfair.(98) Subsequently, it was decided that a refugee applicant did not have the right to counsel when subject to routine information gathering.(99) Section 7 of the Charter generally protects the basic tenets of natural justice in administrative proceedings which include a right to know the case against you and the right to an impartial judge. Superior courts may supervise the administrative process, but they will generally defer to administrative procedures authorized by statute even when these preclude immediate access to the superior courts or habeas corpus.(100)

H. Improving the Domestic and International Protection of Fair Trials

1. The Implications of Making Fair Trial Rights Nonderogable

Statutory and constitutional provisions governing detention before trial protect the rights recognized under articles 9(3) and (4) of the ICCPR with the possible exception of the ability to detain a person awaiting trial because of a substantial likelihood that he or she will commit a criminal offence if released. Most of the procedural rights contemplated under article 14 are protected under the legal rights of the Charter including the right to notice, the right to silence, the right to counsel including the right to legal aid when necessary for a fair trial, the right to a public trial and decision, the presumption of innocence, the right to an interpreter, the right to examine witnesses and protection against double jeopardy. Violations of the Charter can be redressed by the courts, but there is no explicit domestic obligation on Canadian legislative and administrative authorities to adopt measures that will prevent Charter violations.

As discussed above, making articles 2(3) and 9(4) of the ICCPR nonderogable would affirm the entrenched role of superior courts under the Canadian Constitution. This is not likely to be controversial given that any reductions to the role of the superior courts would require constitutional amendments. The implications of making articles 9(3), and 14 nonderogable are more complex. The legal rights in ss.7-14 of the Charter protect the fair trial rights contemplated in the ICCPR, but are subject to limitations that can be justified as reasonable limits under s.1 of the Charter. In contrast, only some fair trial rights, such as the right to a public trial in article 14(1) of the ICCPR, are subject to express limitations and the limits must relate to certain objectives such as "morals, public order (ordre public) . . . national security . . . the interest of the private lives of the parties . . . the interests of justice." Section 1 of the Charter may allow for the justification of more exceptions to fair trial rights than the ICCPR. In addition, provincial and federal legislatures also have the ability under s.33 of the Charter to enact laws notwithstanding these legal rights for a renewable five year period. The whole point of making fair trial rights nonderogable would be to ensure that legislatures can never opt out of their protections. Making fair trial rights nonderogable could imply a commitment by the federal and provincial governments of Canada not to enact legislation notwithstanding the fair trial provisions of the Charter.

The ability to justify limits on rights under s.1 of the Charter is an established feature of Canadian constitutional law and one that many Canadians would be reluctant to see curtailed by international law commitments. Section 1 enables Canadian courts to define the right in a broad and generous fashion while allowing governments to justify, in both the legislature and the courts, exceptions when required by particular contexts.(101) For example, Canadian courts have defined the presumption of innocence broadly, but have upheld laws violating this right on the basis they were required to facilitate the prosecution of specific crimes.(102) Similarly, protections of free expression have been defined broadly to include hate literature and obscene materials, but courts have accepted criminal sanctions against such expression as required to protect the rights of racial and religious minorities, women and children.(103) Governments bear a significant burden when they attempt to justify restrictions on Charter rights under s.1 to the courts. In order to be saved under s.1 of the Charter, measures must be prescribed by a democratically enacted law and enacted for an important objective which is pressing and substantial in a free and democratic society. They must also be rationally connected to the objective and limit the right as little as possible in order to advance the important objective. Finally, the good that the measure achieves in advancing its important objective must outweigh the harm to the right in the particular context.(104)

A strong argument can be made that making fair trial rights in the ICCPR nonderogable will not undermine the fundamental role of s.1 in the Charter. Severe limitations on basic fair trials are not likely to be upheld under s.1 of the Charter. Canadian courts defer less to legislatures under s.1 when the state is proceeding against an individual and not trying to distribute resources among competing groups.(105) Moreover, the Supreme Court of Canada has been very reluctant to uphold a violation of the principles of fundamental justice protected under s.7 of the Charter under s.1. Legal rights against retroactive laws and cruel and unusual punishment protected under ss.11 and 12 of the Charter may already be nonderogable in times of emergency under article 4(2) of the ICCPR. Finally, international law concepts of margins of deference or appreciation might result in finding no violation of the ICCPR in many cases in which domestic courts would uphold a law under s.1 of the Charter. The ICCPR would re-enforce minimal requirements of a fair trial, with broader, more controversial extensions of fair trial rights being subject to limitation under s.1 of the Charter.

