Section 11 of the ''
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
'' is the section of the
Canadian Constitution
The Constitution of Canada (french: Constitution du Canada) is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Its contents ar ...
that protects a person's legal rights in criminal and penal matters. There are nine enumerated rights protected in section 11.
Right to be informed of the offence
Section 11(a) provides that
The right of a person charged with an offence to be informed of the offence originated in section 510 of the ''
Criminal Code
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...
'' as well as legal tradition. Some courts have used section 510 to help read section 11(a), concluding that the right allows for a person to be "reasonable informed" of the charge; thus it does not matter if a
summons simply summarizes a charge.
In ''
R. v. Nova Scotia Pharmaceutical Society
''R v Nova Scotia Pharmaceutical Society'', 992
Year 992 ( CMXCII) was a leap year starting on Friday (link will display the full calendar) of the Julian calendar.
Events
By place
Worldwide
* Winter – A superflare from the sun causes an Aurora Borealis, with visibility as fa ...
2 S.C.R. 606 is a leading Supreme Court of Canada decision on Section Seven of the Canadian Charter of Rights and Freedoms, section 7 of the Canadian Charter of Rights and Freedoms and the doctrine ...
'' the Supreme Court of Canada found that an open-ended statute (prohibiting companies from "unduly" lessening competition) was not a breach of Section 11(a).
In ''
R. v. Delaronde'' (1997), the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
found section 11 (a) is meant not only to guarantee a fair trial but also to serve as an economic right. A person must be informed of charges quickly because they will then have to deal with their career and family life in light of the charges. Thus, those who suffer economically because of delayed information of charges have had their rights under section 11(a) infringed, and they may receive a remedy under
section 24 of the Charter.
Right to be tried within a reasonable time
Section 11(b) provides that
Section 11(b) can be taken to provide a right to a
speedy trial. The criteria by which the court will consider whether the rights of an accused under this provision have been infringed were set out in ''
R. v. Askov'' (1990). In ''
R. v. Morin'',
992
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1 S.C.R. 771, the Supreme Court of Canada clarified the test set out in ''Askov'', noting that the accused bears a certain onus to demonstrate actual prejudice as a result of delay. In cases of very extensive delay, however, the court found that prejudice could be inferred.
Later, in ''
R. v. Finta'' (1994), the Supreme Court clarified that the period of "unreasonable delay" begins at the time the charge is laid. This was in response to a case in which charges were laid 45 years after the alleged offences occurred; and that this was suggested to be an unreasonable delay. Reasonableness depends, in part, on the amount of investigative work that is involved, the number of interested parties and their locations, and/or the complexity of the case. Reasonableness also relates to local court resources and/or how they compare to other jurisdictions. Other elements in determining reasonableness of delay could include delays by either the Crown attorney or defense counsel, or even the Court itself.
In ''
R. v. Jordan'' (2016), the Supreme Court established that a delay longer than 18 months from when a charge is laid to the trial's completion is "presumptively unreasonable" and any delay by the Crown beyond that time that is not justified by exceptional circumstances that are either unforeseeable or beyond the Crown's control must result in a stay of proceedings. When a preliminary inquiry is held or the accused is tried in superior court, the presumptive ceiling is extended to 30 months.
Right not to be compelled to be a witness
Section 11(c) provides that
This provides a right against
self-incrimination
In criminal law, self-incrimination is the act of exposing oneself generally, by making a statement, "to an accusation or charge of crime; to involve oneself or another ersonin a criminal prosecution or the danger thereof". (Self-incrimination ...
.
R. v. Hebert',
9902 SCR 151 confirms that this right extends to situations where the police employ "unfair tricks" such as sending an undercover police officer to pose as a sympathetic cellmate.
Another right against self-incrimination can be found in
section 13 of the Charter.
Right to be presumed innocent
Section 11(d) provides that:
This right has generated some case law, as courts have struck down
reverse onus A reverse onus clause is a provision within a statute that shifts the burden of proof onto the individual specified to disprove an element of the information. Typically, this particular provision concerns a shift in burden onto a defendant in eith ...
clauses as violating the
presumption of innocence
The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must presen ...
. This first occurred in ''
R. v. Oakes
''R v Oakes'' 9861 SCR 103 is a case decided by the Supreme Court of Canada which established the famous ''Oakes'' test, an analysis of the limitations clause (section 1) of the ''Canadian Charter of Rights and Freedoms'' that allows reas ...
