Charter Standards for Investigative Powers: Have the Courts Got the Balance Right?

This paper argues that judicial assertion of entrenched Charter standards since 1982 has constituted the only real check against the lure of law-and-order politics by politicians of all stripes and the consequent unremittingly legislative trend to toughen the criminal law. The paper undertakes the daunting task of stating the basic minimum Charter standards under sections 7, 8, 9 and 10 for police powers to stop, detain and question, and the n considering whether the courts have arrived at the proper balance between affording police effective enforcement powers while protecting the civil rights of all Canadians. The paper concludes that the courts have done a reasonably good job in setting out Charter standards for the police which try to balance civil liberties and the need for effective police powers. They have in general achieved a reasonable balance comparatively free of the law-and-order politics that dominates Parliament. However, the paper acknowledges that the Charter as interpreted by our courts is certainly no panacea and that sometimes the standards have been set too low, and suggests that the Supreme Court reconsider its approaches in a number of areas such as the triggering devices of “reasonable expectation of privacy” for section 8 and “detention” for sections 9 and 10. The Court should revisit the issue of section 10(b) and right to silence protections, particularly in the context of custodial interrogation. Perhaps most importantly, the Court should announce a revised set of criteria for the exclusion of evidence under section 24(2) to make it clear that the seriousness of the violation is determinative and not the reliability of the evidence or the seriousness of the offence. In these times of law and order and public security hype, it is hoped that the courts will maintain their independent role as guardians of the Charter so that our criminal justice system will remain one which balances and respects minority rights of all Canadians, including those of the accused