Canadian courts have found some support for s.1 limitations from international law beyond the fair trial provisions in the ICCPR. The Supreme Court has indicated that "Canada's international human rights obligations should inform not only the interpretation of the content of the rights guaranteed by the Charter, but also the interpretation of what can constitute pressing and substantial s.1 objectives which may limit restrictions upon those rights."(106) For example, a hate propaganda offence restricting expression was upheld by the Supreme Court under s.1 in part because of the importance of preventing discrimination as contemplated in articles 19 and 20 of the ICCPR and article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination.(107)

Making the fair trial rights of the ICCPR nonderogable would suggest that Canadian legislatures not use their powers under s.33 of the Charter to pass laws notwithstanding the legal rights of the Charter. There is less support for, and much less utilization of, the s.33 override in Canada than there is for s.1 of the Charter.(108) Nevertheless, some would argue that s.33 is a necessary safety valve to ensure that a non-elected judiciary is not able to defy intense preferences by majorities. Others argue that its availability may actually allow the unelected judiciary to be more vigourous in its protection of unpopular minorities.(109) The willingness of courts to allow limitations on rights to be justified under s.1 makes it less necessary for courts to invoke the s.33 override. For example, Parliament quickly re-enacted restrictions on the accused's ability to cross-examine sexual assault complainants after the Supreme Court struck down previous restrictions as an unjustified violation of the accused's rights to full answer and defence. This law will be defended under s.1 of the Charter as necessary to protect the privacy and equality rights of female victims of sexual assaults and to encourage the reporting of such under-reported crimes. If the courts found this s.1 justification wanting, some support would exist in Canada for using the s.33 override.

The use of the s.33 override would be less of a danger if employed to respond to an unpopular judicial interpretation of a fair trial right after a full public debate than if hastily invoked in an emergency to derogate from a basic fair trial right such as the right to have detention reviewed or not to be compelled to confess guilt. Canada's Emergencies Act (110) indicates an intent in its preamble that the government would still be bound by the Charter and have regard to the ICCPR. If s.33 is retained as a safety valve against a non-elected judiciary, thought should be given to ensuring that any law invoking s.33 of the Charter only be enacted after full Parliamentary debate, perhaps followed by some independent inquiry into the matter.

In general, making fair trial rights nonderogable would not require significant changes in Canadian law and practice. It would affirm the important role that the Charter and the courts play in the criminal justice system while also committing Canadian governments in times of fiscal restraint to continue to provide funds for legal assistance, interpreters, rehabilitation programmes for young people and compensation for the wrongfully convicted. At the same time, the United Nation's Human Rights Committee and other international bodies should be aware of the important role that s.1 of the Charter plays in allowing democratically enacted laws to limit fair trial rights when required in particular contexts.

2. Other Methods to Protect Fair Trial Rights

Canada's experience under the Charter demonstrates the potential and limitation of rights protection instruments. On the one hand, the Charter has given litigants and judges new and powerful tools to protect fair trial rights. On the other hand, it has contributed to a climate in which governments are inclined to see the standards in the Charter as enforced by the courts as maximum, not minimal standards of fairness. Legislatures had been relatively active in protecting fair trial rights before the Charter, but they have taken a back seat to courts since its enactment and have spent much time reacting to judicial decisions. There are limits to the effectiveness of judicial remedies and legislative and administrative reforms are best-suited to preventing violations of fair trial rights before they happen. In Canada, rights to silence, disclosure, speedy trials, legal representation at trial and against wrongful convictions all could benefit from legislative and administrative reforms to supplement the rights that the courts will enforce. One promising approach is to remind Canadians that the judicially enforced Charter does not exhaust our commitment to rights protection. Article 2(3) of the ICCPR contemplates administrative and legislative authorities taking enforcement measures. The right to legal assistance in article 14 also implicitly requires positive governmental action. In turn, international bodies should monitor the enforcement measures taken by legislative and administrative bodies, as well as the availability of judicial remedies in individual cases. Commitment to nonderogable rights must not be allowed to produce complacency about the need to improve the fairness of legal procedures through legislative and administrative reforms.