'' (1986) in respect to the Narcotics Control Act. This was also the case in which the Court developed the primary test for measuring rights limitations under
section 1 of the Charter. The Court found having a reverse onus clause was not rational in fighting narcotics traffic since one could not assume a person found with narcotics means to traffic it. In ''
R. v. Stone'', the question of
automatism was considered, with the Court deciding that while shifting the
burden of proof to the defendant was a violation of section 11, it could be justified under section 1 because criminal law presumes willing actions.
In ''
R. v. Hill'', 2012 ONSC 5050, the Ontario Superior Court of Justice found that the principle of presumption of innocence applies not only to a trial on the facts, but also to sentencing in circumstances where the Crown alleges that the accused is a "
dangerous offender
In Canada, England, and Wales, certain convicted persons may be designated as dangerous offenders and subject to a longer, or indefinite, term of imprisonment in order to protect the public. Other countries, including Denmark and parts of the U ...
".
The reference to a fair hearing allows one a right to "full answer and defence", a right also based in
section 7 of the Charter ("
fundamental justice
In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as ...
"). This has led to a controversial string of decisions surrounding the
rape shield law
A rape shield law is a law that limits the ability to introduce evidence or cross-examine rape complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape vict ...
, starting with ''
R. v. Seaboyer'' (1991) and ending with ''
R. v. Mills (1999)''. In ''
R. v. Rowbotham'', (1988), the Ontario Court of Appeal found that Section 11(d), when read in conjunction with Section 7, requires the appointment of counsel for an accused who is facing a serious criminal charge, not capable of representing himself, and not financially able to retain counsel.
The reference to an independent and impartial tribunal has also been taken as granting a measure of
judicial independence to lower-court judges specializing in criminal law, judicial independence previously being a right held only by superior courts under the
Constitution Act, 1867
The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
. In the case ''
Valente v. The Queen'' (1985), judicial independence under section 11 was held to be limited. Although it would include financial security, security of tenure and some administrative independence, the Court found the standards enjoyed by higher-level judges was too high for the many tribunals covered by section 11(d). In the ''
Provincial Judges Reference
The ''Reference re Remuneration of Judges of the Provincial Court (P.E.I.)'' 9973 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of pro ...
'' (1997) expectations for judicial independence were heightened, with reference made to the
preamble of the Constitution Act, 1867, which was said to imply judicial independence was an unwritten constitutional value applying to all judges in Canada. The requirement of an independent and impartial tribunal applies also to
juries
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment.
Juries developed in England dur ...
. Constitutional scholar
Peter Hogg
Peter Wardell Hogg (12 March 1939 – 4 February 2020) was a New Zealand-born Canadian legal scholar and lawyer. He was best known as a leading authority on Canadian constitutional law, with the most academic citations in Supreme Court jurisp ...
has written that
jury selection under the Criminal Code would undoubtedly create an independent tribunal. However, he points to ''
R. v. Bain'' (1992) in which the impartiality of the jury was questioned, since the Crown had more say in selection.
Right not to be denied reasonable bail
Section 11(e) provides that
The right to reasonable
bail
Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required.
In some countries ...
was examined in ''
R. v. Morales'' (1992) when a person was denied bail under section 515 of the Criminal Code, which allowed detention where it "is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will ... commit a criminal offence or interfere with the administration of justice". Chief Justice Lamer, for the majority of the Supreme Court, found that the "public interest" component violated the accused right not to be denied reasonable bail under section 11(e) of the ''Charter'' and could not be saved under section 1. He ordered the words "in the public interest" be declared of no force or effect. Lamer examined the phrase "in the public interest" and found that it was vague and imprecise, and so could not be used to frame a legal debate that could produce a structured rule.
Right to trial by jury
Section 11(f) provides that
The right to a jury is protected by section 11(f). The Supreme Court considered this right in ''
R. v. Pan; R. v. Sawyer'' (2001), which saw a challenge to the constitutionality of section 649 of the ''Criminal Code'', which prohibited the use of evidence regarding the deliberation of the jury. The Supreme Court found the erosion of the secrecy of the jury would have a negative impact on the ability of a jury to decide a case and would affect an individual's right to jury trial under section 11(f) of the ''Charter''. It is required under the principles of fundamental justice to have an impartial jury.
Right not to be found guilty unless action constituted an offence
Section 11(g) provides that
This right prohibits ''
ex post facto law
An ''ex post facto'' law (from ) is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. In criminal law, it may Criminalization, crim ...
'', meaning that it requires that in order for a person's action or lack thereof to be considered a crime, the action must have already been criminalized before the person committed it. Still, in 1991 the Supreme Court ruled in ''
R. v. Furtney'' that section 11(g) does not require that all people must be ''aware'' of what is criminal and what is not.
International law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
is recognized by section 11(g), and the Court acknowledged the federal government is not obligated to make sure all Canadians are aware of what international law says.
