When it came to matters of criminal process, the Charter was not greeted with enthusiasm. There was a sense that to use constitutional principles to change past practices would constitute an inaccurate admission that pre-Charter trials had been unfair. When a satellite view is taken it appears even after 25 years that this kind of conservatism has prevailed. With rare exception, Charter challenges to rules of proof and procedure have failed. Yet to judge the impact of the Charter on criminal procedure using only this lens and measure fails to reveal the transformative influence the Charter has had. Those failed Charter challenges showed that many if not most procedural rules are capable, as black-letter commands, of causing injustice in exceptional cases — of welcoming the admission of prejudicial or unreliable information, of excluding critical defence evidence, or of otherwise creating imbalance or unfairness. and so, under the imposing influence of the Charter the Supreme Court furnished trial judges with discretion to refrain from applying rules of procedure and proof where they could produce effects that would offend constitutional values. This call for flexibility and context ultimately spilled out of the exclusionary discretion, helping to loosen the very design of key rules of admissibility, including the hearsay rule, the opinion evidence rule, the character evidence rule and even the law of privilege. Without question, it was under the influence of the Charter that the current age of discretion was born, an era in which procedural rules do less to dictate outcomes than to mark out flexible principles that permit context-specific determinations to be made. Even leaving aside the transformative effect of section 24(2) remedial exclusion and the burgeoning law of self-incrimination, it is the refore wrong to believe that the Charter has had little impact on criminal procedure. When you get close enough to the ground, Charter tracks can be seen wherever you look; the Charter has veritably changed the landscape of criminal process.
"Charter Tracks: Twenty-Five Years of Constitutional Influence on the Criminal Trial Process and Rules of Evidence."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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