It is important that individual accused not be relied upon to vindicate fair trial rights. Many of the remedies contemplated under both the Charter and the ICCPR are available only to a person whose rights have been violated and even then an individual can waive the right intended for his or her benefit. If the conditions are not too oppressive and there is access to competent legal advice and the courts, these individual remedies will play an important role in ensuring fair trial rights. Nevertheless, thought should be given to mandatory reviews that are not dependent on the initiative of individual accused or their lawyers. For example, s.525 of Canada's Criminal Code provides for mandatory reviews of pre-trial detention when a trial has been delayed beyond a set period. State-mandated public inquiries have also played an important role in examining cases of suspected abuse and recommending reforms.(111) In some provinces, such inquiries are mandatory when a person dies in custody and thought should be given to expanding the range of mandatory inquiries and ensuring that governments consider and respond to the reports of independent inquiries.

In order to avoid reliance on the individual accused, third parties and non-governmental organizations should have a greater role in protecting fair trial rights. The media in Canada has played an important role in protecting public trials, but there are few non-governmental organizations concerned with legal rights and the wrongly convicted. An independent administrative agency or ombudsperson could also play an important role in supplementing the activities of individuals seeking relief in the criminal justice system. Random visits by respected individuals to police stations, holding centres, lower criminal courts and jails may also be useful.

Rather than waiting for an emergency to occur, it may be better for the legislature to establish procedures and minimal standards for emergencies before they happen. Canada has enacted an Emergencies Act(112) which states in its preamble that in emergencies, governmental action would be subject to the Charter and "must have regard to the ICCPR, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency". Section 4 of the Act prohibits the cabinet from altering the provisions of the Act in an emergency(113) or detaining people on the basis of race, national or ethnic origin, colour, religion, age or mental and physical disability.(114) The Act also provides for legislative ratification by both Houses of Parliament within 7 days of the declaration of an emergency,(115) as well mandatory compensation(116) and reviews and inquiries into the use of emergency powers.(117) It could be argued that such a statute will make it easier to declare emergencies, but that has not been the experience in Canada. Rather, the statute makes it more likely that emergencies, should they occur, will be governed by legal standards. Access to the courts through habeas corpus should also continue through emergencies.

Technology may also help to protect fair trial rights. Video or tape recording police questioning of detainees may be an efficient and effective means of protecting the rights to silence and counsel and lessening reliance on judicial determinations of the credibility of the accused and the police. Most provinces in Canada have established toll free telephone numbers to ensure that detainees can speak to a duty counsel at all hours of the day. This service is well-used and cost effective, but the Supreme Court unfortunately has refused to mandate it as a constitutional requirement.(118) Photocopying and word processing make it easier to disclose to the accused evidence in the prosecutor's possession and to make applications to the authorities for relief. Electronic devices to track the whereabouts of accused who may flee before trial may be a less restrictive alternative to pre-trial detention. These reforms will most likely be introduced by administrative experiments, not court orders.

Although greater attention should be paid to legislative and administrative enforcement, the judicial enforcement of fair trial rights can also be improved. The remedial powers of courts should be as broad as possible. In Canada, for example, criminal courts should have statutory jurisdiction to award compensation for violation of fair trial rights and to request that the executive or some independent body investigate matters if there is reason to believe that an individual case is a symptom of a broader problem. In general, courts should be sensitive to the broader aspects of their rulings while not sacrificing their obligation to provide aggrieved individuals with remedies. The superior courts in Canada play a crucial role in ensuring the fairness of the trial, but their processes should be made more expeditious and less expensive.

In conclusion, making the fair trial provisions of the ICCPR nonderogable would continue the trend towards more formal rights protection in Canada. It would underline the central role of fair trial rights in the Charter and affirm Canada's commitment that, even in times of emergencies, basic procedures should be respected. It would suggest that Canadian legislatures not employ their powers under s.33 of the Charter to declare that laws will operate notwithstanding the legal rights protected under the Charter, especially in times of emergencies. International bodies should be sensitive to the fact that under s.1 of the Charter, Canadian governments can justify legislation which limits fair trial rights as demonstrably justified in a free and democratic society. This process of justification requires courts and other rights protections bodies to focus not only on the rights of the accused to a fair trial, but compelling public interests and the rights of others affected by the criminal process.

