11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
The right of a person charged with an offence to be informed of the offence originated in section 510 of the Criminal Code as well as legal tradition.[1] Some courts have used section 510 to help read section 11(a), concluding that the right allows for a person to be "reasonable informed" of the charge; thus it does not matter if a summons simply summarizes a charge.[2]
In R. v. Nova Scotia Pharmaceutical Society the Supreme Court of Canada found that an open-ended statute (prohibiting companies from "unduly" lessening competition) was not a breach of Section 11(a).
In R. v. Delaronde (1997), the Supreme Court of Canada found section 11 (a) is meant not only to guarantee a fair trial but also to serve as an economic right. A person must be informed of charges quickly because they will then have to deal with their career and family life in light of the charges. Thus, those who suffer economically because of delayed information of charges have had their rights under section 11(a) infringed, and they may receive a remedy under section 24 of the Charter.
Right to be tried within a reasonable time
Section 11(b) provides that
11. Any person charged with an offence has the right...
(b) to be tried within a reasonable time;
Section 11(b) can be taken to provide a right to a speedy trial.[3] The criteria by which the court will consider whether the rights of an accused under this provision have been infringed were set out in R. v. Askov (1990). In R. v. Morin, [1992] 1 S.C.R. 771, the Supreme Court of Canada clarified the test set out in Askov, noting that the accused bears a certain onus to demonstrate actual prejudice as a result of delay. In cases of very extensive delay, however, the court found that prejudice could be inferred.
Later, in R. v. Finta (1994), the Supreme Court clarified that the period of "unreasonable delay" begins at the time the charge is laid. This was in response to a case in which charges were laid 45 years after the alleged offences occurred; and that this was suggested to be an unreasonable delay. Reasonableness depends, in part, on the amount of investigative work that is involved, the number of interested parties and their locations, and/or the complexity of the case. Reasonableness also relates to local court resources and/or how they compare to other jurisdictions. Other elements in determining reasonableness of delay could include delays by either the Crown attorney or defense counsel, or even the Court itself.
In R. v. Jordan (2016), the Supreme Court established that a delay longer than 18 months from when a charge is laid to the trial's completion is "presumptively unreasonable" and any delay by the Crown beyond that time that is not justified by exceptional circumstances that are either unforeseeable or beyond the Crown's control must result in a stay of proceedings. When a preliminary inquiry is held or the accused is tried in superior court, the presumptive ceiling is extended to 30 months.[4]
Right not to be compelled to be a witness
Section 11(c) provides that
11. Any person charged with an offence has the right ...
(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;
This provides a right against self-incrimination. R. v. Hebert, [1990] 2 SCR 151 confirms that this right extends to situations where the police employ "unfair tricks" such as sending an undercover police officer to pose as a sympathetic cellmate.
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Right to be presumed innocent
Section 11(d) provides that:
11. Any person charged with an offence has the right ...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
This right has generated some case law, as courts have struck down reverse onus clauses as violating the presumption of innocence. This first occurred in R. v. Oakes (1986) in respect to the Narcotics Control Act. This was also the case in which the Court developed the primary test for measuring rights limitations under section 1 of the Charter. The Court found having a reverse onus clause was not rational in fighting narcotics traffic since one could not assume a person found with narcotics means to traffic it. In R. v. Stone, the question of automatism was considered, with the Court deciding that while shifting the burden of proof to the defendant was a violation of section 11, it could be justified under section 1 because criminal law presumes willing actions.
In R. v. Hill, 2012 ONSC 5050, the Ontario Superior Court of Justice found that the principle of presumption of innocence applies not only to a trial on the facts, but also to sentencing in circumstances where the Crown alleges that the accused is a "dangerous offender".
The reference to a fair hearing allows one a right to "full answer and defence", a right also based in section 7 of the Charter ("fundamental justice"). This has led to a controversial string of decisions surrounding the rape shield law, starting with R. v. Seaboyer (1991) and ending with R. v. Mills (1999). In R. v. Rowbotham, (1988), the Ontario Court of Appeal found that Section 11(d), when read in conjunction with Section 7, requires the appointment of counsel for an accused who is facing a serious criminal charge, not capable of representing himself, and not financially able to retain counsel.
