CANADA*
* For the third periodic report submitted by the Government of Canada, see CCPR/C/64/Add.1; for its consideration by the Committee, see CCPR/C/SR.1010 to SR.1013 and Official Records of the General Assembly, Forty-sixth session, Supplement No. 40 (A/46/40), paras. 45-101.
These annexes areavailable for consultation in the files of the secretariat.
1. The present report outlines measures adopted in Canada from 1990 to 1994 to implement the International Covenant on Civil and Political Rights and relevant case law, with occasional references to developments of special interest since that time.
2. There have been two constitutional accords proposing reform to the Constitution of Canada since 1982, when Canada obtained its own domestic constitutional amendment formula. This formula, set out in Part V of the Constitution Act, 1982, requires a high threshold of consent for major amendments. Part V of the Constitution Act, 1982 provides for a constitutional conference in 1997, where the Prime Minister of Canada and provincial first ministers will review the amending provisions.
3. The 1987 Constitutional Accord (the Meech Lake Accord), referred to in paragraph 11 of Canada's second report, did not result in constitutional amendment, because it did not obtain the unanimous consent of provincial legislative assemblies (two withheld consent) within the three-year period specified in the Constitution.
4. In 1992, renewed efforts for constitutional reform, which included extensive public consultations, culminated in a new constitutional accord (the Charlottetown Accord), with the support of the federal Government, the governments of the 10 provinces and two territories, and the leaders of Canada's four national Aboriginal associations. Of special relevance in the context of human rights was the recognition of Quebec as a distinct society within Canada, and of the inherent right of self-government of the Aboriginal peoples of Canada, to be implemented through negotiated agreements, and the inclusion of a Social and Economic Union, committing governments in Canada to certain policy objectives of an economic, social and cultural nature. The Accord also dealt with such other matters as Senate reform, and rebalancing the roles and responsibilities of federal and provincial governments.
5. The Canadian public voted in a national referendum on the Charlottetown Accord in October 1992, and most Canadians - Aboriginal and non-Aboriginal -voted against the proposed constitutional reforms. Although the Charlottetown Accord did not result in constitutional amendment, the referendum and the public discussions preceding it gave Canadians an opportunity to participate fully in the democratic process, and consider and debate issues of national concern. After the referendum, constitutional reform debates were put aside for the time being, while governments turned their attention to pressing economic and other issues.
6. Section 35 of the Constitution Act, 1982 recognizes and affirms the "existing Aboriginal and treaty rights of the Aboriginal peoples of Canada". After the 1993 federal election, the Government of Canada expressed its intention of acting "on the premise that the inherent right of self-government of the Aboriginal peoples of Canada is an existing Aboriginal and treaty right". There are now ongoing discussions with Aboriginal people on the implementation of the inherent right of self-government.
7. In 1994, the Parti Québecois was elected to govern the Province of Quebec. The Parti Québecois government supports the separation of Quebec from Canada and the recognition of Quebec as an independent State. On 30 October 1995, the Quebec government held a referendum on this issue, and the proposal to establish a sovereign state of Quebec was defeated.
Covenant as an aid to interpreting the Charter
8. Since Canada's second and third reports on the Covenant there have been many cases relying upon the Covenant as an aid to interpreting the Canadian Charter of Rights and Freedoms, both for the purpose of determining the ambit of Charter rights and freedoms, and whether limitations on them are acceptable within the terms of section 1 (reasonable limits) of the Charter.
9. For example, in R. v. Brydges, the Supreme Court of Canada referred to article 14 (3) (d) of the Covenant in concluding that section 10 (b) of the Charter, which guarantees the right to retain and instruct counsel, includes the right to be informed of the availability of legal aid counsel (see annex 1 for case citations). In R. v. Keegstra, the Court referred to articles 19 and 20 to conclude that the prohibition against the wilful promotion of hatred in the Criminal Code was a reasonable limit on the Charter guarantee of freedom of expression. The Court pointed out that "a value enjoying status as an international human right is generally to be ascribed a high degree of importance under s. 1 of the Charter" (p. 750).
Limitations on rights
10. Section 1 of the Charter expressly requires that limitations on Charter rights and freedoms be prescribed by law and be demonstrably justifiable in a free and democratic society, and has been interpreted by the courts to require that limitations serve an objective of sufficient importance and do so in a proportionate manner, with the burden of proof on the party defending the Charter limit. The requirement pursuant to section 1 of the Charter that objectives be achieved in a proportionate manner is parallel to the requirement in the limitation clause of various articles of the Covenant that limitations be "necessary in a democratic society in the interests of ...".
11. Although section 1 of the Charter does not specify the objectives that a limitation must serve to be acceptable, it has generally been applied in a manner compatible with the limitation clauses contained in the Covenant, which refer to such objectives as public safety, order, health or morals, and the protection of the rights and freedoms of others. Thus, limits on Charter rights serving the purposes of protecting public health (Ontario (Attorney-General) v. Dieleman); public safety (R. v. Morales, re right to bail); public order (Edwards Books and Art Ltd. v. R., re freedom of religion); and the rights and freedoms of others (R. v. Keegstra, re freedom of speech) have been upheld.
12. Indeed, on occasion, the courts have referred to the limitation clauses in the Covenant as an aid in assessing whether a limitation on a Charter right or freedom was acceptable. For example, in Ontario (Attorney-General) v. Dieleman, the Ontario Court (General Division) referred to the objective of protecting public health included in the limitation clauses in articles 18, 19, 21 and 22 of the Covenant in concluding that protecting the health of women seeking abortions was an objective of sufficient importance to justify limiting the freedom of expression of anti-abortion activists outside abortion clinics.
13. In regard to considerations of morality, the Supreme Court of Canada has stated that the advancement of conventional moral views, or a particular conception of morality, is not an objective of sufficient importance for section 1 purposes; however, the social harm associated with "immoral" conduct may provide a basis for a section 1 defence (R. v. Butler). The Supreme Court has stated that legislation permitting restrictions on Charter rights on the basis of considerations of "public interest" is unconstitutional, because this criterion is too vague (Morales).
14. There has also been a tendency on the part of Canadian courts to regard administrative inconvenience as not providing an adequate justification for limiting Charter rights and freedoms (C.(J.) v. Forensic Psychiatric Commission; Dartmouth/Halifax County Regional Housing Authority v. Sparks). In regard to financial considerations, the courts have regarded them as sufficient for purposes of section 1 of the Charter only in limited circumstances (Singh v. Minister of Employment and Immigration; Sutherland v. Canada). Fiscal considerations are relevant in determining the appropriate remedy, where there is a Charter breach (Schachter v. Canada), and the courts have asked to be apprised of the full context, including fiscal, to enable them adequately to assess Charter issues (Symes v. Canada).
15. Several articles of the Covenant require that interferences with certain forms of conduct should not be arbitrary or unreasonable. Some sections of the Charter expressly exclude arbitrary conduct, and the courts have stated that one of the relevant considerations in determining whether a limitation is unacceptable under section 1 of the Charter is whether it is arbitrary, unfair or based on irrational considerations (R. v. Oakes).
Practical exercise of rights and freedoms
16. The Supreme Court of Canada has, in a number of cases, stated that the Charter protects individuals not just from laws or policies which, on the face of it, infringe Charter rights and freedoms or have the purpose of infringing them, but also those which have the effect of doing so. Thus, adverse effects discrimination is prohibited by section 15 (equality rights) (Symes v. Canada); laws which have the effect of impeding the exercise of the fundamental freedoms guaranteed by section 2 are contrary to the Charter (R. v. Big M Drug Mart Ltd.); practical impediments to the right to vote are contrary to section 3 (democratic rights) (Hoogbruin and Raffia v. A.G.B.C.); and similarly to the right to security of the person as guaranteed by section 7 of the Charter (R. v. Morgentaler).
17. The question of ensuring implementation of international human rights treaties and, in particular, that there is adequate follow-up to the concluding observations of United Nations committees on Canada's reports on implementation of such treaties, is increasingly a matter of attention and priority in Canada.
18. Copies of the concluding observations of the Human Rights Committee on Canada's second and third reports were provided to all relevant federal departments after they were received. The summary records and a summary of the questions raised by the Committee were provided to all officials participating in the preparation of the present report, at the federal, provincial and territorial levels, with a request that questions and concerns of the Committee be taken into account in preparing the present report.
19. The Continuing Committee of Officials on Human Rights, which is the federal-provincial-territorial committee responsible for maintaining collaboration and consultation among governments in Canada with respect to implementation of international human rights instruments that Canada has ratified, is currently considering how better to achieve adequate follow-up to the concluding observations of United Nations committees on human rights matters, and has agreed that the question of implementation of human rights treaties should be a standing item on the agenda for its meetings.
20. Canada subscribes to the principles set forth in this document.
General
21. Information relating to the equal rights protection of section 15 of the Canadian Charter of Rights and Freedoms is provided under article 26. Certain Charter rights (electoral rights (sect. 3), mobility rights (sect. 6) and minority-language educational rights (sect. 23)) are guaranteed only to Canadian citizens (or, in the case of internal mobility rights, to Canadian citizens and permanent residents (sect. 6 (2)). For the most part, however, rights under the Charter are guaranteed in general terms to "everyone", "every individual" or "anyone".
22. The Canadian Charter of Rights and Freedoms, which is part of the Constitution of Canada and applies to all governments in Canada, is not a direct incorporation of the Covenant into domestic Canadian law. There are differences in both structure and substance between the two documents. However, the rights recognized in the Covenant are protected in Canada by a combination of constitutional, legislative and other measures. As Canada is a federal State, different aspects of human rights fall within the jurisdiction of the different levels of government (federal, provincial, territorial). There are a number of mechanisms that promote coordination and consistency between jurisdictions. See also paragraphs 276-278.
23. There are three remedy provisions in the Canadian Constitution, which together provide effective remedies for violations of human rights. Subsection 24 (1) of the Canadian Charter of Rights and Freedoms enables anyone whose Charter rights or freedoms have been infringed to apply to a court of competent jurisdiction for an appropriate and just remedy. Among other things, this section may permit courts to award monetary damages (RJR-Macdonald Inc. v. Canada (Attorney-General); R. v. Mills; R. v. Nelles) and injunctions (Operation Dismantle Inc. et al. v. The Queen; Metropolitan Stores (MTS) Ltd. et al. v. A.G. Manitoba). A court is of competent jurisdiction for the purposes of section 24 (1), if that court has jurisdiction over the person, the subject matter, and the remedy sought (Mills, Douglas/Kwantlen Faculty Assn. v. Douglas College and Cuddy Chicks Ltd. v. Ontario (Labour Relations Board)).