1. 1 R.S.C. 1985 c.C-34 (as amended).

2. 2 Part I of the Canada Act, 1982 U.K. c.11 (henceforth "the Charter").

3. 3 21 U.N. GAOR Supp.16, U.N. Doc. A/6316, 1996, p.52, in force, along with the Optional Protocol to the Covenant on Civil and Political Rights, for Canada August 19, 1976; Canada Treaty Series 1976 No. 47 (henceforth "the ICCPR").

4. 4 Section 1 of the Charter provides: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." This limitation clause does not require the proclamation of a public emergency. Moreover, the objectives of laws limiting rights are not restricted to matters such as morals, public order, national security or the fundamental rights and freedoms of others.

5. 5 A legislature can opt out of a specific Charter right by a simple majority, but the declaration will lapse if not re-enacted after 5 years.

6. 6 See generally, M.L. Friedland, A Place Apart: Judicial Independence and Accountability in Canada, 1995; Peter Russell, The Judiciary in Canada: The Third Branch of Government, 1987.

7. 7 1701, 12 & 13 William III, ch. 2.

8. 8 Canadian lawyers cannot ask prospective jurors as many questions as allowed in American trials in order to determine whether they will be impartial. Some Canadian courts have allowed prospective jurors to be questioned about whether their deliberations will be affected by racial prejudice, while others have not. See generally, Kent Roach, "Challenges for Cause and Racial Discrimination," Crim.L.Q., vol.37, 1995, p.410.

9. 9 Bain (1992) 69 C.C.C.(3d) 481 (S.C.C.). Depending on the seriousness of the charge, both the prosecutor and the accused may dismiss four, twelve or twenty prospective jurors without

establishing cause.

10. 10 The accused cannot be tried with a jury for summary conviction offences which generally carry a maximum penalty of 6 months imprisonment or less serious indictable offences such as theft under $5000. For murder and treason, there must be a trial by jury unless both the accused and prosecutor consent to trial by judge alone. The accused does not have a right to waive trial by jury.

11. 11 Peter Russell, The Judiciary in Canada, 1987 p. 275.

12. 12 Valente (1985) 23 C.C.C.(3d) 193 (S.C.C.). Part-time judges who hold office during good behaviour have been held to have sufficient impartiality from the government. Lippe (1990) 64 C.C.C.(3d) 513 (S.C.C.).

13. 13 Valente (note 12), p. 222. The protections in s.11(d) of the Charter satisfy most of the standards contained in the United Nations' Basic Principles on the Independence of the Judiciary.

14. 14 Mackeigan (1989) 50 C.C.C.(3d) 449 (S.C.C.).

15. 15 Friedland (note 6), ch. 5.

16. 16 Before that time, empirical studies demonstrated that many accused were detained before trial. See M.L. Friedland, Detention Before Trial, 1965.

17. 17 Criminal Code ss.495(2)(d); 497(1)(f); 498(1)(i).

18. 18 Criminal Code s.503(1).

19. 19 Criminal Code s.515(10). In drug trafficking and some other cases, it is the accused who must prove that he or she will return for trial and not commit any offences if released. This reverse onus has been held to be consistent with the right not to be denied bail without just cause in s.11(e) of the Charter. Pearson (1992) 77 C.C.C.(3d) 124 (S.C.C.).

20. 20 Morales (1992) 77 C.C.C.(3d) 91 (S.C.C.).

21. 21 Adult Correctional Services in Canada, 1993/94, 1995, p. 61. There were also approximately 13,000 more prisoners serving time in federal jails.

22. 22 Manitoba Aboriginal Justice Inquiry Report, 1991, p. 102.

23. 23 Report of the Commission on Systemic Racism in the Ontario Criminal Justice System, December, 1995, pp. 113,123.

24. 24 Pearson (1992) 77 C.C.C.(3d) 124 at 133 (S.C.C.).

