The Confessions Rule and the Charter

The confessions rule—the requirement that the Crown prove the voluntariness of the accused’s statements to persons in authority—is a well-established rule of criminal evidence and is closely connected with the constitutional principle against self-incrimination that it structures. The confessions rule is thus a natural candidate for recognition as a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms. However, there are two distinct routes by which the confessions rule might be constitutionalized. Under the “rule of evidence” approach, the confessions rule would be recognized as an aspect of the accused’s constitutional right to a fair trial. Under the “rights violation” approach, the conduct of the state in obtaining an involuntary statement would be treated as a violation of the accused’s constitutional rights.In R. v. Singh, despite having previously adopted the “rule of evidence” approach, the Supreme Court of Canada applied the “rights violation” approach and linked the confessions rule very closely to the constitutional right to silence. In so doing, the Court conflated the distinct protections offered by the right to silence on the one hand and the confessions rule on the other, particularly when Singh is read in light of other recent cases that appear to weaken the confessions rule. Fortunately, the Court’s recent decisions concerning the confessions rule may also be read as instances of appellate deference to trial judges’ factual findings on voir dires. Thus, they leave room for the recognition that neither the right to silence nor the confessions rule is reducible to the other, and that each has a distinct role to play: the right to silence protects the accused’s decision to speak at all, while the confessions rule concerns the accused’s motivations for speaking as he or she did.La règle des confessions, qui requiert que la Couronne prouve le caractère volontaire des déclarations de l’accusé aux autorités, est une règle de preuve bien établie en droit criminel. Elle lie et structure le principe constitutionnel empêchant l’accusé de s’incriminer. La règle des confessions pourrait donc être reconnue comme principe de justice fondamentale en vertu de l’article 7 de la Charte canadienne des droits et libertés. La règle des confessions pourrait être constitutionnalisée de deux manières distinctes. Selon une approche insistant sur les règles de preuve, la règle des confessions serait reconnue comme composante du droit constitutionnel de l’accusé à un procès équitable. Selon une approche insistant sur la violation des droits, la conduite de l’État dans l’obtention d’une déclaration involontaire serait traitée comme une violation des droits constitutionnels de l’accusé.Dans R. c. Singh, bien qu’elle ait auparavant adopté l’approche des règles de preuve, la Cour suprême du Canada a appliqué l’approche de la violation des droits et a fermement rattaché la règle des confessions au droit constitutionnel au silence. Ce faisant, la Cour a fusionné les protections distinctes offertes par le droit au silence et par la règle des confessions, particulièrement lorsque l’affaire Singh est interprétée à la lumière d’autres décisions récentes qui semblent affaiblir la règle des confessions. Heureusement, les décisions récentes de la Cour concernant la règle des confessions peuvent aussi être vues comme des exemples de déférence des instances d’appel envers les conclusions de faits des juges de première instance relativement à des voir-dires. Ainsi, il est encore possible d’affirmer que le droit au silence et la règle des confessions ne sont pas réductibles l’un à l’autre et ont chacun un rôle distinct à jouer. Le droit au silence protège la décision de l’accusé de parler ou non, alors que la règle des confessions concerne ses motifs d’avoir parlé tel qu’il l’a fait

Where Is the Freedom in Freedom of Contract?: A Comment on Trebilcock\u27s the Limits of Freedom of Contract

Michael Trebilcock\u27s recent exploration of the limits of freedom of contract systematically considers both the instrumental and the intrinsic value of freedom or autonomy in an economic analysis. A third way of thinking about the value of freedom of contract is to take it as a presupposition of contract law: that is, freedom of contract is not just instrumentally or intrinsically desirable, but is conceptually necessary to contract law. Two examples are presented to suggest that by not considering this third perspective, Trebilcock leaves himself without a structure in which to deal with some of the issues that trouble him

Section 7 of the Charter and the Common Law Rules of Evidence

The advent of the Charter coincided with the Supreme Court of Canada’s development of a principled approach to the common law of evidence. Over the past 25 years, the Court has forged an important connection between these two changes in the law. When the Court has dealt with constitutional challenges to statutory changes to the common law of evidence, it has tended to reject the claim that the statute is unconstitutional, but has also tended to vindicate the values underlying the common law rule at issue by interpreting the statutory rule to preserve the trial judge’s discretionary power to exclude evidence on the ground of excessive prejudice. In this way, the Court has effectively constitutionalized the common law discretion to exclude evidence where its probative value is outweighed by its prejudicial effect. The development of this link between the Charter and the common law of evidence has not gone so far as recognizing a constitutional right to the exclusion of patently unreliable evidence. However, closer attention to the general principle that excessively prejudicial evidence is inadmissible could lead to a reversal of some recent undesirable developments in the common law confessions rule