24. In Kourtessis v. M.N.R., the Supreme Court of Canada discussed the availability of the remedy of seeking a declaration of unconstitutionality as a separate collateral action. The Court held that separate collateral actions should not be widely used to create an automatic right of appeal where Parliament has, for sound policy reasons, provided a reasonably effective review procedure. However, where legislative provisions do not provide an adequate means for the constitutional review of, in this case, a search warrant, an action for a declaration is available before a superior court of inherent jurisdiction.
25. Subsection 24 (2) of the Charter provides for the exclusion of evidence, where there is violation of a Charter right and where, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.
26. Section 52 of the Constitution Act, 1982 states that the Constitution is the supreme law of Canada and that any law that is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency. This section permits courts to declare entire statutes or individual provisions invalid or, in special cases, to delete or add words to remedy a provision that is found contrary to the Charter (Schachter v. Canada). A declaration of invalidity may be temporarily suspended, where it is considered necessary to allow time for the legislature to amend the law.
27. Courts have held that corporations are not entitled to claim, in their own right, rights and freedoms, which are guaranteed only to individuals (for example, the section 15 guarantee of equality) or which only natural persons are able to possess (such as freedom of religion and conscience (sect. 2 (a)) and life, liberty and security of the person (sect. 7)) (R. v. Big M. Drug Mart Ltd.; Irwin Toy v. Attorney-General Quebec; Edmonton Journal v. A.G. Alberta et al; Canada (A.G.) v. Central Canada Cartage Co.). In some circumstances, however, Charter claims can be advanced even by persons who are not themselves entitled to rely upon the rights in question. First, it is always open to a defendant to challenge the constitutional validity of a generally applicable legislative enactment (Big M. Drug Mart). Second, Canadian courts have recently expanded the rules for public interest standing, enhancing the ability of persons not directly affected by government action to pursue Charter claims (Borowski v. A.G. Canada et al; Canadian Council of Churches v. The Quee ).
28. In addition to these constitutional avenues for remedies, there are administrative and judicial avenues for the redress of rights protected by legislative or other measures. Human rights tribunals, the Federal Court of Canada and the provincial superior courts all have jurisdiction over various aspects of human rights protection in Canada.
Factors and difficulties
29. Canada views its system of administrative tribunals and courts as providing effective and independent authorities for the provision of remedies. In many cases, there is more than one avenue of review and, at times, confusion or preferences can develop within the legal community. In R. v. Reza, the Supreme Court of Canada upheld the exercise of discretion by a provincial superior court judge to decline jurisdiction to hear Charter arguments, where the judge was of the opinion that the matter was better placed before the Federal Court of Canada. Counsel for the appellant had argued that Reza should be entitled to bring his Charter challenge to provisions of the Immigration Act before the superior court in Ontario. The Supreme Court of Canada did not accept that the appellant could not obtain an effective remedy in the Federal Court.
Specific concerns of the Human Rights Committee
30. The Committee has asked whether the Aboriginal peoples of the Yukon and Northwest Territories may go before the Canadian Human Rights Commission. While there are two broad qualifiers, they may. Section 67 of the Canadian Human Rights Act exempts the Indian Act, and provisions made under it, from the application of the Act. Section 63 limits the scope of complaints to acts or omissions in the Yukon and Northwest Territories to which the Act would apply, if those acts or omissions occurred in a province. That is, Aboriginal peoples in the territories of Canada have the same access to the Canadian Human Rights Commission as Aboriginal Canadians in other parts of Canada. The Yukon and the Northwest Territories both have human rights legislation, which covers those acts or omissions falling within what would be provincial spheres of influence if the territories were provinces. Although Aboriginal Canadians cannot bring complaints of discrimination concerning the Indian Act before the Commission, they can commence a Charter challenge in the courts for the protection of their equality rights.
31. In its General Comment 3, the Committee suggests that the Covenant should be publicized in all official languages of the State, and steps should be taken to familiarize administrative and judicial authorities with its contents as part of their training. Federally and provincially appointed judges in Canada receive training in such international human rights instruments as the Covenant in the context of training with respect to the Canadian Charter of Rights and Freedoms. One of the important effects of the Charter on the Canadian legal landscape has been the growing awareness on the part of lawyers, judges and tribunal members of international human rights instruments generally. Training with respect to these instruments has tended to develop in response to this awareness.
32. For information on the equal rights of men and women to enjoy Covenant rights, including positive measures to advance the position of women in society and case law on anti-discrimination legislation (human rights codes) and section 15 (equality rights) of the Canadian Charter of Rights and Freedoms, see the section of this report concerning article 26 of the Covenant. Section 28 of the Charter, which guarantees Charter rights and freedoms equally to men and women (parallel to the requirement in article 3 regarding Covenant rights), has not as yet been applied in conjunction with other provisions of the Charter to find a Charter breach, independently of section 15 (see paras. 199 and 242 on the Native Women's Association of Canada case).
33. Section 33 of the Charter permits Parliament or a provincial legislature to declare legislation to operate notwithstanding the guarantee of certain Charter rights - namely, the fundamental freedoms (sect. 2), the legal rights guarantees (sects. 7-14, including the right to life, liberty and security of the person) and the guarantee of equality (sect. 15). Democratic rights (sects. 3-5), mobility rights (sect. 6) and official-language and minority-language educational rights (sects. 16-23) are not subject to the section 33 override. A declaration made under section 33 automatically lapses five years after coming into force (or earlier if specified in the legislation), although it may, at that time, be re-enacted by the legislative body in question.
34. To date, the Government of Canada has never sought to invoke the override power contained in section 33. The provision has been used by two provinces - Saskatchewan and Quebec. At this point, given the infrequency with which the provision has been invoked and the resultant absence of jurisprudence, the precise effects of section 33 remain uncertain. The only guidance thus far comes from a Supreme Court of Canada decision holding that a reference to the Charter provision(s) sought to be overridden is sufficient for an enactment to qualify under section 33, but that section 33 does not allow Parliament or a legislature to enact retroactive override provisions (Ford v. A.G. Qué.). Beyond this, it remains uncertain what, if any, limitations beyond those set out in the provision itself (i.e. the requirement of express declaration and the five-year limitation rule) the courts may see fit to impose upon the use of the notwithstanding clause.
35. As discussed in previous reports, the Emergencies Act, which is federal legislation, permits the Governor in Council to take "special temporary measures" at times of "public welfare emergency", "public order emergency" or "international emergency". This Act has never been invoked. In the period covered by this report, the Government of Canada has not had occasion to declare an emergency or use emergency measures or to derogate from any Covenant rights.
36. During the events at Oka, which are discussed in paragraphs 297-298 of this report, the Canadian military were used in aid of the civilian power at the request of the Province of Quebec. The use of the military in this way is authorized under the National Defence Act. No state of emergency was declared, and there was no derogation from Covenant rights.
37. The Committee, in response to Canada's third report, asked whether the reference in section 4 (b) of the Emergencies Act only to citizens and permanent residents offended article 4, paragraph 1, of the Covenant. This provision was inserted in the Emergencies Act for historical reasons and is meant to ensure that Canada will never again engage in practices such as those used against Canadians of Japanese origin during the Second World War. This provision does not mean that Canada could treat persons who are not citizens or permanent residents in a discriminatory manner.
38. See paragraphs 11-16 on section 1 (reasonable limitations) of the Charter, and paragraphs 203-205 on implementation of article 20 of the Covenant.
39. Section 7 of the Charter guarantees "the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".
40. Federal legislation protects the right to life. Provisions of the Criminal Code make it an offence to murder, even if the motive is to end life for reasons of mercy. It is also an offence to assist others to commit suicide. The death penalty provisions of the National Defence Act (sentence of death possible for very serious offences) are under review. The death penalty has not been sought during the period covered in this report.
Canadian Charter of Rights and Freedoms
41. In Kindler v. Canada and Reference re Ng Extradition, the Supreme Court of Canada considered decisions by the Minister of Justice to extradite two fugitives to the United States. These decisions were challenged as being violations of section 7 (right to life, liberty and security of the person) and section 12 (protection against cruel and unusual treatment or punishment) of the Charter on the basis that the Minister of Justice had not sought assurances that the death penalty would not be imposed. The Court stated that, while section 12 did not apply to the decision to extradite, the protection against cruel and unusual treatment was to be considered as an aspect of section 7. It also stated that the question to be answered was whether the circumstances facing the fugitive in the requesting State would "shock the conscience". The Court held that the decisions to return Kindler and Ng to the United States to face the possible imposition of the death penalty as punishment for crimes committed there did not offend the principles of fundamental justice in section 7. In coming to its decision, the Court considered international law on the use of the death penalty and concluded that the death penalty in certain circumstances was not contrary to international law.
42. In Rodriguez v. British Columbia, the Supreme Court of Canada stated that section 7 of the Charter protects the sanctity of life. Section 241 (b) of the Criminal Code, which prevents a physically disabled person from obtaining medical assistance in committing suicide, was found to be consistent with section 7 of the Charter. The Code provision was held to be grounded in the State's interest in protecting life and to reflect the policy of the State that human life should not be depreciated by allowing life to be taken. The Court noted that this State interest is also found in other provisions of the Code which prohibit murder and other violent acts notwithstanding the consent of the victim.
Legislative and other developments
43. In 1994, section 25 of the Criminal Code was amended with respect to the use of deadly force by peace officers and anyone lawfully assisting them. The provision that justifies the use of deadly force (that is force intended or likely to cause death or serious bodily harm to a person) against a person fleeing from an arrest requires that the peace officer believe, on reasonable grounds, that the suspect poses a threat of serious harm or death to that officer or the public, and that no other reasonable or less violent means exists to prevent escape. Subsection 25 (5) provides that all necessary measures must be taken to stop an escape in progress from maximum- and medium-security institutions, when there are reasonable grounds to believe that the escapee poses a threat of serious harm to someone in the community, and no other reasonable interventions would prevent escape.
Follow-up action to Committee decisions
44. Following the decisions of the Committee in Kindler v. Canada, Ng v. Canada and Cox v. Canada, which raised articles 6 and 7 of the Covenant, the Minister of Justice takes into consideration the protection afforded by the Covenant in decisions on extradition requests that raise the issue of the death penalty.
45. In General Comment 6 on article 6, the Human Rights Committee refers to the adoption of positive measures by States to reduce infant mortality and to increase life expectancy through the elimination of malnutrition and epidemics.
46. Following the 1990 World Summit on Children, the Government of Canada began to work toward the development of national child health goals through the Children at Risk Initiative Programme. Between December 1992 and February 1994, a series of four consensus conferences were held at which national goals and objectives for the control of vaccine-preventable diseases of infants and children were formulated.