25. 25 Maltby (1984) 10 D.L.R.(4th) 745 (Sask.C.A.) (constitutional challenge to conditions in remand centre dismissed because of mootness because prisoner no longer detained in that facility). But see M(T) (1991) 4 O.R.(3d) 203 (Prov.Div.) (charges for vandalizing holding cells stayed as a remedy because the conditions of confinement violated the young offender's rights to counsel and against cruel and unusual punishment).

26. 26 McCann (1975) 68 D.L.R.(3d) 661 (F.C.T.D.). For an account of the limited effectiveness of a judicial declaration that conditions of solitary confinement amounted to cruel and unusual punishment see Michael Jackson, Prisoners of Isolation: Solitary Confinement in Canada,

1983.

27. 27 Evans (1991) 63 C.C.C.(3d) 289 (S.C.C.).

28. 28 Boudreau (1949) 94 C.C.C. 1 (S.C.C.). This accords with article 8(3) of the American Convention on Human Rights which provides that "a confession of guilt shall be valid only if it is made without coercion of any kind."

29. 29 Brydges (1990) 53 C.C.C.(3d) 330 (S.C.C.).

30. 30 Id., p. 349. On the use of international law in interpreting the Charter see Anne Bayefsky International Human Rights Law, 1992.

31. 31 Prosper (1994) 92 C.C.C.(3d) 353 (S.C.C.); Bartle (1994) 92 C.C.C.(3d) 289 (S.C.C.). Unlike in its earlier case, no reference was made to article 14(3)(d) of the ICCPR in these more restrictive decisions. On the operation of the 1-800 duty counsel service in Niagara Falls, Ontario compared to the reliance on private attorneys in Niagara Falls, New York see Kent

Roach and M.L. Friedland, "Borderline Justice: Policing in the Two Niagaras,"

23 Amer. J. of Crim.Law, 1996 (forthcoming).

32. 32 Manninen (1987) 34 C.C.C.(3d) 385 (S.C.C.); Prosper (1994) 92 C.C.C.(3d) 353 (S.C.C.).

33. 33 There is generally no right to refuse to testify in administrative or regulatory proceedings, but evidence given under statutory compulsion is not admissible in subsequent criminal proceedings. Moreover, the prosecutor must demonstrate that any evidence in subsequent criminal proceedings was obtained independently of the compelled testimony. Branch (1995) 97 C.C.C.(3d) 11 (S.C.C.).

34. 34 Hebert (1990) 57 C.C.C.(3d) 1 (S.C.C.); Broyles (1991) 68 C.C.C.(3d) 308 (S.C.C.).

35. 35 The admissibility of unconstitutionally obtained evidence depends on s. 24(2) of the Charter which instructs courts to exclude "if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute." In Collins (1987) 33 C.C.C.(3d) 1, the Supreme Court indicated that exclusion is generally required if the admission of the evidence will result in an unfair trial by forcing

the accused to participate in self-incrimination or will amount to judicial condonation of a serious Charter violation. The seriousness of the violation (but not the unfairness of self-incrimination caused by the accused's participation) will be balanced against the importance of the evidence and the seriousness of the offence charged. See generally, Kent Roach, Constitutional Remedies in Canada, 1994, ch. 10.

36. 36 Canada Evidence Act R.S.C. 1985 c.C-5 s.4(6).

37. 37 This does not necessarily require that the accused understand all the consequences of making a statement. Whittle (1994) 92 C.C.C.(3d) 11 (S.C.C.).

38. 38 See Richard Frase, "The Right to a Fair Trial" (this volume); Mirjan Damaska, The Faces of Justice and State Authority, 1986, pp. 99-101.

39. 39 Rowbotham (1988) 41 C.C.C.(3d) 1 (Ont.C.A.).

40. 40 Criminal Code s. 684.

41. 41 Nearly 1.2 million applications for legal aid were made and 65% were granted. Legal Aid in Canada: Resource and Caseload Statistics 1992-93, 1994.

42. 42 There is a 6 month statute of limitations on less serious summary conviction offences. Criminal Code s.786(2). Extreme cases of pre-charge delay and appellate delay may violate s.7 of the Charter.

43. 43 Rahey (1987) 33 C.C.C.(3d) 289 (S.C.C.).

