Section Eleven of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution
's Charter of Rights
that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by the state for public offences. There are nine enumerated rights protected in section 11.
The right of a person charged with an offence to be informed of the offence originated in section 510 of the Criminal Code of Canada
as well as legal tradition. Some courts have used section 510 to help read section 11(a), concluding that the right allows for a person to be "reasonable informed" of the charge; thus it does not matter if a summons
simply summarizes a charge.
In R. v. Delaronde (1997), the Supreme Court of Canada
found section 11 (a) is meant not only to guarantee a fair trial but also to serve as an economic right. A person must be informed of charges quickly because they will then have to deal with their career and family life in light of the charges. Thus, those who suffer economically because of delayed information of charges have had their rights under section 11(a) infringed, and they may receive a remedy under section 24 of the Charter
.
Section 11(b) can be taken to provide a right to a speedy trial
. The criteria by which the court will consider whether the rights of an accused under this provision have been infringed were set out in R. v. Askov
(1990). Later, in R. v. Finta
(1994), the Supreme Court clarified that the period of "unreasonable delay" begins at the time the charge is laid. This was in response to a case in which charges were laid 45 years after the alleged offences occurred; and that this was suggested to be an unreasonable delay. Reasonableness depends, in part, on the amount of investigative work that is involved, the number of interested parties and their locations, and/or the complexity of the case. Reasonableness also relates to local court resources and/or how they compare to other jurisdictions. Other elements in determining reasonableness of delay could include delays by either the Crown attorney or defense counsel, or even the Court itself.
This provides a right against self-incrimination
. Another right against self-incrimination can be found in section 13 of the Charter
.
This right has generated some case law, as courts have struck down reverse onus
clauses as violating the presumption of innocence
. This first occurred in R. v. Oakes
(1986) in respect to the Narcotics Control Act. This was also the case in which the Court developed the primary test for measuring rights limitations under section 1
of the Charter. The Court found having a reverse onus clause was not rational in fighting narcotics traffic since one could not assume a person found with narcotics means to traffic it. In R. v. Stone
, the question of automatism
was considered, with the Court deciding that while shifting the burden of proof to the defendant was a violation of section 11, it could be justified under section 1 because criminal law presumes willing actions.
The reference to a fair hearing allows one a right to "full answer and defence", a right also based in section 7
of the Charter ("fundamental justice
"). This has led to a controversial string of decisions surrounding the rape shield law
, starting with R. v. Seaboyer
(1991) and ending with R. v. Mills (1999)
.
The reference to an independent and impartial tribunal has also been taken as granting a measure of judicial independence
to lower-court judges specializing in criminal law, judicial independence previously being a right held only by superior courts under the Constitution Act, 1867
. In the case Valente v. The Queen
(1985), judicial independence under section 11 was held to be limited. Although it would include financial security, security of tenure and some administrative independence, the Court found the standards enjoyed by higher-level judges was too high for the many tribunals covered by section 11(d). In the Provincial Judges Reference
(1997) expectations for judicial independence were heightened, with reference made to the preamble
of the Constitution Act, 1867, which was said to imply judicial independence was an unwritten constitutional value applying to all judges in Canada. The requirement of an independent and impartial tribunal applies also to juries
. Constitutional scholar Peter Hogg
has written that jury selection
under the Criminal Code would undoubtedly create an independent tribunal. However, he points to R. v. Bain (1992) in which the impartiality of the jury was questioned, since the Crown had more say in selection.
The right to reasonable bail
was examined in R. v. Morales
(1992) when a person was denied bail under section 515 of the Criminal Code, which allowed detention where it "is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will ... commit a criminal offence or interfere with the administration of justice". Chief Justice Lamer, for the majority of the Supreme Court, found that the "public interest" component violated the accused right not to be denied reasonable bail under section 11(e) of the Charter and could not be saved under section 1. He ordered the words "in the public interest" be declared of no force or effect. Lamer examined the phrase "in the public interest" and found that it was vague and imprecise, and so could not be used to frame a legal debate that could produce a structured rule.
The right to a jury is protected by section 11(f). The Supreme Court considered this right in R. v. Pan; R. v. Sawyer
(2001), which saw a challenge to the constitutionality of section 649 of the Criminal Code, which prohibited the use of evidence regarding the deliberation of the jury. The Supreme Court found the erosion of the secrecy of the jury would have a negative impact on the ability of a jury to decide a case and would affect individual's right to jury trial under section 11(f) of the Charter. It is required under the principles of fundamental justice to have an impartial jury.
This right prohibits ex post facto law
, meaning that it requires that in order for a person's action or lack thereof to be considered a crime, the action must have already been criminalized before the person committed it. Still, in 1991 the Supreme Court ruled in R. v. Furtney that section 11(g) does not require that all people must be aware of what is criminal and what is not. International law
is recognized by section 11(g), and the Court acknowledged the federal government is not obligated to make sure all Canadians are aware of what international law says.