The reference to an independent and impartial tribunal has also been taken as granting a measure of judicial independence to lower-court judges specializing in criminal law, judicial independence previously being a right held only by superior courts under the Constitution Act, 1867. In the case Valente v. The Queen (1985), judicial independence under section 11 was held to be limited. Although it would include financial security, security of tenure and some administrative independence, the Court found the standards enjoyed by higher-level judges was too high for the many tribunals covered by section 11(d). In the Provincial Judges Reference (1997) expectations for judicial independence were heightened, with reference made to the preamble of the Constitution Act, 1867, which was said to imply judicial independence was an unwritten constitutional value applying to all judges in Canada. The requirement of an independent and impartial tribunal applies also to juries. Constitutional scholar Peter Hogg has written that jury selection under the Criminal Code would undoubtedly create an independent tribunal. However, he points to R. v. Bain (1992) in which the impartiality of the jury was questioned, since the Crown had more say in selection.[5]
Right not to be denied reasonable bail
Section 11(e) provides that
11. Any person charged with an offence has the right...
(e) not to be denied reasonable bail without just cause;
The right to reasonable bail was examined in R. v. Morales (1992) when a person was denied bail under section 515 of the Criminal Code, which allowed detention where it "is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will ... commit a criminal offence or interfere with the administration of justice". Chief Justice Lamer, for the majority of the Supreme Court, found that the "public interest" component violated the accused right not to be denied reasonable bail under section 11(e) of the Charter and could not be saved under section 1. He ordered the words "in the public interest" be declared of no force or effect. Lamer examined the phrase "in the public interest" and found that it was vague and imprecise, and so could not be used to frame a legal debate that could produce a structured rule.
Right to trial by jury
Section 11(f) provides that
11. Any person charged with an offence has the right ...
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
The right to a jury is protected by section 11(f). The Supreme Court considered this right in R. v. Pan; R. v. Sawyer (2001), which saw a challenge to the constitutionality of section 649 of the Criminal Code, which prohibited the use of evidence regarding the deliberation of the jury. The Supreme Court found the erosion of the secrecy of the jury would have a negative impact on the ability of a jury to decide a case and would affect an individual's right to jury trial under section 11(f) of the Charter. It is required under the principles of fundamental justice to have an impartial jury.
Right not to be found guilty unless action constituted an offence
Section 11(g) provides that
11. Any person charged with an offence has the right ...
(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
This right prohibits ex post facto law, meaning that it requires that in order for a person's action or lack thereof to be considered a crime, the action must have already been criminalized before the person committed it. Still, in 1991 the Supreme Court ruled in R. v. Furtney that section 11(g) does not require that all people must be aware of what is criminal and what is not. International law is recognized by section 11(g), and the Court acknowledged the federal government is not obligated to make sure all Canadians are aware of what international law says.
Right not to be tried again
Section 11(h) provides that
11. Any person charged with an offence has the right ...
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;
This provision prohibits double jeopardy, but only applies after the trial is finally concluded. The Crown has the right to appeal from acquittals. If the appellate court sets aside an acquittal and orders a new trial, that is consistent with this section because the accused has not been "finally acquitted". An appeal of an acquittal will be successful when the Crown can prove that a legal error contributed to the verdict at first instance.
Appeals of factual findings untainted by legal error are not possible. In the case of Corp. Professionnelle des Médecins v. Thibault, the Supreme Court struck down a Quebec provision which allowed appeals courts to conduct a de novo review of both factual and legal findings. Holding that such reviews are new trials disguised as appeals, and that a legally proper acquittal is final for the purposes of section 11(h).
Standards for section 11(h) were set in the Supreme Court case R. v. Wigglesworth (1987). The Court noted that section 11(h) only applies to criminal matters and so both charges must be criminal in nature to invoke the double jeopardy defence. The Court then proposed a two part test to determine whether the first proceeding was in relation to a criminal matters and therefore invoking section 11(h). First, it must be determined whether the matter is of a "public nature, intended to promote public order and welfare within a public sphere of activity". Second, it must be determined whether the matter involves "the imposition of true penal consequences".
