Vagueness, Inconsistency and Less Respect for Charter Rights of Accused at the Supreme Court in 2012-2013

This paper suggests that several recent decisions of the Supreme Court show undue vagueness, inconsistency and less resolve to protect the Charter rights of accused. The rhetorical reliance on the language of Charter “values” of “equality, autonomy, liberty, privacy and human dignity” in R. v. Mabior is seen as increasingly unruly and leading to considerable inconsistency. Leaving the test of intervening cause largely untethered in R. v. Mabin is found to be unfortunate. It is suggested that complex and deeply divided rulings in R. v. Prokofiew have left comments on the accused’s silence at trial to the largely unfettered discretion of trial judges, the reby unnecessarily further diminishing the Charter right to silence. The new R. v. Nedelcu definition for section 13 use immunity protection revived the distinction between evidence that incriminates and evidence going to credibility. The author is of the view that Binnie J.’s decision for a unanimous Court in R. v. Henry had persuasively decided that this distinction is in practice too difficult to draw, and that this key determination should not have been overruled. The paper draws attention to the Court’s having avoided rather than considered Charter standards of moral involuntariness for defences declared in R. v. Ruzic and the Court’s previous Charter rulings on voluntariness intoxication in R. v. Daviault. Finally, the author finds rampant inconsistency in the Court’s approach to judicial notice. These concerns go to the legitimacy of the rule of law the Court often proudly invokes