44. 44 Askov (1990) 59 C.C.C.(3d) 449 (S.C.C.).

45. 45 Southam Inc. (1986) 25 C.C.C.(3d) 119 (Ont.C.A.); Canadian Newspapers Co. (1988) 43 C.C.C.(3d) 24 (S.C.C.).

46. 46 Criminal Code s.486.

47. 47 Homolka, July 6, 1993 unreported decision of the Ontario Court (Gen. Div.). The Canadian press could attend the trial. The judge feared that the American press, who could avoid the court's contempt powers, would not respect the publication ban that applied until the completion of the other accused's trial. The subsequent trial of the other accused, Bernardo, was as widely publicized in Canada as the O.J. Simpson trial. In part because of the continuing publication ban, the jury was selected in a few days and was not sequestered during the trial.

48. 48 Dagenais (1994) 94 C.C.C.(3d) 289 (S.C.C.).

49. 49 Criminal Code s. 650.

50. 50 Tran (1995) 92 C.C.C.(3d) 11 (S.C.C.).

51. 51 Seaboyer (1992) 66 C.C.C.(3d) 321 (S.C.C.).

52. 52 In addition, Parliament changed the offence of sexual assault by defining certain circumstances that did not constitute consent and requiring an accused who claimed a mistaken belief in consent to have taken "reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting." Criminal Code s.273.2.

53. 53 Criminal Code s.276.

54. 54 Section 15(1) of the Charter supports the reference in article 14 of the ICCPR to fair trial rights being enjoyed "in full equality" by providing that "every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination." Section 15(2), however, provides that the guarantee of equality rights "does not preclude any law . . . that has as its object the amelioration of conditions of disadvantaged individuals or groups including those who are disadvantaged because of . . . sex" and finds support, for example, in articles 3 and 4 of the Convention on the Elimination of All Forms of Discrimination Against Women.

55. 55 Osolin (1993) 86 C.C.C.(3d) 481 (S.C.C.); O'Connor (1996) 103 C.C.C.(3d) 1 (S.C.C.). These cases have been criticized as not giving sufficient weight to the interests of crime victims.

56. 56 Leogiannis (1993) 85 C.C.C.(3d) 327 (S.C.C.); L (D.O.) (1993) 85 C.C.C.(3d) 289 (S.C.C.).

57. 57 Khan (1990) 59 C.C.C.(3d) 92 (S.C.C.); Smith (1992) 75 C.C.C.(3d) 257 (S.C.C.); B (K.G.) (1993) 79 C.C.C.(3d) 257 (S.C.C.).

58. 58 Keegstra (1990) 61 C.C.C.(3d) 1 (S.C.C.); Butler (1992) 70 C.C.C.(3d) 129 (S.C.C.).

59. 59 Beharriell (1996) 103 C.C.C.(3d) 92 (S.C.C.).

60. 60 Criminal Code ss.33.1, 273.1-3, 276.

61. 61 Stinchcombe (1991) 68 C.C.C.(3d) 1 (S.C.C.).

62. 62 Vermette (1988) 41 C.C.C.(3d) 523 (S.C.C.); Kearney (1992) 76 C.C.C.(3d) 480 (S.C.C.).

63. 63 Whyte (1988) 42 C.C.C.(3d) 97 (S.C.C.).

64. 64 Downey (1992) 72 C.C.C.(3d) 1 (S.C.C.) (the presumption that one living with a prostitute was guilty of the offence of living off the avails of prostitution in the absence of evidence to the contrary was, however, upheld under s.1 of the Charter).

65. 65 Whyte (1988) 42 C.C.C.(3d) 97 (S.C.C.) (accused found in the driver's seat has to prove no intent to set vehicle in motion when charged with care and control of a vehicle while intoxicated); Keegstra (1990) 61 C.C.C.(3d) 1 (S.C.C.) (accused has to prove truth of statements that promote hatred); Wholesale Travel (1991) 67 C.C.C.(3d) 193 (S.C.C.) (accused has to prove lack of negligence when charged with regulatory offences such as misleading advertising); Chaulk (1990) 62 C.C.C.(3d) 193 (S.C.C.) (accused has to prove

insanity defence on a balance of probabilities).

