This paper was delivered as part of a panel entitled “The Justness of Criminal Justice: How has the Charter Changed the Problems We Face?” Participants were asked to “reflect on the social justice issues raised in the criminal justice system and how those issues have remained, changed or been redressed over the life of the Charter”. The author’s the sis is: (1) the criminal justice system is overflowing with social justice issues; (2) the most significant insight about the criminal justice system in the past 30 years is that criminal law raises equality values; (3) the Charter has had something (but not much) to do with raising that claim; (4) it would be naive to assume that Charter rights could singlehandedly ameliorate the multi-dimensional nature of the social injustice perpetrated by the criminal justice system; and (5) the Charter’s most important role in improving the system is in its potential to “unearth, render visible and potentiate criminal justice responses to systemic inequality”. The paper examines two areas in which the Charter has had a significant impact on how criminal justice issues are conceptualized. The first is in the construction of blame and the move away from a simplistic subjectivism. The second is in the overt recognition of the equality dimensions of many criminal law problems such as, for example, sexual assault, intoxication and the affirmative defences. The author concludes by examining three recent cases in which equality values have played a significant role: R. v. Tran, Canada (Attorney General) v. Bedford and R. v. Ipeelee, along with two recent sentencing decisions where equality arguments were unsuccessful (R. v. Nur and R. v. Johnson). While acknowledging that equality raises challenging questions which are complex and multifaceted, the author nevertheless insists that our professional commitments to democracy and social justice require that it be taken seriously.
Way, Rosemary Cairns.
"Attending to Equality: Criminal Law, the Charter and Competitive Truths."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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