Although the Charter has made many important improvements to the criminal justice system, this paper argues that there is a need for a greater sense of perspective on the importance of the Charter to the criminal justice system. This paper critically examines the impact of the Charter on rates of imprisonment, rates of pre-trial imprisonment, rates of Aboriginal overrepresentation in prison and among crime victims, rates of crime victimization, national security activities, wrongful convictions, trial delay and complexity, and the Criminal Code. It concludes that the Charter has likely not been a major factor in explaining why Canadian rates of imprisonment have not followed the alarming post-1982 American trends. Likewise, the Charter cannot take credit for recent reductions in youth imprisonment under the Youth Criminal Justice Act. Parliament still very much matters when it comes to Canada’s penal policy. The right to reasonable bail in the Charter has not stopped dramatic increases in remand populations and the Charter has not significantly benefited either crime victims or Aboriginal people, who are over-represented among both crime victims and inmates. Although the Charter has been both a cause and a cure for trial delay, it has only been a partial cause and a partial cure, and fundamental legislative, organizational and cultural changes are needed to respond to trial delay and complexity. Although the Charter has restrained Canadian anti-terrorism law, it has not addressed Canada’s unique and awkward two-court structure for determining national security confidentiality claims, the need for effective witness protection programs or the sustainability of using immigration law as a form of anti-terrorism law. Similarly, the Charter has helped recognize and respond to some of the causes of wrongful convictions such as lack of Crown disclosure, but it has not addressed many of the other causes of wrongful convictions or barriers to redress. Although the Charter has trimmed some of the excesses of the Criminal Code, fundamental reforms and simplification are still needed. The Charter can increase the justness of our justice system, but it cannot guarantee it. There is much work to be done and much of it will not involve the Charter.
"A Charter Reality Check: How Relevant is the Charter to the Justness of Our Criminal Justice System?."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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