Part I of this paper documents the unscrupulous politics of the majority Harper Government in enacting Bill C-10, the Safe Streets and Communities Act, in the name of victims’ rights. The Government ignored the legion of advice from opposition members and from lawyers, correctional officials, criminologists and judges within and outside Canada that resort to greater use of imprisonment, and minimum penalties in particular, will be costly and will not make Canadians safer. Opponents also predicted that there would be a disproportionate impact on vulnerable communities. In Part II it is argued that entrenched Charter standards as asserted by our courts have often produced a better balance between the rights of accused and the need to protect the public. Four examples are considered. It is suggested that our judiciary has put in place salutary principles of fundamental justice established under section 7, the powerful stay remedy for trials with unreasonable delay under section 11(b), carefully limited standards for policing and the now robust remedy of exclusion of evidence obtained in violation of Charter rights under section 24(2). Part III concludes with five suggestions for change to better protect the rights of accused: (1) section 24(2) approaches to discoverability and good faith; (2) care should be taken not to create enforceable Charter rights for victims, with special reference to current imbalances in sexual assault trials; (3) rights to counsel should not be dependent on whether they are asserted; (4) rights of accused allowing for coercive interrogations should be reconsidered and strengthened; and (5) the cruel and unusual protection under section 12 should be revitalized to strike down disproportionate minimum penalties.
"The Charter Balance against Unscrupulous Law and Order Politics."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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