47. In 1991, a Canadian Expert Working Group for Breastfeeding, made up of health professionals, breastfeeding advocates, non-governmental organizations and government representatives, was formed to work cooperatively to promote breastfeeding within Canada as the optimal method of infant feeding. The Government of Canada supports the World Health Organization (WHO) International Code of Marketing of Breast-milk Substitutes. A five-year social marketing strategy for the promotion of breastfeeding has been developed.
48. In 1994, the Government of Canada introduced the Canada Prenatal Nutrition Programme to support comprehensive community-based services designed to build upon existing prenatal health programmes across Canada. The Programme aims include: a reduction in the incidence of low birth weight and the promotion of the growth of healthy babies; improved health of pregnant women; increased support for new parents, and increased community resources and programmes to address the needs of mothers and infants at risk from pre-conception through infancy, including access to culturally and linguistically sensitive programming.
49. Section 12 of the Charter protects everyone against cruel and unusual punishment or treatment. The right to security of the person under section 7 of the Charter also provides protection against torture and other inhumane treatment in certain contexts. While the law on consent to medical treatment has largely developed as an aspect of the common law, the application of the Charter to government action means that section 12 and section 7 are important additions to the protection of rights in respect of medical treatment or scientific experimentation.
50. There is no legislation at the federal level that specifically regulates medical research involving human beings. In rare circumstances, the provisions of the Criminal Code relating to assault, criminal negligence and murder may apply in the biomedical context. The Medical Research Council, a federal body, maintains policy guidelines governing medical and scientific research. Similarly, the Drugs Directorate at Health Canada has developed guidelines governing clinical trials of new drugs. The National Research Council has established a Human Subjects Research Ethics Committee.
51. As noted in the third report, Canada ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 26 January 1990.
52. In Steele v. Mountain Institution, the Supreme Court of Canada held that 37 years of incarceration had long since become a grossly disproportionate punishment for the inmate in the circumstances of his case and therefore a violation of section 12 of the Charter. The Court did not find fault with the dangerous-offender sentencing provisions under which the inmate was being held but rather found that the Parole Board had failed, in his case, to carefully apply the criteria for release (maximum benefit from incarceration, furtherance of rehabilitation through parole and risk to society).
53. In Kindler v. Canada and Reference re Ng Extradition, referred to under article 6, the Supreme Court of Canada commented, in obiter, that a governmental decision to return (extradition context) a person to another country to the possibility of torture would violate section 7 of the Charter. The Federal Court of Canada has expressed the view, also in obiter, that removal (immigration context) of a person to a country to face torture would violate section 12 of the Charter (Nguyen (Van Hung) v. M.E.I.).
54. In R. v. Goltz, the Supreme Court of Canada affirmed the analysis of section 12 of the Charter, which it had adopted in R. v. Smith (mentioned in Canada's second report). Treatment or punishment which is grossly disproportionate to the offence or the offender will violate section 12. Particular attention must be paid to circumstances or characteristics of the individual or group affected.
Other jurisprudence
55. In Engel v. Salyn, the Supreme Court of Canada, in a civil case raising the issue of mitigation of damages, stated that the inviolability of the human body is a fundamental legal principle and the onus for proving the need for medical testing lies on those seeking to perform that testing.
56. In Norberg v. Wynrib, the Supreme Court of Canada held that the defence of consent to an allegation of the tort of battery was not available, where "consent" to a sexual relationship with a doctor was given by a woman dependent on drugs in order to obtain drugs. The Court stated that there was a marked inequality in bargaining power between the doctor and the patient in these circumstances, and the doctor exploited this.
57. In Nancy B. v. H_tel Dieu de Québec, the Quebec Superior Court held that a women with a serious neurological disorder had the right to decline medical treatment in the form of the continued use of a respirator, even though death would result. The Court stated that the right of the individual to decline treatment is almost absolute, subject only to a limitation regarding the life and health of others. This decision may be contrasted with the decision of the Supreme Court of Canada in Rodriguez v. British Columbia discussed under article 6.
58. Among a number of strategic priorities set for the Royal Canadian Mounted Police (RCMP) in the 1990 Commissioner's Directional Statement were the development of community policing, policing services for Aboriginals and policing services for visible minorities. Since that time, the RCMP has developed an affirmative action plan to attract visible minority recruits and has developed contacts with advisory committees and consultative groups with representatives of Aboriginal and visible minority communities. The RCMP is a member of the Canadian Centre for Police Race Relations.
59. The Canadian Centre for Police Race Relations was formed in 1991. The Centre, together with the Police Multicultural Liaison Committee, works toward the development of national understanding and proactive measures in police race relations. A First Nations Policing Policy and Programme now exists to negotiate new policing arrangements for the First Nations of Canada to provide policing for First Nations that is sensitive to the cultural needs of those communities.
60. The Corrections and Conditional Release Act (CCRA) came into force on 1 November 1992, repealing and replacing the Parole Act and the Penitentiary Act. Section 69 of the new Act provides that no person shall administer, instigate, consent to or acquiesce in any cruel, inhumane or degrading treatment or punishment of an offender who is or has been incarcerated in a penitentiary.
61. Other policies of the Correctional Service of Canada (CSC) require the placement of community observers in institutions following a serious incident that involves violence against staff. CSC policy and section 174 of the CCRA allows the Correctional Investigator or a representative to be present as an observer during an emergency situation. Post-emergency policy also explicitly states that inmates are to be treated fairly and humanely, and provides for a thorough investigation into all aspects of the incident.
62. Section 9 of the Commissioner's Directive 800 relates to the participation of medical personnel in interrogations and provides that medication shall be provided to inmates only when clinically indicated and not for restraint or security purposes. Section 88 of the CCRA ensures the offender's right to accept or refuse any medical treatment. Section 89 of the CCRA prohibits the force-feeding of an inmate who had the capacity to understand the consequence of fasting at the time the decision to fast was made.
63. All new correctional officers in CSC receive a 10-week training programme which includes training with respect to the Charter, the Criminal Code, the Corrections and Conditional Release Act, the duty to act fairly and the use of force. Staff may be held criminally and civilly liable for any excessive use of force. Relevant provisions of the Code of Discipline, as well as a booklet outlining the principles to be observed by CSC employees, are attached as annex 2.
64. In 1994, the guidelines developed to assist immigration officers acting as post-claim determination officers with the interpretation of regulations governing the Post-Determination Refugee Class in Canada were expanded. Under this class, failed refugee claimants are permitted to remain in Canada, if, on return to their country, they would face an objectively identifiable risk of extreme sanctions or inhuman treatment. The expanded guidelines are meant to assist immigration officers to apply the regulations governing the class in a manner consistent with article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as well as Canada's other international human rights obligations.
65. In 1993, members of the Canadian Airborne Regiment were stationed at Belet Huen as part of the United Nations efforts in Somalia. A Somali male was beaten to death, after he was found and apprehended inside the Canadian compound. The Canadian Armed Forces charged eight individuals under the National Defence Act as a result of this death. Charges ranged from murder and torture in the beating to death of the Somali youth to unlawfully causing bodily harm and negligent performance of duty. Many of these actions are now at the appeal stage.
66. Section 7 of the Charter guarantees everyone the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
67. The provisions of the Criminal Code discussed in previous reports are still applicable.
68. The case of Tuppatsch v. U.I.A. involved an unemployment insurance benefit claimant who had worked seven weeks (40 hours a week) during his benefit period in a job-creation programme. The Canada Employment and Immigration Commission sought repayment of the benefit when it was learned that, through an error, the claimant had worked only 19 weeks (the qualifying period was 20 weeks). The Umpire granted relief from repayment finding that repayment of what are wages amounts to slavery and would be inconsistent with Charter values.
69. A recurring problem for Canada is that of the prostitution of children. In addition to the indictable offences in the Criminal Code (section 212 (1) procuring and section 212 (2) living off the avails of a prostitute under 18 years), Canada is pursuing a multidisciplinary approach to address the issue of juveniles involved in prostitution.
70. In the fall of 1992, a Federal-Provincial-Territorial Working Group on Prostitution was established. This working group of deputy ministers is considering, inter alia, the adequacy of federal and provincial legislation relevant to prostitution, the role of municipalities, law-enforcement issues and possible partnerships between departments of justice and other government agencies in addressing problems posed by prostitution. Recommended options are being developed to address juvenile prostitution, identified as a priority area.
71. The Police and Security Branch of the Department of the Solicitor General, with funds from the "Brighter Futures Initiative", is also focusing on the issue of juvenile prostitution and child pornography, and is consulting extensively with the policing community. As well, the Department of the Solicitor General and the Department of Justice are jointly undertaking a research study, entitled "Violence against street prostitutes".
72. The rights protected by article 9 of the Covenant are protected in the Charter by section 7 (right to life, liberty and security of the person), section 9 (protection against arbitrary detention), section 10 (rights upon arrest or detention) and section 11 (rights of persons charged with an offence). The cases discussed below demonstrate the extent to which progress on the protection of rights has been achieved under the Charter.
Liberty and security of the person
73. In R. v. Swain, the Supreme Court of Canada struck down as unconstitutional the provision of the Criminal Code, which required the trial judge to order the detention of a person found not guilty by reason of insanity. The Court found that the automatic ordering of "strict custody" required by the provision without any hearing on the issue of the person's current mental state directly affected the liberty interest of the person and offended the principles of fundamental justice contrary to section 7 of the Charter. In addition, detention under the provision was found to be arbitrary in violation of section 9 of the Charter.
74. As a result of its decision in R. v. Vaillancourt, there was reason to believe that the Supreme Court of Canada favoured subjective mens rea as the foundation of its conception of the constitutional requirement of fault for Criminal Code offences. However, in R. v. Wholesale Travel Group Inc., Desousa v. The Queen and Hundal v. The Queen, the Court allowed that objective standards of fault can be incorporated in criminal legislation, provided that the stigma and penalty involved in the offence do not otherwise require fault based on a subjective standard. A person may be held criminally liable for negligent conduct but this alone does not violate the principle of fundamental justice that the moral fault of the accused must be commensurate with the gravity of the offence and its penalty.
75. R. v. Creighton (unlawful act manslaughter), R. v. Finlay (careless use of firearms), R. v. Gossett (unlawful act homicide involving the careless use of a firearm) and R. v. Naglik (failure to provide the necessities of life) are four more recent cases handed down by the Supreme Court of Canada that further clarify the issue of the requisite mens rea. In each of these cases, an objective standard was found to be applicable without thereby occasioning a breach of Charter protections. The Court held that there is no general constitutional principle requiring subjective foresight for criminal offences. However, the principles of fundamental justice require, for certain crimes, a mens rea reflecting the particular nature of the crime, the special nature of the stigma that attaches to a conviction, or the available penalties.