66. 66 Smith (1987) 34 C.C.C.(3d) 97 (S.C.C.).

67. 67 Luxton (1990) 58 C.C.C.(3d) 449 (S.C.C.).

68. 68 Lyons (1987) 37 C.C.C.(3d) 1 (S.C.C.). The fact that the predicate offence is no longer a crime does not entitle the accused to release, even though this is an arguable interpretation of article 15 of the ICCPR. Milne (1987) 38 C.C.C.(3d) 502 (S.C.C.). The Supreme Court has authorized by means of habeas corpus the release of a repeat sexual offender detained for 37 years who, in its view, no longer presented a danger to society. Steele (1990) 60 C.C.C.(3d) 1 (S.C.C.).

69. 69 Ontario Law Reform Commission Report on the Basis of Liability for Provincial Offences, 1990) p. 16.

70. 70 The death penalty is still possible, but not likely to be imposed, for some military offences. National Defence Act R.S.C. 1985 c.N-5 s.139.

71. 71 Kindler (1991) 67 C.C.C.(3d) 1 (S.C.C.).

72. 72 Finta (1994) 88 C.C.C.(3d) 417 (S.C.C.).

73. 73 Criminal Code s.679.

74. 74 The prosecutor may appeal questions of law and stays of proceedings as of right and the fitness of sentence with leave to the Court of Appeal. The prosecutor also has a right to appeal

to the Supreme Court of Canada a matter of law on which a judge of the Court of Appeal dissents. On Crown appeals, appellate courts may order that the accused receive a new trial and, except in cases where the accused was originally acquitted by a jury, even convict an accused. In the United States and the United Kingdom, such appeals by the prosecutor would be considered an impermissible form of double jeopardy. In Canada, however, the right against double jeopardy in s.11(h) of the Charter, only applies when the accused is "finally acquitted of the offence."

75. 75 The accused and the prosecutor may appeal errors of law and sentences in summary conviction cases to the superior courts.

76. 76 Criminal Code s.686(1)(b) (iii).

77. 77 Burns [1994] 1 S.C.R. 656. See Kent Roach, "Developments in Criminal Procedure: The 1993-94 Term," 1995, 6 S.C.L.R.(2d) 281 at 334-337.

78. 78 Dagenais (1994) 120 D.L.R.(4th) 12 (S.C.C.).

79. 79 Criminal Code s.690. A person may also apply to the federal government for a pardon or "royal mercy". Criminal Code ss.749,751.

80. 80 Big M Drug Mart (1985) 18 D.L.R.(4th) 321 at 338 (S.C.C.).

81. 81 King (1988) 50 D.L.R.(4th) 564 (Ont.C.A.); McPherson (1994) 111 D.L.R.(4th) 278 (Man.Q.B.). In most cases, however, the prosecutor would bring an appeal to a higher court.

82. 82 Garofoli (1990) 60 C.C.C.(3d) 161 at 185 (S.C.C.).

83. 83 Pang (1994) 162 A.R. 24 (C.A.). See Roach (note 35), ch. 11.

84. 84 McEvoy [1983] 1 S.C.R. 704. See Peter Hogg, Constitutional Law of Canada, 3rd ed., 1992 ch. 7.

85. 85 Rahey (1987) 39 D.L.R.(4th) 481 at 491 (S.C.C.). See Roach (note 35), 1994, ch. 6.

86. 86 Gamble (1988) 45 C.C.C.(3d) 204 (S.C.C.); Steele (1990) 54 C.C.C.(3d) 334 (S.C.C.) Section 10(c) of the Charter bolsters this right by providing that everyone has the right on arrest or detention "to have the validity of the detention determined by way of habeas corpus and to be released if the detention is unlawful."

87. 87 Kourtessis (1993) 102 D.L.R.(4th) 456 (S.C.C.).

88. 88 Dagenais (1994) 120 D.L.R.(4th) 12 (S.C.C.).

89. 89 Lamer J. indicated that absolute immunity for prosecutors "would effectively bar the seeking of a remedy pursuant to s.24(1) of the Canadian Charter of Rights and Freedoms . . . To create a right without a remedy is antithetical to one of the purposes of the Charter which surely is to allow courts to fashion remedies when constitutional infringements occur." Nelles (1989) 60 D.L.R.(4th) 609 at 641-2 (S.C.C.).

