NCJ Number
91443
Journal
Law and Contemporary Problems Volume: 45 Issue: 4 Dated: (Autumn 1982) Pages: 221-248
Date Published
1983
Length
28 pages
Annotation
This comparison of constitutional protections provided to persons accused of crimes by the Canadian Charter of Rights and Freedoms with U.S. constitutional rights concludes that the new charter represents a significant improvement over the Canadian Bill of Rights, but affords fewer protections in many areas than are available in the United States.
Abstract
The division of powers between the Federal and provincial governments and the power to opt out of observing some rights guaranteed by the Canadian constitution could produce confusion in the administration of justice, although Provinces which depend on the Royal Canadian Mounted Police are unlikely to challenge Federal prerogatives. Overall, the Charter gives protections to citizens in areas where danger of abuse by the state is relatively slight, such as the rights to presumption of innocence, a hearing before an impartial tribunal, a trial within a reasonable time, limited protection against double jeopardy, and protection against ex post facto laws. In contrast, the Charter provides few protections in areas where danger of government abuse is great. It uses the phrase 'principles of fundamental justice' rather than due process and does not expressly grant the accused the right to remain silent, so that the accused is not entitled to a warning that he or she possesses such a right. The document is silent on matters such as the right of a recalcitrant suspect from whom the police are attempting to extract a confession and the right of a suspect when participating in pretrial identification procedures. Protections against electronic surveillance are unclear. The Charter provides the accused the right to retain and instruct counsel without delay after arrest, but this may not protect poor people in areas where legal aid is inadequate. The Charter's impact will depend on the courts' interpretations of its provisions, particularly Section 7, which states that no one will be deprived of the right to liberty except in accordance with the principles of fundamental justice. The paper includes 173 footnotes.