Right not to be tried again
Section 11(h) provides that
This provision prohibits
double jeopardy
In jurisprudence, double jeopardy is a procedural defence (primarily in common law jurisdictions) that prevents an accused person from being tried again on the same (or similar) charges following an acquittal or conviction and in rare case ...
, but only applies after the trial is finally concluded. The Crown has the right to appeal from acquittals. If the appellate court sets aside an acquittal and orders a new trial, that is consistent with this section because the accused has not been "finally acquitted". An appeal of an acquittal will be successful when the Crown can prove that a legal error contributed to the verdict at first instance.
Appeals of factual findings untainted by legal error are not possible. In the case of ''Corp. Professionnelle des Médecins v. Thibault'', the Supreme Court struck down a Quebec provision which allowed appeals courts to conduct a
''de novo'' review of both factual and legal findings. Holding that such reviews are new trials disguised as appeals, and that a legally proper acquittal is final for the purposes of section 11(h).
Standards for section 11(h) were set in the Supreme Court case ''
R. v. Wigglesworth'' (1987). The Court noted that section 11(h) only applies to criminal matters and so both charges must be criminal in nature to invoke the double jeopardy defence. The Court then proposed a two part test to determine whether the first proceeding was in relation to a criminal matters and therefore invoking section 11(h). First, it must be determined whether the matter is of a "public nature, intended to promote public order and welfare within a public sphere of activity". Second, it must be determined whether the matter involves "the imposition of true penal consequences".
The definition of "true penal consequence" has been a matter or regular debate in the Canadian courts, and remains unclear in many contexts. In
civil forfeiture
Asset forfeiture or asset seizure is a form of confiscation of assets by the authorities. In the United States, it is a type of criminal-justice financial obligation. It typically applies to the alleged proceeds or instruments of crime. This a ...
proceedings, for example, courts have found that
taking a person’s property away from that person has a punitive component" and various defendants have argued that the rights of the accused in Section 11 of the ''Charter'' apply. Courts have generally responded to such arguments by finding that forfeiture contrary to Section 11 is "clearly not in the interests of justice," but have stopped short of applying constitutional remedies ''per se''.
A double jeopardy case came before the Supreme Court in ''
Canada v. Schmidt'', in which it was argued
extradition
Extradition is an action wherein one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdi ...
to face a state charge of child-stealing would violate section 11(h) since the accused had already been acquitted of the allegedly similar federal kidnapping charge. (Even if these charges could be considered similar, this would not violate the double jeopardy clause in the
Fifth Amendment to the United States Constitution
The Fifth Amendment (Amendment V) to the United States Constitution addresses criminal procedure and other aspects of the Constitution. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights. The Fifth Amend ...
, as prosecutions under state and federal laws are considered distinct prosecutions.) Justice La Forest wrote for the majority, "I do not think our constitutional standards can be imposed on other countries." The majority found that the charge would be in accordance with "traditional procedures" in Ohio. Finally, it found that "It is interesting that, as we saw, the
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
has repeatedly held that successive prosecutions at the federal and state level do not automatically offend against the
due process clause, the spirit and content of which bears some resemblance to s. 7 of the Charter, although the courts would act to prevent oppressive behaviour."
Right to lesser punishment
Section 11(i) provides that
This right states that if a person committed a crime whose punishment has become lighter or harsher by the time a judge delivers a sentence, the person should receive the lighter punishment. In some cases, the
Court of Appeal for Ontario and
Alberta Court of Appeal
The Court of Appeal of Alberta (frequently referred to as Alberta Court of Appeal or ABCA) is a Canadian appellate court.
Jurisdiction and hierarchy within Canadian courts
The court is the highest in Alberta, Canada. It hears appeals from the ...
have ruled that section 11(i) only applies to the sentencing given by a trial judge. If the case is appealed and the punishment is made less severe, a person does not have a right to be given the lesser punishment from an appellate judge.
[Canadian Legal Information Institute,]
SECTION 11(i)
" ''Canadian Charter of Rights Decisions Digest'', URL accessed 2 June 2006. The cases were ''R. v. Luke'' 1994 CanLII 823 (ON C.A.), (1994), 87 C.C.C. (3d) 121 (Ont. C.A.); ''R. v. Bishop'' (1994), 94 C.C.C. (3d) 97 (Alta. C.A.).
References
External links
Section 11 of the Charter (criminalnotebook.ca)Fundamental Freedoms: The Charter of Rights and Freedoms- Charter of Rights website with video, audio and the Charter in over 20 languages
{{DEFAULTSORT:Section 11
Canadian Charter of Rights and Freedoms
Criminal procedure
Canadian criminal law