Canada's Experience with Constitutionalism and Criminal Justice
(2013) 25 SAcLJ 656
This essay examines how the enactment of a constitutional bill of rights, the 1982 Canadian Charter of Rights and Freedoms (the Charter), has changed the Canadian criminal justice system. For example it has required the use of search warrants and right to counsel warnings at the pain of exclusion of evidence; mandated prosecutorial disclosure to the accused and has invalidated broad felony murder offences and restrictive intoxication and duress defences. Constitutionalism has affected both the procedure and substance of Canadian criminal law. At the same time, however, parts of the criminal justice system have not been restrained or improved by constitutionalism. They include a lack of universal recording of interrogations, a lack of mandatory identification procedures designed to minimise the risk of mis-identifications, decreased availability of bail, too easy acceptance of guilty pleas, and the increased use of mandatory sentences. The Legislature has often abdicated the law reform responsibilities to the Judiciary under the Charter and the Judiciary generally only responds to the worst abuses of power. Bills of rights enforced by the courts can play an important role in promoting constitutionalism, but they need to be supported by legislative reforms and civil society engagement including a free and critical press.