90. 90 Royal Commission on the Donald Marshall Jr. Prosecution, 1989, at pp. 143-6. A Criminal Cases Review Commission was recently established in England and Wales. See Brice Dickson, "The Right to a Fair Trial in England and Wales" (this volume). An ombudsperson plays an

important role in Spain. Alberto Calatayud, "The Right to a Fair Trial" (this volume).

91. 91 R.S.C. 1985 c.Y-1. There is no criminal responsibility for those under 12 years of age.

92. 92 Id., ss.11,56.

93. 93 Id., s.4; S(S) (1990) 57 C.C.C.(3d) 115 (S.C.C.).

94. 94 Anthony Doob et al., Youth Crime and the Justice System in Canada: A Research Perspective, 1995, p. 114; Alan Markwart and Raymond Corrado, "Is the Young Offenders Act More Punitive?" in: Lucien Beaulieu ed, Young Offenders Dispositions, 1989, p. 7.

95. 95 Genereux (1992) 70 C.C.C.(3d) 1 (S.C.C.).

96. 96 M.L. Friedland, Controlling Misconduct in the Military (forthcoming), ch. 6.

97. 97 Wigglesworth (1986) 37 C.C.C.(3d) 385 (S.C.C.); Shubley (1990) 52 C.C.C.(3d) 481 (S.C.C.).

98. 98 Singh (1985) 17 D.L.R.(4th) 422 (S.C.C.).

99. 99 Dehgani (1993) 101 D.L.R.(4th) 654 (S.C.C.).

100. 100 Reza [1994] 2 S.C.R. 394; Baroud (1995) 121 D.L.R.(4th) 308 (Ont.C.A.).

101. 101 Similar limitation provisions are found in the new constitutions of both South Africa and Israel. See Ziyad Motala, "Right to Fair Trial Procedures in South Africa," p. 11; Avignor Feldman, "The Right to a Fair Trial in Israel," p. 1.

102. 102 See above note 65.

103. 103 See above note 58. These limitations might be allowed with references to articles 19 and 20 of the ICCPR.

104. 104 Oakes (1986) 24 C.C.C.(3d) 321 (S.C.C.); Dagenais (1994) 94 C.C.C.(3d) 289 (S.C.C.).

105. 105 Irwin Toy (1989) 59 D.L.R.(4th) 577 (S.C.C.). At the same time, however, in some criminal cases courts have been sensitive to the competing interests of crime victims and others. See above note 58.

106. 106 Slaight Communications (1989) 59 D.L.R.(4th) 416 at 427-8 (S.C.C.).

107. 107 Keegstra (1990) 61 C.C.C.(3d) 1 at 39-42 (S.C.C.). See also Taylor (1990) 75 D.L.R.(4th) 577 at 594-5 (S.C.C.).

108. 108 The override was used by the Quebec legislature after some of its legislation promoting the use of the French language was struck down as an unjustified limitation on freedom of expression. The Human Rights Committee called upon Canada to remedy what it found to be a violation of article 19 of the ICCPR. The Quebec legislature amended the law to allow signs in other languages.

109. 109 See Peter Russell, "Standing Up for Notwithstanding,"Alta.L.Rev., vol. 29, 1991, p. 293.

110. 110 R.S.C. 1985 c.E 4.5 discussed above.

111. 111 Kent Roach, "Canadian Public Inquiries and the Processes of Accountability," in: Phillip Stenning (ed.), Accountability for Criminal Justice, 1995.

112. 112 R.S.C. 1985 c.E 4.5.

113. 113 The Act does not contain provisions for establishing emergency tribunals or other attempts to interfere with the judiciary.

114. 114 These are the prohibited grounds of discrimination enumerated in s.15 of the Charter. Courts may also "read in" analogous grounds of discrimination such as sexual orientation. Haig (1992) 94 D.L.R.(4th) 1 (Ont.C.A.).

115. 115 R.S.C. 1985 c.E 4.5 s.58(7).

116. 116 Id., s.48.

117. 117 Id., s.62,63.

118. 118 Prosper (1994) 92 C.C.C.(3d) 353 (S.C.C.).