The definition of "true penal consequence" has been a matter or regular debate in the Canadian courts, and remains unclear in many contexts. In civil forfeiture proceedings, for example, courts have found that "taking a person’s property away from that person has a punitive component," and various defendants have argued that the rights of the accused in Section 11 of the Charter apply. Courts have generally responded to such arguments by finding that forfeiture contrary to Section 11 is "clearly not in the interests of justice," but have stopped short of applying constitutional remedies per se.
A double jeopardy case came before the Supreme Court in Canada v. Schmidt, in which it was argued extradition to face a state charge of child-stealing would violate section 11(h) since the accused had already been acquitted of the allegedly similar federal kidnapping charge. (Even if these charges could be considered similar, this would not violate the double jeopardy clause in the Fifth Amendment to the United States Constitution, as prosecutions under state and federal laws are considered distinct prosecutions.) Justice La Forest wrote for the majority, "I do not think our constitutional standards can be imposed on other countries." The majority found that the charge would be in accordance with "traditional procedures" in Ohio. Finally, it found that "It is interesting that, as we saw, the United States Supreme Court has repeatedly held that successive prosecutions at the federal and state level do not automatically offend against the due process clause, the spirit and content of which bears some resemblance to s. 7 of the Charter, although the courts would act to prevent oppressive behaviour."
Right to lesser punishment
Section 11(i) provides that
11. Any person charged with an offence has the right ...
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
This right states that if a person committed a crime whose punishment has become lighter or harsher by the time a judge delivers a sentence, the person should receive the lighter punishment. In some cases, the Court of Appeal for Ontario and Alberta Court of Appeal have ruled that section 11(i) only applies to the sentencing given by a trial judge. If the case is appealed and the punishment is made less severe, a person does not have a right to be given the lesser punishment from an appellate judge.[6]
Related Research Articles
In jurisprudence, double jeopardy is a procedural defence that prevents an accused person from being tried again on the same charges following an acquittal or conviction and in rare cases prosecutorial and/or judge misconduct in the same jurisdiction. Double jeopardy is a common concept in criminal law. In civil law, a similar concept is that of res judicata. Variation in common law countries is the peremptory plea, which may take the specific forms of autrefois acquit or autrefois convict. These doctrines appear to have originated in ancient Roman law, in the broader principle non bis in idem.
A summary offence or petty offence is a violation in some common law jurisdictions that can be proceeded against summarily, without the right to a jury trial and/or indictment.
Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or incarcerated, and results in the conviction or acquittal of the defendant. Criminal procedure can be either in form of inquisitorial or adversarial criminal procedure.
The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world's legal systems.
The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present compelling evidence to the trier of fact. If the prosecution does not prove the charges true, then the person is acquitted of the charges. The prosecution must in most cases prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted. The opposite system is a presumption of guilt.
Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section: the right to life, liberty and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice.
Dietrich v The Queen is a 1992 High Court of Australia constitutional case which established a person accused of serious criminal charges must be granted an adjournment until appropriate legal representation is provided if they are unrepresented through no fault of their own and proceeding would result in the trial being unfair.
The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act and several other peripheral statutes.
R v Zundel [1992] 2 S.C.R. 731 is a Supreme Court of Canada decision where the Court struck down the provision in the Criminal Code that prohibited publication of false news on the basis that it violated the freedom of expression provision under section 2(b) of the Canadian Charter of Rights and Freedoms.
R v Askov, [1990] 2 S.C.R. 1199, is a 1990 appeal heard before the Supreme Court of Canada which established the criteria and standards by which Canadian courts judge whether an accused's right to a speedy trial under the Canadian Charter of Rights and Freedoms, Section 11(b) "to be tried within a reasonable time" has been infringed.
R v Ruzic, [2001] 1 SCR 687 is a leading decision of the Supreme Court of Canada on the common law defence of duress and constitutionality of the defence under section 17 of the Criminal Code. The Court held that section 7 of the Canadian Charter of Rights and Freedoms requires that the defence of duress be available to an accused even when they were not under immediate threat of bodily harm at the time the offence was committed.