76. In R. v. Heywood, the Supreme Court of Canada struck down as unconstitutional a provision of the Criminal Code, which subjected a person convicted of certain sexual offences to a lifetime prohibition not to commit vagrancy by loitering near playgrounds, schoolyards or parks. The Court held that the provision, which was meant to protect children from becoming victims of sexual offences, affected the liberty interest and infringed principles of fundamental justice, because it restricted liberty far more than necessary to accomplish its goal. The section was found to be overly broad in its geographical ambit and in the fact that it applied for life with no possibility of review. It was found to be over-inclusive, as it applied to all persons convicted of listed offences, without regard to whether they constituted a danger to children. The absence of notice was also held to offend the principles of fundamental justice.
77. In R. v. Daviault, the Supreme Court of Canada held that the common-law rule, which stated that drunkenness cannot be a defence for general intent offences, violated the Charter as being contrary to both the principles of fundamental justice (sect. 7 (liberty interest)) and the presumption of innocence (sect. 11 (d)). The Court stated that, while the mental element in general intent offences may be minimal, the substituted mens rea of an intention to become drunk cannot establish the mens rea to commit assault, as it cannot be assumed that all the consequences of voluntary intoxication are themselves either voluntary or predictable. As the case involved sexual assault, the Court noted that ordinarily in such cases mens rea can be inferred from proof that the assault was committed by the accused. The Court held, however, that the defence of drunkenness could only be put to a jury in general intent offences if it was demonstrated that there was such extreme intoxication that there was an absence of awareness, akin to a state of insanity or automatism. The defence must be established by the accused on a balance of probabilities, rather than by simply raising a reasonable doubt.
78. Following upon the decision of the Supreme Court of Canada in R. v. Swain, discussed in paragraph 73 above, the Criminal Code was amended to provide that, where a verdict of not criminally responsible for reason of mental disorder is rendered against a person charged with a criminal offence, the court or a Review Board will hold a hearing to determine the appropriate disposition. The person may be given an absolute discharge, a conditional discharge or be ordered detained in custody in a mental health facility. The court or Review Board must impose a disposition that is the least onerous and least restrictive to the accused, taking into consideration the need to protect the public from dangerous persons, the person's mental condition, his or her reintegration into society and any other needs of the person.
79. Following the Court of Appeal's decision in R. v. Heywood, discussed in paragraph 76 above, section 161 of the Criminal Code was enacted. This new provision provides that a judge may make an order prohibiting an offender from attending parks or swimming areas where persons under age 14 are present, or from working in jobs that involve being in a position of trust or authority over persons under age 14. The order may be made in respect of persons convicted of sexual offences against children, and may be for life or for any shorter duration.
Measures foreseen
80. Following the decision of the Supreme Court of Canada in R. v. Daviault, discussed in paragraph 77 above, the public expressed concerns that this decision would open the floodgates to claims of drunkenness as a defence to charges of sexual assault, reverse gains achieved over the years in the reform of the law of sexual assault and resurrect previously discredited approaches favouring the accused. This led the Minister of Justice to table corrective legislation on 24 February 1995. This bill proposes an amendment to the Criminal Code to provide that intoxication is not a defence to any general intent crimes of violence (e.g. assault and sexual assault). The bill creates a "standard of care" that would be breached by anyone who becomes extremely intoxicated and who causes harm to another person while in that State. A person departing from this standard will be unable to rely upon the defence of extreme intoxication akin to automatism.
81. The issue of high-risk offenders has generated significant social and political comment over the past two years. As was discussed in Canada's second report, the Criminal Code sentencing provisions for dangerous offenders were upheld under the Charter by the Supreme Court of Canada in 1987. The present controversy relates to convicted offenders who are still considered dangerous but who were not prosecuted as dangerous offenders at the time of sentencing. A variety of approaches are under consideration for addressing the concerns surrounding the release of persons at high risk of committing crimes dangerous to the public. The potential for using provincial mental health legislation to civilly commit certain offenders is being assessed. In addition, the legal and constitutional implications of detaining such persons under the criminal-law power at the expiry of their sentences are being studied. It will be several years before any policy or legislative initiatives are developed.
Arbitrary detention
82. In Cunningham v. Canada, the Supreme Court of Canada upheld the validity of a provision in the Parole Act (now found in the Corrections and Conditional Release Act), which permits the denial of early release on conditions of mandatory supervision, where there are reasonable grounds to believe that the inmate is likely to commit an offence causing death or serious bodily harm. The Court held that, although the deprivation of liberty was sufficiently serious to engage section 7 of the Charter, the changes to the Parole Act effected by the 1986 amendments did not violate the principles of fundamental justice. These principles were found to include not only the interests of the individual who asserts a violation of rights but also the protection of society. The procedures and requirements (a hearing, representation for the prisoner, limitations on the material to be consulted, etc.) provide adequate safeguards against arbitrary or capricious orders, and ensure that denial of release on mandatory supervision occurs only where necessary to protect the public and only after due regard has been paid to the prisoner's interest in obtaining his release.
83. In R. v. Storrey, an 18-hour delay in charging an accused after his arrest was held not to be unreasonable or contrary to section 9 of the Charter in the particular circumstances of the case. The delay was occasioned by the necessity to await the victim's arrival from outside the jurisdiction to view the accused's line-up and determine whether or not the accused would be identified. The accused in this case was charged and taken before a Justice of the Peace immediately after his identification in the line-up.
84. There is no doubt that a person is detained once the police stop and question a motorist under routine check and random-stopping programmes that are authorized by motor vehicle legislation. Consequently, where any questioning or searching goes beyond the purpose of the legislation (which is to check licences and insurance, the sobriety of the driver or the fitness of the vehicle) the person consenting to answer questions or permitting the search must be properly informed and fully aware of his rights, or a violation of the Charter will have occurred and the evidence so gathered will be excluded (R. v. Mellenthin).
Right to be informed of charges
85. In a case where a suspect was tricked into providing a blood sample for DNA analysis ostensibly in relation to one sexual assault investigation, where the police were in fact seeking the evidence for another undisclosed investigation, the Supreme Court of Canada found a violation of section 10 (a) (as well as section 10 (b) and section 8) of the Charter, and the evidence was excluded under section 24 (2) (R. v. Borden).
Trial within a reasonable time
86. The Charter's guarantee of trial within a reasonable time in section 11 (b) has had a substantial effect on Canadian practices. In R. v. Askov, the Supreme Court of Canada expounded at length on the meaning of this provision. As a result of this case, thousands of criminal charges across the country were thrown out because of unreasonable delay. The case reiterates the significance of four factors previously identified in the assessment of whether a delay has been unreasonable: (1) the length of the delay; (2) the reason for the delay, including limits on institutional resources and the inherent time requirements of the case; (3) waiver of time periods; and (4) prejudice to the accused. The controversy that ensued in the aftermath of this decision stemmed primarily from the Court's statement that systemic delays will not be lightly tolerated.
87. Cases subsequent to Askov have clarified that ruling and ensured that there has been no creation of a judicially developed limitation period that is to be mechanically applied, whenever there is systemic delay. In every case, the court is required to weigh the four factors described above (R. v. Morin). Morin also stands for the proposition that pre-charge delay may, in certain circumstances, have a bearing or influence on the overall determination as to whether post-charge delay is unreasonable, but, of itself, it is not counted in determining the length of the delay.
88. The trials of young people involve contingencies having a bearing on trial within a reasonable time. As with all cases, charges against young offenders must be proceeded with promptly. However, in some cases, what is a reasonable delay will be affected by the inherent time requirements involved in seeking transfers to adult court and appeals in relation thereto (R. v. D.(S.)).
89. In R. v. CIP Inc., the Supreme Court of Canada determined that a corporate accused charged with a regulatory offence has a right to be tried within a reasonable time.
90. The right to trial within a reasonable time under section 11 (b) has been held by the Supreme Court of Canada not to apply to appellate delay, regardless of whether it is the accused or the Crown who is appealing (R. v. Potvin). The Court found support for this position in the jurisprudence of the European Court of Human Rights, which has limited the interpretation of article 5 (3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which deals with expeditious justice, to trials of first instance. The Court noted in contrast that article 6 (1) of the European Convention, which addresses fair trial considerations, has been interpreted to extend to the supervision of appellate delay. In parallel fashion, Potvin asserts that, in extraordinary circumstances, section 7 of the Charter may command a consideration of appellate delay, if the fairness of trial will be adversely affected.
Release pending trial
91. The pre-trial detention (bail release) provisions of the Criminal Code (sects. 515 (6) (a), 515 (6) (d) and 515 (10) (b)) were challenged as violating sections 7, 9 and 11 (e) (right to bail) of the Charter in the cases of R. v. Pearson and R. v. Morales. Section 515 (6) of the Code (persons charged with drug offences shall be detained pending trial, unless they can show cause why detention is not justified) was upheld in Pearson. Although persons were "detained" under that provision, the Supreme Court of Canada concluded that they were not detained "arbitrarily". A discretion is arbitrary if there are no criteria to guide its exercise. This provision sets out a process with fixed standards, and the process created is in no way characterized by unstructured discretion. Specific conditions for bail are set out, and the process itself is subject to exacting procedural guarantees including review by a superior court. In Morales, the adequacy of two criteria justifying detention - "public safety" and "public interest" - in section 515 (10) of the Code was considered by the Court. The "public safety" component was found not to violate the Charter for reasons similar to those set out in Pearson, but the "public interest" component was held to be unconstitutionally vague, and incapable of guiding and structuring discretion in this context.
92. Bill C-42, a miscellaneous criminal law amendment bill, received Royal Assent on 15 December 1994. Its provisions are in force as of 1 April 1995. This bill gives the police the power to release an arrested person on certain conditions restricting liberty. This power of conditional release provides the police with a third option in addition to the previous choices of releasing unconditionally or detaining in custody until a hearing before a Justice of the Peace. The bill also permits a Justice of the Peace to conduct a hearing on release from custody by telephone. It is thought that these new provisions of the Criminal Code will reduce the number of persons held in custody following arrest and will reduce the period of time that persons are held in custody pending a hearing before a Justice of the Peace.
Detention review
93. As was noted in previous reports, section 10 (c) of the Charter provides the right to have the validity of a detention determined by way of habeas corpus. The Immigration Act, which permits the detention of persons in certain circumstances, provides an automatic detention-review mechanism.
94. As part of the amendments to the Criminal Code dealing with verdicts of "not criminally responsible" (discussed in paragraph 78), annual reviews of dispositions by the court or Review Board are mandatory, and more frequent reviews can be initiated at the request of the person or the administrator of the institution in which the person is placed. Disposition reviews are open to the public, the person may be represented by counsel and there is a right of appeal.
