Rights of Accused vs. Society in Canada

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Introduction

Criminal justice systems the world over are always faced with the challenge of balancing the rights of society with the rights of the accused. As a result, countries often enact laws that ensure that the society is safe while at the same time ensuring that the accused persons’ rights are not jeopardized. In Canada, the issue of establishing a balance between the rights of the accused and those of the society became more apparent with the enactment of the Canadian Charter of Rights and Freedoms in 1982. This law aims at upholding the accused’s rights as well as the society’s rights and freedoms (Boyd, 2007, p.320). The enactment of the Charter was however met with sharp criticisms that mainly focused on the possibility of reducing the police authority over crime control.

The Canadian Charter of Rights and Freedoms

Before the Charter was enacted in 1982, police in Canada had great powers and authority over crime. Police power was hardly ever frowned upon by the public. In short, Canada used to adopt the crime control model of policing. The police had discretion in all matters concerning policing, including apprehension, questioning, search, and seizure. As a result, little concern was shown towards the rights of the accused. The laws in Canada at that time hardly restricted the police in crime control. This was contrary to many other countries the world over, and especially Canada’s neighbor, the United States in which the rights of the accused were and are still overtly protected by the law. In fact, the police and police agencies advocated strongly for unlimited powers and limitations of the courts in ensuring justice prevails in society. Moreover, this opinion of unlimited police power also had its support from the courts which asserted that the work of the police should not be interfered with under normal circumstances. Thus, the only exception was extreme situations in which the rights of the accused were severely violated. In trying an accused person, the courts did not bother to check the manner in which the evidence brought against the accused was collected as long as the evidence was appropriate. The only exception to the admissibility of evidence was an involuntary statement given by the accused. Nevertheless, this does not mean that the powers of the police were liberal. The powers of the police were limited to a small extent. In addition, there was also the protection of the rights of the accused by some statutes and doctrines but these rights were not guaranteed.

Policing in Canada after the introduction of the Charter of Rights and Freedoms

When the Charter was originally introduced, it was met with substantial condemnation by the majority of the police officers and agencies such as the Canadian Association of Police. The police officers argued that the Charter would unreasonably limit their abilities to carry out their work. The frustration of the police with the Charter was evident following the Askov case in which the court ruled that a six-month delay of trial violated the Charter. Following this ruling, more than 40,000 cases in Ontario alone were thrown out of the courts on a similar basis. Some of these cases involved serious charges like assault and rape. The police thus felt that their efforts in fighting crime were all in vain. The Charter however has inherent challenges one of which is its ambiguity. As a result, different courts have different interpretations of the law’s application. The Charter has indeed limited the powers of the police to some extent. For instance, it requires the police to follow due process when interrogating, searching, or seizing suspects and any potential evidence. However, in many situations, the courts have often turned a blind eye when it comes to the enforcement of such laws. For instance, the Supreme Court of Canada gave a ruling that an accused person’s right to counsel is breached only if he claimed that he did not understand that right and that there is no doubt about his claim. In addition, if an accused insists on his right to counsel, the police should provide the person with a reasonable chance to exercise this right and should therefore not question the person or try to obtain evidence from him.

The Effect of the Charter on Policing

It has been claimed that the first ten years since the introduction of the Charter saw a shift in the balance of power that favored the public more than the police. This shift came about because before the Charter the courts had often focused on controlling crime at all costs instead of following the due process in order to balance the rights of the accused with the rights of the society as well as the needs of law enforcement. Undoubtedly, the Charter has affected the decision-making abilities of the police but it has not necessarily tied their hands. Specifically, the Charter is in existence to provide a framework within which the police officers can use their discretion in a formal way. The Charter thus enables the police officers to execute their job in a more professional and acceptable manner. It enables the police not to get carried away in their tracking down of criminals. Put differently, the Charter promotes good policing.

The Charter also enables the judges to establish if the police officers followed due process in apprehending, questioning, seizing, or searching suspects (Boyd, 2007, p.322). This however does not imply that the police should not use force or violence if situations call for it. In situations where police officers have information that a suspect is a violent person, then their use of force to apprehend the suspect is justifiable. In addition, it is not the case that courts are consistently throwing out cases due to violations of the Charter. Even if some criminals are walking free on the street due to violations of the Charter, the Canadian society still holds the police in high esteem, and thus the failure to protect the public from criminals is often blamed on the courts rather than on the police. Moreover, the Supreme Court of Canada has acknowledged its past emphasis on protecting the rights of the accused and is now trying to balance the rights of both the public and the accused persons. The Charter thus offers a system of checks and balances but it does not restrict the police from carrying out their work. Indeed, police officers always have alternatives when it comes to eliciting the evidence they need to incriminate a criminal.

This is illustrated in one of the clauses of the Charter which requires police to have a warrant before they can arrest or apprehend a suspect in a private dwelling. Because of this clause, some cases, such as the. Feeney has been thrown out of court because they violated the Charter. Nevertheless, the clause presents a big challenge to the police especially when it comes to protecting the safety and security rights of the general public. This is because the time taken by the police before acquiring a warrant to search or seize may increase the safety risk to the public. Because of this challenge, the Attorney General was forced to increase the powers of the police by allowing them to enter a private dwelling of a suspect with the aim of obtaining crucial evidence without a warrant. This is allowed in urgent or exigent situations. The Canadian Charter of Rights and Freedoms, therefore, exists not only to protect the rights of the accused but also the rights of the public. It, therefore, attempts to balance these two rights in the criminal justice procedure.

