This paper asks whether the Canadian Charter of Rights and Freedoms, as interpreted over the past 25 years, has made a positive contribution to the protection afforded in Canadian law against wrongful conviction. The paper argues that while the Charter has made a positive contribution in a couple of areas, its overall impact is not clear. It is, in fact, arguable that the Charter has made things worse for the innocent. The paper proceeds in four parts. First, the paper describes the two areas where the Charter has made a positive contribution, namely, disclosure and reverse onuses and presumptions. The paper next reviews many of the remaining areas of criminal Charter jurisprudence and concludes that the Charter has done little if anything to protect the innocent. This conclusion is reinforced in the third part of the paper by an examination of the Charter’s lack of impact on the major documented causes of wrongful conviction. The fourth part of the paper offers two reasons why the Charter may have actually made it harder for the innocent to avoid conviction: it may have diverted attention and resources away from defence investigations into factual innocence, and it may have provoked an embattled reaction by the police resulting in greater subversion of the existing rules and practices that do protect against wrongful conviction. The paper concludes that, while an overall assessment of the Charter’s impact is difficult to make, it is plausible that at least at the margin there has been a trade-off between enhanced constitutional fairness and adjudicative accuracy for the innocent.
"The Charter and Protection against Wrongful Conviction: Good, Bad or Irrelevant?."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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