95. The detention provisions of the Immigration Act were amended in 1993 by Bill C-86 (which is discussed more generally under article 13). Section 103 of the Act expressly provides that detention reviews are to be conducted in public, unless the adjudicator is satisfied that there is a serious possibility that the life, liberty or security of the person detained would be endangered by a public hearing. Detention reviews for persons held under section 103 (persons detained for an examination, hearing or removal on the basis that they pose a danger to the public or would be unlikely to appear) must be held initially within 48 hours. A second review must be held within 7 days. However, subsequent reviews need only be held at least once every 30 days. Section 103.1 now provides that detention reviews shall be held in camera in respect of persons detained at the border for inability to establish their identity or where the Deputy Minister or Minister of Citizenship and Immigration has reason to suspect that the person has been, may be or will be engaged in espionage, terrorism, acts of violence, war crimes or crimes against humanity (sect. 19 (1) (e), (f), (g), (j), (k) or (l)) but only where the Minister of Justice has certified in writing that an additional period of detention is required to investigate these matters. In such cases, detention reviews must be conducted every 7 days.
96. Section 12 of the Charter provides protection against cruel and unusual treatment or punishment.
97. As noted in earlier reports, jurisdiction over correctional institutions is shared between the federal Parliament and the provincial legislatures. Relevant federal legislation includes the Corrections and Conditional Release Act (CCRA), which is also discussed under article 7, and the Young Offenders Act (YOA), which is discussed more fully under paragraphs 159 to 171. The CCRA enacts a policy approach in which it is recognized that public safety, which is the paramount consideration in the corrections process, is best protected through the rehabilitation of offenders, including the preparation of offenders for safe reintegration into the community.
98. In A.G. (Canada) v. Daniels, the Saskatchewan Court of Appeal set aside, on the basis of lack of jurisdiction, an order of a trial judge that a sentence not be served in the Prison for Women at Kingston. The case raised the question of whether an order of committal, which would result in a woman of Native ancestry from the prairie provinces being incarcerated far from her community violated sections 7, 12, 15 and 28 of the Charter. At the time, Kingston was the only penitentiary for women in Canada. See below, at paragraph 107, the discussion of the new federal correctional institutions for women.
99. In Conway v. R., the Supreme Court of Canada held that frisk searches and security patrols of inmates' living quarters in male penitentiaries by female guards did not infringe the inmates' right to privacy under section 7 or section 8 of the Charter or their equality rights under section 15. The Court held that the prison setting entails a substantially reduced level of privacy, as it requires surveillance, searching and scrutiny for the security of the inmates, other prisoners in the institution and the public. Thus, inmates do not have a reasonable expectation of privacy with respect to the practices in question, such that sections 7 and 8 are not implicated.
100. On 1 November 1992, the Corrections and Conditional Release Act (CCRA) came into force. The CCRA, the regulations enacted thereunder and the Directives of the Commissioner of Corrections govern matters relating to the treatment, health care and living conditions of inmates of federal penitentiaries. A number of these provisions are highlighted below.
101. Section 70 of the CCRA requires the Correctional Service of Canada (CSC) to take reasonable steps to ensure that the penitentiary, the penitentiary environment and the living and working conditions of inmates are safe, healthy and free of the practices that would undermine a person's sense of dignity.
102. Subsection 71 (1) of the CCRA provides that "in order to promote relationships between inmates and the community, an inmate is entitled to have reasonable contact, including visits and correspondence, with family, friends and other persons from outside the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons". Inmates are encouraged to maintain and develop family ties through written correspondence, telephone communications and visits, which will assist to prepare them for reintegration as law-abiding citizens.
103. Section 75 of the CCRA provides that "an inmate is entitled to reasonable opportunities to freely and openly participate in, and express, religion or spirituality" subject to the same limitations as contained in section 71. Section 83 provides, "for greater certainty, that Aboriginal spirituality and Aboriginal spiritual leaders have the same status as other religions and other religious leaders".
104. The Interfaith Committee on Chaplaincy is a national advisory body mandated to advise the CSC on matters related to religion. Over the period covered by this report, this advisory body has been expanding its membership to include members of more faith groups. Chaplains from minority-faith groups are on contract with the CSC, where numbers in a particular region warrant. Multifaith issues are an integral part of the orientation and training of chaplains, and all personnel are encouraged to attend activities that promote understanding of diverse religious traditions.
105. In 1991, an Aboriginal Corrections Unit was established within the Department of the Solicitor General to undertake innovative research and evaluation, development and communications projects.
106. In 1993, the Correctional Service introduced a random urinalysis and drug-testing programme in an effort to reduce substance abuse by inmates and the violence associated with the drug trade. The British Columbia Supreme Court has dismissed a challenge to the programme brought on the basis of sections 7 and 8 of the Charter. The Court of Appeal has stayed the use of the programme, pending resolution of an appeal.
107. There is currently only one federal penitentiary for women (at Kingston). Since 1973, about one third to one half of women sentenced to federal penitentiary have been able to serve their sentence in their home province under federal-provincial transfer arrangements. In 1990, on the recommendation of a national Task Force on Federally Sentenced Women, the Government of Canada decided to replace the existing system with five new facilities across the country. One of these facilities will be a healing lodge for Aboriginal women. While there have been unanticipated delays in site selection and the consultation process, the current schedule anticipates that all these facilities will be operational in 1996-1997.
108. A comprehensive mother-child programme is under development for the correctional facilities for women that are under construction. The programme is premised on ensuring that any institutional residential arrangement for newborn children of inmates, whether full- or part-time, is in the best interests of the child. At present, pregnant inmates receive comprehensive counselling and assistance, and their wishes respecting the custodial arrangements for their newborns are respected to the extent possible. Prenatal care is provided, and arrangements are made to permit birth to occur in hospitals outside correctional facilities. Since the current penitentiary for women is not a suitable environment for children due to its age and design, the Correctional Service arranges for transfers to provincial correctional facilities for women who wish to retain custody of their newborn children.
109. In 1992, amendments were made to the Young Offenders Act to deal with the question of the detention of young persons who were transferred to ordinary (adult) court. Section 16.1 states that persons under the age of 18 who are to be held in custody pending trial in ordinary court shall be held separate and apart from any adult in custody, unless the youth court judge is satisfied that the young person, in the best interests of that person and the safety of others, cannot be detained in a place of detention for young persons. Section 16.2 provides extensive guidelines for the sentencing judge on the choice of placement of a young person (a place of custody for young persons, a provincial facility for adults or a penitentiary) for the purpose of serving a sentence of imprisonment.
110. As noted under article 14, paragraph 160, the Young Offenders Act applies to youths 12 years or older but under 18 years. Pre-trial detention would not be authorized for youths under 12 who are involved in criminal activity. Instead, they may be found to be children in need of protection under child-protection legislation.
111. Canada is currently facing, at both the federal (sentenced to two years or more) and provincial (sentenced to less than two years) levels, a rapidly increasing inmate population and, therefore, a growing problem of crowding and double-bunking in its correctional facilities in a time of financial constraint. A number of measures are being pursued to attempt to deal with this problem. Renovations to existing structures will add 3,500 beds. Access to surplus provincial facilities is pursued through leasing arrangements and exchange-of-service agreements. Inmates are transferred within the federal system to less crowded institutions. Where double-bunking is necessary, accommodation policies provide that smaller cells are not used for this purpose and that it should be avoided for offenders with special needs and those with long-term sentences. It is recognized that, in the final analysis, the problem of crowded prisons requires fundamental changes to sentencing and progress in crime-prevention strategies.
112. In April 1994, inmates at the Prison for Women in Kingston assaulted six correctional officers, seriously injuring two. (Five inmates were subsequently convicted of assault, attempted hostage-taking, attempted escape and assaulting a peace officer.) As a result of this incident, the inmates were placed in segregation and, when seriously disruptive behaviour continued in segregation, the Institutional Emergency Response Team (IERT) was brought in from Kingston Penitentiary. Over the course of eight hours, all the inmates in segregation were placed in restraint equipment, stripped of regular clothing and placed in paper gowns by female officers in the presence of and, when required, with the assistance of the all-male emergency response team. The treatment of the inmates was subsequently investigated by an internal Board of Investigation convened by the Commissioner of Corrections and by the Correctional Investigator, an ombudsman for inmates in federal correctional institutions. The reports of these two investigations differed both on matters of fact and interpretation of the findings. In April 1995, the Solicitor General of Canada appointed a judicial officer to conduct an independent inquiry, which is expected to report in 1996. Independent of this inquiry, the service effected immediate changes to its policies and training of IERT who are to intervene in female facilities. In particular, every reasonable step shall be taken to remove male IERT members from the presence of female offenders who are being stripped.
113. The right of persons to move across Canada's international borders and to remain in Canada is governed by section 6 of the Canadian Charter of Rights and Freedoms and by the Immigration Act and Immigration Regulations. Section 6 (1) of the Charter provides that only Canadian citizens have a constitutional right to enter, remain in and leave Canada. As was discussed in previous reports, this constitutional right of citizens is subject to Canada's international extradition obligations. Under section 4 of the Immigration Act, persons with permanent resident status have a legal right to enter and remain in Canada. The Immigration Act governs the granting of permanent resident status, the ability of visitors to enter Canada and the protection of refugees consistent with Canada's obligations under the Convention relating to the Status of Refugees.
114. Liberty of movement within Canada is governed by section 6 (2) and section 6 (3) of the Charter and by legislative and other measures. Subsection 6 (2) gives citizens and persons with permanent resident status the constitutional right to move to and take up residence and pursue a livelihood in any province. This subsection of the Charter reflects the fact that Canada is a federal State and gives expression in the Constitution to rights that have long been exercised. Canadian legislation does not restrict, on the basis of immigration status, the liberty of movement of any individuals within the country nor does it restrict the right of persons to choose where they will reside.
115. In U.S.A. v. Cotroni, the Supreme Court of Canada expanded its analysis of the application of the Charter to the extradition of a Canadian citizen to face trial in another State for a crime that could be prosecuted in Canada. The Court applied section 1 of the Charter to find that the extradition of Cotroni was a reasonable limit on his right as a citizen to remain in Canada. Although Canada could take jurisdiction for the prosecution of his alleged criminal conduct, the requesting State in this case was in the better position to prosecute.
116. The administrative and judicial decision-making processes that govern the removal of aliens from Canada are found in the Immigration Act and the Immigration Regulations. Removal decisions are subject to the application of the Canadian Charter of Rights and Freedoms. In particular, section 7 of the Charter requires that decisions be consistent with the principles of fundamental justice where they affect an individual's life, liberty or security of the person. Immigration decisions also must be consistent with section 15 (equality rights) of the Charter.