The Rights of the Accused with the Rights of the Society: Cases The R. v. R.C Case

In the R v. R.C case, a 13-year old boy was accused of assaulting his mother with a pen and repeatedly hitting her with his closed fist. When presented before the trial court, the trial judge discovered was a history of family violence which carried the potential for future violence if it were not tackled. The trial judge sentenced R.W.C. to four months’ conditional probation (R v. R.C., 2005, p. 10). In addition, the accused was required to undergo an anger management program. The major issue raised in the case was whether the trial judge erred in refusing to give a DNA order on the accused. This refusal was based on the fact that the accused was only 13 years old (hence considered to be a young person), had no prior criminal record and that the offense committed was not too serious. The holding given by the trial court was refuted by the Court of Appeal which in turn ordered for the DNA sample to be collected from the accused. The trial judge concluded that the DNA sample would gravely violate the privacy of the accused.

Moreover, it would result in labeling him as a criminal which would, in turn, affect his future life. Being a young person, this would have an adverse effect on him and his probabilities of reoffending. In arguing against the ruling made by the trial judge, both the Court of Appeal and the Supreme Court of Canada argued that there was no solid evidence to show the potential adverse effect of the DNA order on the accused. Most importantly, the Court of Appeal and the Supreme Court of Canada viewed the ruling of the trial court in light of the safety and security risk the accused presented to the society. Given the history of violence in the accused’s family as well as his poor record of academic and behavioral performance, it was evident that the accused had inherent problems that could render him to be violent to other people (R v. R.C., 2005, p. 19). As a result, it was important for the courts to take the necessary measures to protect society from the accused.

The R v. Currie Case

In R the v. Currie case, the accused was found guilty of three counts of sexual assault. The accused had inappropriately and degradingly touched several young girls (R. v. Currie, 1997, p. 2). Before these offenses, the accused had been convicted of committing similar offenses in several parts of the country. Some of these offenses had been minor while others had been extremely violent with adverse effects on the victims. During the trial, the trial court accepted the testimonies of two psychiatrists, one hired by the Crown and the other hired by the defense. The psychiatrist hired by the Crown argued that the accused was a very dangerous person because he had a sexual obsession brought about by some biological defects. On the other hand, the defense psychiatrist argued that although it was true that the accused had some biological problems, he had shown signs of improvement in his behavior thanks to the treatment he had received. As a result, the defense psychiatrist claimed that the accused was not particularly dangerous. While making the ruling, the trial court opted in favor of the statement given by the Crown’s psychiatrist and ignored the one given by the defense psychiatrist thus the trial judge labeled the accused as a very dangerous offender. The trial court’s ruling was however rejected by the Court of Appeal which argued that the trial court should have convicted the accused based on the seriousness of the current crimes and not on the previous crimes (R. v. Currie, 1997, p. 11). The Supreme Court of Canada however found that the trial court had not erred in its ruling and that the label given to the accused as a ‘dangerous offender’ as well as the sentence given was appropriate.

The R v. Kouri Case

In this case, the defendant was convicted of maintaining a common bawdy-house in which acts considered to be indecent under s. 210(1) of the Criminal Code were carried out. “The evidence presented at trial showed that access to the premise was restricted to couples only” (R. v. Kouri, 2005, p. 3). The owner employed a guard at the door who asked prospective clients if they were a liberated couple. Only couples that answered in the affirmative were allowed entrance into the premises. After every thirty minutes, the clients would engage in group sexual activities on the dance floor which was separated from the seating area by a blind curtain. The conviction made by the trial judge was however rejected by the majority of the Court of Appeal who argued that the acts were not considered criminal indecency. The Court of Appeal argued that access to the premise was highly restricted only to couples and couples which claimed to be liberated. As a result, those who accepted to enter the premises knew exactly what went on inside the place. Moreover, no one who entered the premises was forced to take part in the activities or to witness them. No one was held against his or her will (R. v. Kouri, 2005, p. 3). Based on these facts, the Court of Appeal argued that these acts were not criminal in nature. In giving its ruling, the Supreme Court argued that the acts that went on in the accused’s establishment were intolerable in the Canadian society due to their commercial and public nature. Moreover, the control mechanisms implemented by the establishment were not sufficient enough to protect the general public from viewing or being exposed to the activities. The Supreme Court of Canada thus sided with the trial court and supported the conviction of the accused.

Conclusion

The Canadian criminal justice system experienced a shift from the crime-control model to the due process model of policing. In the crime-control model era, a lot of emphases was placed on society’s rights to safety and security at the expense of the rights of the accused. The rights of the accused mainly entail rights to privacy. As a result, the rights of the accused were gravely violated in the post-Charter era. It did not matter how evidence was collected by the police as long as the evidence was appropriate and sufficient enough to incriminate a suspect. However, since the introduction of the Canadian Charter of Rights and Freedoms, the rights of the accused have been taken into consideration. Thus, the police officers are required to follow due process in apprehending, arresting, interrogating, searching, or seizing suspects and their properties. This new legal requirement in the Canadian criminal justice system has brought about many challenges to the system thus complicating the justice process. In all this, the greatest challenge faced by the criminal justice system is how to balance the rights of the accused with the rights of society. The courts are required to pass a ruling that ensures that the public is safe and secure and at the same time that the civil and human rights of the accused are not violated. This challenge is well illustrated in the cases discussed earlier namely: R v. R.C., R v. Currie, and R v. Kouri. In order to achieve the balance, courts make references to earlier cases and in some cases they have to enact new laws that take into consideration special circumstances.

References

Boyd, N. (2007). Canadian Law. New York: Thomson Nelson.

R. v. Currie. (1997). Web

R. v. Kouri.(2005). Web.

R. v. R.C. (2005). Web.

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