Punitive in Effect: Reflections on Canada v. Whaling

In Canada (Attorney General) v. Whaling, the Supreme Court of Canada held that a change in the parole regime was a form of “punishment” and that its retroactive application to offenders already serving sentences violated the constitutional right against double punishment. The court found that this change did not have a punitive purpose and held that it was punitive based solely on its effect. This is the first time that the court has characterized a consequence of offending as “punishment” based solely on the effect, rather than the purpose, of the law imposing the consequence. This case comment reflects on possible implications of Whaling for characterizing other consequences of offending, such as the victim surcharge and the registration requirement for sexual offenders

Normative Foundations for Reasonable Expectations of Privacy

The right to be “secure against unreasonable search or seizure” in section 8 of the Canadian Charter of Rights and Freedoms applies only where the Charter applicant has a reasonable expectation of privacy in the place searched or the information obtained. The Supreme Court of Canada’s methodology for deciding whether an applicant has such a reasonable expectation appears well settled. The Court asks first whether the applicant had a subjective expectation of privacy, and second whether, in light of a long list of factors, that expectation was reasonable. But the Court’s decisions reveal at least two potentially incompatible ways of orienting the factors. According to what I call the “risk approach”, the focus of the inquiry is on the security of the place searched or the information obtained against the world at large; according to what I call the “surveillance approach”, the question is whether a reasonable person would anticipate that an agent of the state would be able to intrude into the place searched, or obtain the information in question, without legal authorization. I show how the court’s uncertainty about the appropriate approach helps to explain the complex split decision in R. v. Gomboc, and I argue that the surveillance approach provides better protection for the privacy interests that underlie the section 8 guarantee

R. v. Khawaja: At the Limits of Fundamental Justice

In R. v. Khawaja, the Supreme Court of Canada rejected a number of constitutional challenges to the terrorism offences in the Criminal Code. This paper focuses on the claim that the “participating or contributing” offence in section 83.18 was contrary to the principles of fundamental justice because it was overbroad or grossly disproportionate. The Court held that the purpose of the offence was to facilitate the prosecution and prevention of terrorism, without punishing conduct that was “innocent, socially useful or casual” or performed for a “valid reason”. In light of this purpose, the Court interpreted both the mens rea and the actus reus of the offence narrowly. As stated in the statute, the mens rea required proof not just of knowledge but also of a purpose to enhance the ability of a terrorist group to carry out its activity; but in some tension with the wording of the statute, the actus reus required proof of participation or contribution that is material or beyond de minimis. With this interpretation in hand, the Court readily rejected the claim that the offence was overbroad. The Court also rejected the disproportionality claim, in effect refusing to constitutionalize a norm against remoteness in the definition of criminal offences. This response to the section 7 claims in Khawaja illustrates two trends in recent Charter jurisprudence: The Court’s willingness to interpret statutes, rather than striking the m down, so as to control the scope of criminal liability, and the Court’s reluctance to recognize new principles of fundamental justice

Normative Foundations for Reasonable Expectations of Privacy

The right to be “secure against unreasonable search or seizure” in section 8 of the Canadian Charter of Rights and Freedoms applies only where the Charter applicant has a reasonable expectation of privacy in the place searched or the information obtained. The Supreme Court of Canada’s methodology for deciding whether an applicant has such a reasonable expectation appears well settled. The Court asks first whether the applicant had a subjective expectation of privacy, and second whether, in light of a long list of factors, that expectation was reasonable. But the Court’s decisions reveal at least two potentially incompatible ways of orienting the factors. According to what I call the “risk approach”, the focus of the inquiry is on the security of the place searched or the information obtained against the world at large; according to what I call the “surveillance approach”, the question is whether a reasonable person would anticipate that an agent of the state would be able to intrude into the place searched, or obtain the information in question, without legal authorization. I show how the court’s uncertainty about the appropriate approach helps to explain the complex split decision in R. v. Gomboc, and I argue that the surveillance approach provides better protection for the privacy interests that underlie the section 8 guarantee