117. In Chiarelli v. Minister of Employment and Immigration, the Supreme Court of Canada considered the constitutionality of provisions of the Immigration Act governing the deportation of persons with permanent resident status based on convictions for serious crimes. The Court held that the principles of the fundamental justice requirement of section 7 of the Charter was not infringed by a provision of the Act that denied an appeal on equitable grounds against an order of deportation to persons against whom there was an outstanding certificate issued by the Governor in Counsel stating that they were likely to engage in organized crime or other very serious crimes. The legislation did provide a right of appeal on grounds of fact, law or mixed fact and law. The Court also considered the mechanism by which the certificate was issued. It held that the hearing on the issue of whether there were reasonable grounds to believe a person will engage in organized crime did not infringe the principles of fundamental justice. The Security Intelligence Review Committee had given Chiarelli a summary of evidence, which it had received in camera and ex parte given the need to protect the sources of the information. The Court held that the process was acceptable in the context and found that he had been given an adequate amount of information to enable him to meet the case against him.
118. In Dehghani v. Minister of Employment and Immigration, the Supreme Court of Canada held that persons awaiting an interview with an immigration officer (secondary examination) at ports of entry were not detained within the meaning of section 10 (b) of the Charter (right to retain counsel on detention) and, therefore, the right to retain and instruct counsel did not arise. Assuming that section 7 (right to life, liberty and security of the person) of the Charter was engaged, where a refugee claimant is being interviewed at a point of entry, the Court held that the principles of fundamental justice do not require that the claimant be provided with counsel at the pre-hearing stage of the refugee determination process.
119. Following the decision of the Supreme Court of Canada in Dehghani v. M.E.I., discussed in paragraph 188 above, immigration officers were reminded that, where they decided to detain an individual under the Immigration Act, that person was entitled to be informed promptly of the reasons for detention, informed of the right to retain and instruct counsel and given a reasonable opportunity to exercise the right to counsel. Immigration officers were also instructed that, even in cases where the right to counsel did not arise, persons may be allowed the assistance of counsel or an adviser, provided that person is ready and able to proceed immediately.
120. In 1993, Bill C-86 became law, ushering in a comprehensive set of amendments to the Immigration Act. The Immigration Regulations were amended in three stages to complement the changes to the Act. Among the major policy changes affecting the removal of aliens were changes to the definitions of classes of persons inadmissible on the basis of criminality, a streamlining of the refugee determination process, changes to the process for applications for landing on humanitarian and compassionate grounds, and the creation of a class of persons who can apply for landed immigrant status from within Canada, in contrast to the general rule that requires persons to apply for landing from outside the country. In addition, senior immigration officers were given the authority to issue administrative removal orders in cases that raised no significant question of fact. Previously, all removal orders were issued by independent adjudicators on the basis of a formal hearing.
121. Amendments to the Immigration Regulations following upon Bill C-86 created the "post-determination refugee claimants in Canada class". The objective of this aspect of the amendments is to provide a "safety net" for persons who might fail to meet the definition of Convention refugee but who nonetheless face an objectively identifiable risk of serious harm if removed from Canada. There are a number of eligibility requirements including, for example, the requirement that the person has not left Canada. An assessment of the need for protection is done in the case of an unsuccessful refugee claimant, whether or not that person seeks an assessment. Decisions under this class are made by specially designated immigration officers whose training includes instruction on administrative law concepts of fair decision-making as well as on the Charter and Canada's international human rights obligations, including the Covenant.
122. The Immigration Regulations have been amended to add two other classes of persons who may seek landing within Canada. One is the "live-in caregivers in Canada class" which is designed to permit qualified persons who are admitted as temporary entrants and reside in the household of their employer in Canada to apply for permanent residence from within Canada after two years of employment. The other class, the "deferred removal orders class", was created to regularize the immigration status of certain persons who have had their claim to refugee status rejected but have not been promptly removed from Canada because of the Government's unwillingness or inability to return them to their country of origin due to conditions existing in that country at the time.
123. Bill C-44 proposes a number of amendments to the Immigration Act. The provisions determining the eligibility of persons convicted of serious crimes in Canada or elsewhere to claim refugee status will be refined. Senior immigration officers will be given the authority to inform the Immigration and Refugee Board concerning the serious criminality of a person claiming status at any time in the process. The Board will have the authority to terminate the refugee-determination process on the basis of ineligibility at that point. Immigration officials will be given the legislative authority to seize false travel documents or fraudulent passports which are found in transit to Canada by mail. The grounds for appeal to the Immigration Appeal Division will be restricted, and in some cases removed, for certain classes of persons involved in serious criminal behaviour. Instead, the Minister of Citizenship and Immigration or a delegate will consider humanitarian and compassionate grounds in the process of assessing serious criminality and certifying that a person is a danger to the public.
124. Sections 7 through 14 of the Charter provide guarantees of fair process. In addition, section 15, the equality rights provision of the Charter, has application to criminal and civil processes.
Equality before the courts
125. In R. v. S.(S.), the Supreme Court of Canada upheld the validity of section 4 of the Young Offenders Act, which was challenged under the equality rights provision of the Charter. The Court concluded that federal legislation, which permitted provincial differences in "alternate measures" programmes for dealing with a young offender who is alleged to have committed an offence, created a distinction in the law that was not discriminatory. The distinction was based on place of residence rather than on personal characteristics.
126. In R. v. Seaboyer, the Supreme Court of Canada found a provision of the Criminal Code, which restricted the right of the defence on a trial for a sexual offence to cross-examine and lead evidence of the victim's sexual conduct on other occasions, to violate sections 7 and 11 (d) of the Charter. The provision had been enacted to prevent the potential for a judge or jury to draw illegitimate inferences from the evidence of past sexual behaviour and to deal with an existing problem of a significant percentage of victims choosing not to report sexual behaviour. The Court held that the provision violated the Charter, because it created the potential for the exclusion of evidence that was relevant to the defence and whose probative value was not substantially outweighed by the prejudices to the trial process.
127. In R. v. Osolin, the Supreme Court of Canada upheld a provision of the Criminal Code, which imposes an "air of reality" test as a threshold to be met before the issue of mistaken belief in consent can be left to the jury in trials for sexual assault. The right to cross-examine has never been unlimited. It is a basic principle that evidence must be relevant to be admissible. In addition, the probative value of the evidence must be weighed against its prejudicial effect. The constitutionality of a limit to the scope of the cross-examination of a victim in a sexual assault trial should be assessed in light of the guarantee of equality to women and men in sections 15 and 28 of the Charter.
128. In R. v. Généreux, the application of a military system of justice to a member of the military charged with an offence under the Criminal Code was held not to violate the accused's equality rights under section 15 of the Charter.
Legislative and other measures
129. Following the decision of the Supreme Court of Canada in R. v. Seaboyer, which is discussed in paragraph 126, the Criminal Code was amended in 1992 to provide guidelines for judges on the admissibility of the past sexual history of victims of sexual offences. This amendment addressed an equality rights problem in Canada, wherein the defence of persons accused of sexual offences often seemed to place the victims themselves "on trial". The new provision outlines the procedure that must be followed in admitting such evidence, defines the notion of consent to sexual activity and restricts the defence of mistaken believe in consent in sexual assault cases. This last aspect of the amendment was upheld by the Court in R. v. Osolin discussed in paragraphs 127 and 150.
130. The National Judicial Institute offers training programmes on gender and multicultural sensitivity to provincially and federally appointed judges. Committees with members representative of their communities exist in each province to advise the federal Minister of Justice on judicial appointments. In the period covered by this report, increased efforts have been made to appoint women and members of minorities as federal judges. The percentage of federally appointed judges who are women has risen to over 14.4 per cent.
131. Members of administrative tribunals receive in-house training on cross-cultural awareness and gender issues. In addition, courses promoting awareness of equality issues are available from such organizations as the Council of Canadian Administrative Tribunals, the Canadian Institute for the Administration of Justice and the National Institute for the Administration of Tribunals.
Competent, independent and impartial tribunal
132. The right to a competent, independent and impartial tribunal is protected in Canadian law by a combination of section 7 (the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice) and section 11 (d) (the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal) of the Charter, various legislative provisions and administrative law principles.
133. In R. v. Lippé, the Supreme Court of Canada considered the constitutionality of a provision in legislation governing municipal court judges, which permits part-time judges to continue to practise law. The Court concluded that section 11 (d) of the Charter (guarantee of an independent and impartial tribunal) does not prohibit part-time judges but does guarantee that they will not engage in activities that are incompatible with their duties as judges. The provision was upheld on the basis that the legislation provided for a judicial oath, judicial immunity, a Code of Ethics, a public complaints system that could result in the removal of judges and the requirement that judges remove themselves from cases in specified circumstances.
134. In R. v. Bain, the Supreme Court of Canada held that the then existing jury-selection provisions of the Criminal Code violated section 11 (d) of the Charter, the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. The Court found that the numerical disparity between the Crown's and the accused's right to challenge jurors gave an appearance of unfairness or bias against the accused.
135. In R. v. Généreux, the Supreme Court of Canada found that the military system of justice at the time of the accused's trial infringed the right to trial by an independent and impartial tribunal guaranteed by section 11 (d) of the Charter. The Court found that the essential conditions of judicial independence were not met. The main factors affecting the Court's decision included: the insufficient security of tenure of the military judge (judge advocate); the appointment of judges by a member of the executive of the military (Judge Advocate General) rather than by an independent and impartial judicial officer; and the lack of sufficient financial security of the members of the General Court Martial.
136. In 1992, the Criminal Code was amended to provide that the prosecution and the defence in a criminal jury trial would have an equal number of peremptory challenges. This change was made to enhance the fairness of the jury-selection process consistent with the reasoning in R. v. Bain.
137. Amendments to the National Defence Act and its regulations have reinforced the institutional independence and impartiality of the General Court Martial through greater guarantees of security of tenure and financial security.
Press exclusion and publicity bans
138. In Dagenais v. CBC and R. v. S.(T.) (cases decided concurrently in 1994), the Supreme Court of Canada concluded that the right to a fair trial protected by section 11 (d) of the Charter and freedom of expression in section 2 (b) of the Charter are of equal importance under the Charter. It modified the common-law rule concerning publication bans for criminal trials. The new test is as follows: a publication ban should only be ordered when such a ban is necessary to prevent a real and substantial risk to the fairness of the trial, and the salutory effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.
Presumption of innocence
139. In cases surveyed in previous reports by Canada, the Supreme Court has held that the guarantee of the presumption of innocence in section 11 (d) of the Charter requires the prosecution to prove each of the essential elements of a criminal offence beyond a reasonable doubt. There had been uncertainty as to whether a reversal of the burden of proof of a defence infringes section 11 (d). This issue was resolved in the cases of R. v. Whyte and R. v. Keegstra, so that it is now clear that the distinction between elements of the offence and other aspects of the charge is irrelevant. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted, while a reasonable doubt exists. When that possibility exists, the presumption of innocence is infringed.