R v Swain, [1991] 1 S.C.R. 933 is a leading constitutional decision of the Supreme Court of Canada on certain rights of the mentally ill in their criminal defence. The case concerned a constitutional challenge of the common law rule permitting the Crown to adduce evidence of an accused's insanity and section 542(2) of the Criminal Code, which allowed for the indeterminate detention of an accused who is found not guilty by reason of "insanity". The Court held that both the common law rule and the Code provision were unconstitutional. As a result, the Court created a new common law rule that was constitutional, and Parliament created new laws of what to do with individuals who were found not criminally responsible by reason of a mental disorder. The parties to the case were the appellant, Swain, the respondent, the Crown, and the following interveners: the Attorney General of Canada, the Lieutenant Governor's Board of Review of Ontario, the Canadian Disability Rights Council, the Canadian Mental Health Association, and the Canadian Association for Community Living.
R v Morrisey, [2000] 2 SCR 90 is a leading Supreme Court of Canada decision on the right to be free of cruel and unusual punishment under section 12 of the Canadian Charter of Rights and Freedoms. The Court held that there can be exemptions for mandatory prison sentences where the sentence is unreasonable or has an effect upon the accused that may be considered harsh.
R v Finta, [1994] 1 SCR 701 is a case decided by the Supreme Court of Canada. The Court found that a 45-year delay before charging an individual under the crimes against humanity provisions of the Criminal Code does not fall within the meaning of "unreasonable delay" under the Canadian Charter of Rights and Freedoms. The period for "unreasonable delay" begins from the point that charges are laid.
Duke v R [1972] S.C.R. 917 was a decision by the Supreme Court of Canada on the Canadian Bill of Rights, concerning the right of an accused to make full answer and defence to a criminal charge.
Hate speech laws in Canada include provisions in the federal Criminal Code, as well as statutory provisions relating to hate publications in three provinces and one territory.
Bail in Canada refers to the release of a person charged with a criminal offence prior to being tried in court or sentenced. The Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms guarantee the right not to be denied reasonable bail without just cause. That right is implemented by the Criminal Code, which provides several ways for a person to be released prior to a court appearance. A person may be released by a peace officer or by the courts. A release by the courts is officially known as a judicial interim release. There are also a number of ways to compel a person's appearance in court without the need for an arrest and release.
Criminal procedure in South Africa refers to the adjudication process of that country's criminal law. It forms part of procedural or adjectival law, and describes the means by which its substantive counterpart, South African criminal law, is applied. It has its basis mainly in English law.
R. v. Jordan was a decision of the Supreme Court of Canada which rejected the framework traditionally used to determine whether an accused was tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms and replaced it with a presumptive ceiling of 18 months between the charges and the trial in a provincial court without preliminary inquiry, or 30 months in other cases.
R v Zora, 2020 SCC 14 is a case in which the Supreme Court of Canada held unanimously that the offence of breaching bail conditions under the Criminal Code requires subjective mens rea.
References
↑ R. v. Lucas (1983), 6 C.C.C. (3d) 147 (N.S.C.A.). Canadian Legal Information Institute, "SECTION 11(a)," Canadian Charter of Rights Decisions Digest, URL accessed 29 July 2006.
↑ "SECTION 11(a)," Canadian Charter of Rights Decisions Digest, URL accessed 29 July 2006. The cases were R. v. Goreham (1984), 12 C.C.C. (3d) 348 (N.S.C.A.); Pettipas v. R., (N.S.C.A., December 4, 1985).
↑ C. L. Ostberg; Matthew E. Wetstein; Craig R. Ducat, "Attitudinal Dimensions of Supreme Court Decision Making in Canada: The Lamer Court, 1991-1995," Political Research Quarterly, Vol. 55, No. 1. (Mar., 2002), p. 237.
↑ Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, pages 190-191.
↑ Canadian Legal Information Institute, "SECTION 11(i)," Canadian Charter of Rights Decisions Digest, URL accessed 2 June 2006. The cases were R. v. Luke 1994 CanLII 823 (ON C.A.), (1994), 87 C.C.C. (3d) 121 (Ont. C.A.); R. v. Bishop (1994), 94 C.C.C. (3d) 97 (Alta. C.A.).
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