140. In R. v. Downey, the Supreme Court of Canada held that the presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt. The Criminal Code provision presuming, in the absence of evidence to the contrary, that a person who lives with a prostitute lives off the avails of prostitution, was unanimously found to contravene the presumption of innocence but was upheld, per minority (4:3), as justifiable under section 1.
Information on the nature of the charge
141. Section 11 (a) of the Charter is framed in terms of the rights of a person upon being charged with an offence. It is, in the context of a criminal investigation, linked chronologically to the rights arising on arrest or detention that are conferred under section 10 of the Charter respecting the provision of the right to counsel and the right to be informed of that right. Jurisprudence under section 10 indicates that, where special circumstances exist (for example, language difficulties indicating a lack of understanding), the police have a special obligation to ensure that the accused understands the information that is being conveyed (R. v. Black). A person who does not understand the right to counsel cannot be expected to assert it (R. v. Evans).
Counsel of choice/funded counsel
142. Section 10 (b) of the Charter guarantees everyone the right on arrest or detention to retain and instruct counsel without delay, and to be informed of that right. There are constitutional obligations that the State must assume to ensure the adequate provision of counsel pursuant to section 10 (b), and these may include the provision of State-funded counsel. As well, while sections 7 and 11 (d) of the Charter do not entrench a right to funded counsel, they do guarantee a right to a fair trial, and funded counsel may be necessary in order to secure that right (Deutsch v. Law Society Legal Aid Fund; R. v. Rowbotham). Access to State-funded legal assistance for impecunious individuals is governed by legislation.
143. The delivery of legal aid services is the responsibility of the provincial governments. The federal Government cannot impose on the provinces a requirement that they provide legal aid. In practice, with the financial support of the federal Government, each of the provinces has implemented comprehensive legal aid programmes.
144. The Government of Canada shares with the provinces and territories the cost of providing free legal advice and representation to indigent persons accused of serious criminal offences. Federal-provincial-territorial cost-sharing agreements set minimum standards for the provision of eligible persons accused of indictable or summary offences, where, upon conviction, imprisonment or the loss of a means of livelihood would likely result. Under the Canada Assistance Plan, the Government of Canada provides financial support to the provinces for their civil legal aid programmes. Provincial programmes normally cover such family matters as separation and divorce, custody and access to children, support obligations and spousal abuse. These plans also include such matters as credit or debt collection, housing, complaints about the police and claims under social benefit programmes.
145. In R. v. Brydges, the Supreme Court of Canada imposed an obligation on the police to inform a detainee of the existence and availability of the applicable systems of duty counsel and legal aid in the jurisdiction to give the detainee a full understanding of the right to retain and instruct counsel (see also paragraph 9 on the Brydges case). Subsequent cases have clarified this ruling and have held that there is no constitutional requirement that provinces establish and maintain a system of 24-hour access to duty counsel (Prosper; Bartle; Pozniak; Matheson; Harper; Cobham). In Prosper, the majority of the Court decided that the State had to delay obtaining evidence if free preliminary legal advice was not immediately available. It is too soon to know what impact this case will have on the provision of legal aid.
146. Many provinces are experiencing increasing demands for legal aid services in a time of general financial restraint. A national review of the state of legal aid is under way, led by provincial and territorial governments. The principal areas under examination are funding, service-delivery models and the determination of the appropriate level of coverage. In addition, provincial legal aid plans are experimenting with innovative and cost-effective ways of providing legal aid services.
Full examination of all witnesses
147. In R. v. Stinchcombe, the Supreme Court of Canada held that section 7 of the Charter gave persons accused of criminal offences the right to full disclosure by the Crown. Full disclosure includes provision of the statements of all persons who have provided relevant information to the authorities. In Stinchcombe, the Court fastened on the "overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence". Full disclosure, thus, is the condition precedent to full and complete access by the defence to all relevant witnesses. The remedies available to an accused, if full disclosure is not provided, range from adjournments to prepare the defence following disclosure to a stay of proceedings.
148. In order to encourage full and candid testimony, section 486 (2.1) of the Criminal Code permits a complainant in a sexual assault case who is under the age of 18 to testify outside the courtroom or behind a screen or device that would prevent a view of the accused. The constitutionality of this provision was upheld in R. v. Levogiannis. The Court reasoned that the limited and discretionary use of a screening device in no way restricts or impairs the ability to cross-examine the complainant and, since it is designed to elicit a full and candid account of the acts complained of, it may be of real assistance in securing a fair trial.
149. Section 715.1 of the Criminal Code allows for the admission of the videotaped testimony of a complainant under the age of 18 with regard to certain listed sexual offences, provided that the complainant, while testifying, adopts the contents of the videotape. In R. v. L.(D.O.), the Supreme Court of Canada unanimously upheld the validity of this provision, finding that it neither offends the principles of fundamental justice nor violates the right to a fair trial. Cross-examination at trial is sufficient to remedy the absence of opportunity to cross-examine at the time of making the initial statements. Possible prejudice is prevented as well by a power in the trial judge to strike out or edit statements, where necessary.
150. In R. v. Osolin, the Supreme Court of Canada found that the trial judge restricted the ability of the accused in a sexual assault trial to cross-examine the complainant on certain medical records, which were placed in evidence on the issue of her competence to testify. Defence counsel sought to cross-examine the victim on a notation in her medical records describing reactions and attitudes that may have had an influence on the accused's behaviour. The Court held that the right to cross-examine is fundamental to providing a fair trial to the accused.
Assistance of an interpreter
151. In Tran v. R., the Supreme Court of Canada made several statements on the scope of section 14 of the Charter: (a) courts have an independent responsibility to ensure that their proceedings are fair and in accordance with the principles of natural justice and, therefore, to protect an accused's right to interpreter assistance, irrespective of whether the right has actually been formally asserted; (b) particularly with the elevation of the right to the level of a constitutional norm, courts should be generous and open-minded when assessing an accused's need for interpreter assistance, without granting such assistance systematically; (c) section 15 (equality rights), section 25 (Aboriginal rights) and section 27 (multicultural heritage) of the Charter also speak to the importance of the right to interpreter assistance in Canadian society (insofar as a multicultural heritage is a multilingual one, it follows that a multicultural society can only be preserved and fostered if those who speak languages other than English and French are given real and substantive access to the criminal justice system); (d) the right to interpreter assistance in the criminal context should be considered a "principle of fundamental justice" within the meaning of section 7 of the Charter; and (e) the standard of interpretation under section 14 is not one of perfection, but one of continuity, precision, impartiality, competency and contemporaneousness.
152. Since 1990, the language-of-trial provisions of the Criminal Code have been in force in all provinces and territories. Those provisions include the right of any accused to have a trial before a judge, a jury and a prosecutor who speak the official language (English or French) of the accused, the right of the accused to have a judgement written in his official language, and the right of the accused, the witnesses and the accused's counsel to be assisted by an interpreter. The Criminal Code also provides, since 1988, that all pre-printed forms prescribed by the Code must be printed in both English and French. Court challenges are currently taking place in different provinces and territories as to the exact scope of those provisions.
153. Under section 15 (1) of the Official Languages Act (in force since 1993), every federal court has a duty to ensure that any witness can be heard in the official language of his or her choice, and that in so being heard the person will not be placed at a disadvantage by not being heard in the other official language. Section 15 (2) of the Act states that every federal court has the duty to ensure, at the request of any party, that facilities are made available for the simultaneous interpretation of proceedings. Section 16 of the Act states that all federal courts and tribunals of Canada, except the Supreme Court of Canada, have the duty to ensure that every judge or other officer who hears proceedings is able to understand the official language(s) chosen by the parties without the assistance of an interpreter.
Protection against self-incrimination
154. In Prosper v. The Queen, one of the cases mentioned in paragraph 145 above dealing with the right to funded counsel, the Supreme Court of Canada noted that the privilege against self-incrimination is a basic tenet of the Canadian criminal justice system and, therefore, a principle of fundamental justice under section 7 of the Charter. The Court asserted that the right to retain and instruct counsel, which is protected by section 10 (b) of the Charter, serves to protect the privilege against self-incrimination.
155. In a series of cases, the Supreme Court of Canada examined the scope of the principle against self-incrimination in greater detail. In R. v. S.(R.J.), the Court held that a person separately charged with an offence was compellable as a witness in the trial of another person charged with the same offence. Evidence which would not have been obtained but for the compelled testimony could be subject to exclusion at any subsequent trial of the charged person who was compellable as a witness.
156. In Crawford v. R., the Supreme Court of Canada held that an accused may cross-examine a co-accused on his or her pre-trial silence for the purpose of impeaching his or her credibility but not for the purpose of incriminating the co-accused. This approach was seen as balancing two competing rights protected by section 7 of the Canadian Charter of Rights and Freedoms: the right to pre-trial silence and the right to make full answer and defence.
157. In B.C. Securities v. Branch, the Supreme Court of Canada upheld the constitutionality of a provision of the Securities Act of British Columbia which permitted directors to be subpoenaed to testify at a public inquiry into the operations of their company. The Court held that testimony and the production of company documents were compellable. Section 13 of the Canadian Charter of Rights and Freedoms protects a witness against the use of any incriminating evidence in future proceedings. As was held in R. v. S.(R.J.), which is discussed in paragraph 155, derivative-sue immunity would be available in subsequent trial for any evidence which could not have been obtained but for the compelled testimony or production. The Court also indicated that judges had a discretion to exempt individuals from testifying at a public inquiry if the predominant purpose for seeking the evidence was to obtain incriminating evidence against them.
158. In R. v. Fitzpatrick, the Supreme Court of Canada held that the principle against self-incrimination is not infringed by the use of statutorily required records in the prosecution of regulatory offences. The statutory scheme required the production of fishing records independent of any investigation. The rationale of protection against unreliable confessions and abuse of power by the State which underlies the principle against self-incrimination is not engaged in the context of a detailed regulatory regime that governs the management and conservation of a fishery by the State and fishermen acting as partners.
Prosecution of juveniles
159. As was noted in Canada's second report, the rights of young persons charged with criminal offences are protected by the Canadian Charter of Rights and Freedoms and the provisions of the Young Offenders Act, federal legislation that governs their treatment within the criminal justice system. Section 3 of the Act outlines the policy of the Government of Canada with respect to young offenders and includes recognition for the special needs of young persons, particularly for guidance and assistance, and indicates that their accountability for their actions may differ from that of adults.
160. The Young Offenders Act applies to youths who are 12 years of age and older but under the age of 18. Youths under age 12 who are involved in criminal activity may be found to be children in need of protection under provincial child welfare or child-protection legislation.
Case law
161. In an effort to address the confusion in case law about the applicability of sentencing principles such as denunciation and deterrence in young-offender sentencing, the Supreme Court of Canada rendered its decision in R. v. J.J.M. The Court acknowledged the existence of a philosophical inconsistency between the various principles governing sentencing set out in section 3 of the Act. The Court held that this ambivalence was inevitable in order to provide the required degree of flexibility in fashioning dispositions aimed at rehabilitating offenders. Of particular significance was the Court's assertion that rehabilitation is the ultimate aim of youth sentencing.
162. There have been three main legislative developments affecting young offenders in the period covered by this report. An Act to Amend the Criminal Code (Bill C-12) was proclaimed in force on 15 May 1992. The legislative provisions introduced a number of changes, chief of which pertained to modifications to the provisions relating to transfer to adult court. A new subsection 16 (1.1) was introduced, which clarified that, if the court came to the conclusion that public protection and the offender's rehabilitation could not be reconciled in the youth court system, then the former principle was paramount and necessitated a transfer.
163. Another significant change introduced by the former Bill C-12 was a change in the penalty structure for murder offences in the youth-court system. The penalty was changed from a maximum of three years closed custody, to a sentence comprised of two parts. The custodial portion of the sentence could be for a period of up to three years. This was then to be followed by a period of conditional supervision in the community for a maximum period of two years less one day. In situations where the youth court was satisfied that there were reasonable grounds to believe that the young person was likely to cause death or serious harm to another person if released, it could order the person to remain in custody for the balance of the sentence.
164. A further significant change introduced in 1992 was a modification to the Criminal Code through the enactment of section 742.1. That section provides that persons under age 18 who have been convicted of first- or second-degree murder in adult court are eligible for parole, after they have served a term of between 5 and 10 years, as specified by the sentencing court.
165. In 1994, the Minister of Justice tabled Bill C-37, a further Act to amend the Young Offenders Act in the House of Commons. Bill C-37 proposes to modify the statement of purposes and principles in section 3 of the Act by clarifying that public protection is one of the primary objectives of the youth-justice system. Another proposed amendment to section 3 acknowledges that crime prevention is essential to the long-term protection of society and requires addressing the underlying causes of crime by young persons and developing multidisciplinary approaches to identifying and effectively responding to children and young people at risk.
166. Bill C-37 will require young persons aged 16 or 17 years, who have been charged with murder, attempted murder, manslaughter or aggravated sexual assault, to apply to remain in youth court. If they can show that protection of the public and rehabilitation can be achieved by their remaining in the young offender system, the court must order that they be deal with in youth court. If the two objectives cannot be met in youth court, a youth must be transferred to adult court.
167. Bill C-37 proposes increases to the sentences for murder under the Young Offenders Act. The maximum sentence for first-degree murder will be increased to 10 years with a maximum of 6 years to be spent in custody and the remaining 4 years under supervision in the community. For second-degree murder, the maximum sentences will be 7 years with a maximum of 4 years to be spent in custody. In exceptional cases, it will be possible for a youth to spend the total period of the sentence in custody.
168. Bill C-37 contains measures to facilitate the sharing of information. It will be possible for professionals to share information for the purposes of enforcing court orders and of securing the safety of individuals. Information-sharing with select members of the public will be possible only by court order and where there is a risk to public safety.
169. Bill C-37 proposes to restrict the use of custody as a sentencing measure and proposes changes to section 24 of the Act, which governs the imposition of custodial dispositions. The suggested section 24 (1.1) prohibits the use of custody as a substitute for appropriate child protection, health and other social measures. It also indicates that a young person who commits an offence that does not involve serious personal injury should be held accountable to the victim and to society through non-custodial dispositions, whenever appropriate. A final principle in the new section restricts the use of custody to situations where all available alternatives to custody that are reasonable in the circumstances have been considered.
170. In addition to Bill C-37, further changes to the Young Offenders Act may result from a review of the Act conducted by a federal-provincial-territorial Task Force of Senior Officials and an upcoming parliamentary review. This second phase of legislative review will consider such issues as the age jurisdiction of the Act; the causes of youth crime and how youth crime can best be prevented; and the relationship between the provincial child welfare and child protection systems, and the youth justice system. In the course of this review, a parliamentary committee will seek the views of concerned citizens, victims' groups, professionals working with children and youth, academics and others interested in these important policy matters.
171. Public opinion has been divided on the effectiveness of the Young Offenders Act. In response to media coverage of violent crimes committed by young persons, a significant percentage of the Canadian public has complained recently that the penalty structure of the Act is insufficiently broad to deal adequately with the more serious criminal offences. When asked in opinion polls, however, the public seems to favour rehabilitation for young people. The tension between the goal of rehabilitation of young offenders and the preservation of public confidence in the youth-justice system will be an important consideration for the Phase II review noted above.
Rights on miscarriage of justice
172. Compensation for wrongful conviction and miscarriage of justice is largely dealt with by the exercise of executive discretion. Miscarriage of justice is potentially actionable under the Canadian law of malicious prosecution or breach of statutory duty.
173. Canada's second report mentioned guidelines governing the compensation of persons wrongfully convicted and imprisoned. Those guidelines were adopted by the federal and provincial governments in 1988 and are still applicable. Compensation has been granted in two provincial cases since the guidelines were adopted (Donald Marshall; Richard Norris).
Double jeopardy
174. In R. v. Van Rassel, the accused, a former RCMP officer, could not rely on section 11 (h) (the Charter's double jeopardy provision) on the basis of acquittals in the United States of charges arising out of disclosure of confidential information gained when he was involved in a joint investigation with United States officials. The United States charges and the Canadian charges, also based on disclosure, were different, because they were based on duties of a different kind. These were two aspects to the accused's conduct: first, wrongdoing as a Canadian official with a special duty to the Canadian public and, second, wrongdoing as an American official temporarily subject to American law. The accused was required to account for his conduct to the Canadian public.
175. In R. v. Shubley, the Supreme Court of Canada revisited the issue decided previously in Wigglesworth, namely the relationship between disciplinary proceedings and subsequent criminal trials for purposes of the Charter's double jeopardy protection. In this case, the accused was charged with a criminal assault after being found guilty of internal prison disciplinary proceedings for the same incident. No violation of section 11 (h) was found to exist on the basis of the principles enunciated in Wigglesworth.
176. As discussed in Canada's second report, section 11 (g) of the Charter protects persons from retroactive penal law, unless the act or omission was, at the time, a crime under Canadian or international law or was criminal according to the principles of law recognized by the community of nations. In addition, section 11 (i) provides that persons found guilty of an offence are entitled to benefit from a lesser punishment, if such becomes law before sentencing.
177. In R. v. Finta, the Supreme Court of Canada upheld the constitutionality of provisions of the Criminal Code governing the prosecution of war criminals in a case involving a prosecution for actions outside Canada during the Second World War. Subsection 7 (3.74) of the Code, which removed a defence of obedience to de facto law, was found not to violate the Charter. The war crimes and crimes against humanity provisions of the Code were also found not to violate section 11 (g) of the Charter (the protection against retroactive penal law).
178. In R. v. Salituro, the Supreme Court of Canada changed the common-law rule prohibiting spouses of accused persons from being witnesses for the prosecution to permit separated spouses to give evidence. The Court stated that it had a duty to ensure that the common law develops in a manner compatible with Charter values, and that the rule in question was not compatible with the importance now given sexual equality.
179. Section 8 of the Charter guarantees the right to be secure against unreasonable search and seizure. It has been interpreted by the courts to provide protection against unjustified State intrusions on the reasonable expectations of an individual to privacy (R. v. Simmons). Relevant considerations include the purpose of the search or seizure, and the extent of the intrusion on privacy. Thus, for example, it is more difficult to justify a search or seizure in the regulatory and administrative context (e.g. inspections) than in the criminal-law context. Other relevant considerations are whether the search is of the dwelling place of an individual (R. v. Silveira), or the seizure relates to matters of a personal or confidential nature (R. v. Plante). Section 8 also covers the acquisition of confidential information about a person in a manner analogous to a search and seizure (Plante).
180. In R. v. Dersch, the Supreme Court held that it was contrary to section 8 for the police to obtain information about the results of a blood test from a hospital without the patient's consent. In R. v. Baron, the Supreme Court of Canada concluded that section 231.3 of the Income Tax Act, which stated that the judge "shall issue" a warrant, if certain conditions were met, breached section 8 of the Charter, because its mandatory language did not permit the courts to take into account all relevant factors (this provision was subsequently amended to use the phrase "may issue").
181. In R. v. Plante, the Supreme Court held that conducting an on-line search of public utility records stored in a computer that was not privately maintained to obtain information about the electricity consumption of the accused relevant to a charge of growing marijuana in a basement, did not involve a breach of section 8. See also Conway, paragraph 99.
182. In R. v. O'Connor, in the context of an application in a sexual assault case to obtain the sexual assault counselling and medical records of complainants, the Supreme Court of Canada said that there was a two-stage procedure in determining whether production should be ordered. First, the applicant must establish that the documents are likely to be relevant to his or her case. If so, the documents should be produced to the court. Second, the court must review the documents to determine whether they should be produced to the accused, taking into account a number of factors, including the right of the accused to make a full answer and defence and that of the complainant to privacy.
183. In terms of section 1 (reasonable limits) of the Charter, the courts have accepted respect for privacy as an objective of sufficient importance for purposes of justifying limits on Charter rights and freedoms. For example, in Ontario (Attorney General) v. Dieleman, the Ontario Court (General Division) concluded that an interlocutory injunction prohibiting anti-abortion activity near abortion clinics and the residences and offices of health care providers was a reasonable limit on free expression because of the need to protect, inter alia, the privacy of health care providers and their families. The Court made specific reference to article 18 (see paragraph 12).
184. A concern for privacy was manifested in a series of Supreme Court of Canada cases dealing with electronic surveillance, which resulted in the invalidation of several aspects of relevant provisions of the Criminal Code (see paragraph 22 of Canada's third report). In 1993, amendments to the Criminal Code were enacted to restore to law enforcement officials their ability to use electronic surveillance methods in a manner consistent with the Charter. The amendments permit electronic surveillance where the police or other agents of the State are in potentially dangerous situations; provide judges with the authority to permit surveillance where there is consent of one of the participants or where serious crimes are involved; and authorize Justices of the Peace to grant warrants for surveillance in limited circumstances. They also extend protection to cellular phones, and make provision for video surveillance and the use of electronic tracking devices.
185. The use of Social Insurance Numbers (SIN) in Canada is restricted to specific Acts of Parliament, regulations and related programmes. All new uses of the SIN for administrative purposes must be legislated. The right to be given access to personal infor