This prohibits double jeopardy
. But often this prohibition only applies after the trial is finally concluded - in contrast to the laws of the United States
, Canadian law allows the prosecution to appeal from an acquittal. If the acquittal is thrown out, the new trial is not considered to be double jeopardy because the first trial and its judgement would have been annulled.
Standards for section 11(h) were set in the Supreme Court case R. v. Wigglesworth
(1987). The Court noted that section 11(h) only applies to criminal matters and so both charges must be criminal in nature to invoke the double jeopardy defence. The Court then proposed a two part test to determine whether the first proceedings was in relation to a criminal matters and therefore invoking section 11(h). First, it must be determined whether the matter is of a "public nature, intended to promote public order and welfare within a public sphere of activity". Second, it must be determined whether the matter involves "the imposition of true penal consequences".
A double jeopardy case came before the Supreme Court in Canada v. Schmidt
, in which it was argued extradition
to face a state charge of child-stealing would violate section 11(h) since the accused had already been acquitted of the allegedly similar federal kidnapping charge. (Even if these charges could be considered similar, this would not violate the double jeopardy clause in the Fifth Amendment to the United States Constitution
, as the states are not bound by this amendment). Justice La Forest wrote for the majority, "I do not think our constitutional standards can be imposed on other countries." The majority found that the charge would be in accordance with "traditional procedures" in Ohio. Finally, it found that "It is interesting that, as we saw, the United States Supreme Court has repeatedly held that successive prosecutions at the federal and state level do not automatically offend against the due process
clause, the spirit and content of which bears some resemblance to s. 7 of the Charter, although the courts would act to prevent oppressive behaviour."
This right states that if a person committed a crime whose punishment has become lighter or harsher by the time a judge delivers a sentence, the person should receive the lighter punishment. In some cases, the Court of Appeal for Ontario and Alberta Court of Appeal have ruled that section 11(i) only applies to the sentencing given by a trial judge. If the case is appealed and the punishment is made less severe, a person does not have a right to be given the lesser punishment from an appellate judge.
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
's Charter of Rights
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by the state for public offences. There are nine enumerated rights protected in section 11.
Right to be informed of the offence
Section 11(a) provides thatThe right of a person charged with an offence to be informed of the offence originated in section 510 of the Criminal Code of Canada
Criminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
as well as legal tradition. Some courts have used section 510 to help read section 11(a), concluding that the right allows for a person to be "reasonable informed" of the charge; thus it does not matter if a summons
Summons
Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
simply summarizes a charge.
In R. v. Delaronde (1997), the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
found section 11 (a) is meant not only to guarantee a fair trial but also to serve as an economic right. A person must be informed of charges quickly because they will then have to deal with their career and family life in light of the charges. Thus, those who suffer economically because of delayed information of charges have had their rights under section 11(a) infringed, and they may receive a remedy under section 24 of the Charter
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
.
Right to be tried within a reasonable time
Section 11(b) provides thatSection 11(b) can be taken to provide a right to a speedy trial
Speedy trial
Speedy trial refers to one of the rights guaranteed by the United States Constitution to defendants in criminal proceedings. The right to a speedy trial, guaranteed by the Sixth Amendment, is intended to ensure that defendants are not subjected to unreasonably lengthy incarceration prior to a fair...
. The criteria by which the court will consider whether the rights of an accused under this provision have been infringed were set out in R. v. Askov
R. v. Askov
Askov v. R., [1990] 2 S.C.R. 1199, is a 1990 appeal heard before the Supreme Court of Canada which established the criteria and standards by which Canadian courts judge whether an accused's right under the Canadian Charter of Rights and Freedoms, Section 11 "to be tried within a reasonable time"...
(1990). Later, in R. v. Finta
R. v. Finta
R. v. Finta, [1994] 1 S.C.R. 701 is a landmark case decided by the Supreme Court of Canada. The Court found that a 45-year delay before charging an individual under the crimes against humanity provisions of the Criminal Code of Canada does not fall within the meaning of "unreasonable delay" under...
(1994), the Supreme Court clarified that the period of "unreasonable delay" begins at the time the charge is laid. This was in response to a case in which charges were laid 45 years after the alleged offences occurred; and that this was suggested to be an unreasonable delay. Reasonableness depends, in part, on the amount of investigative work that is involved, the number of interested parties and their locations, and/or the complexity of the case. Reasonableness also relates to local court resources and/or how they compare to other jurisdictions. Other elements in determining reasonableness of delay could include delays by either the Crown attorney or defense counsel, or even the Court itself.
Right not to be compelled to be a witness
Section 11(c) provides thatThis provides a right against self-incrimination
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
. Another right against self-incrimination can be found in section 13 of the Charter
Section Thirteen of the Canadian Charter of Rights and Freedoms
Section Thirteen of the Canadian Charter of Rights and Freedoms is a section of the Charter which, along with section 11 , specifies rights regarding self-incrimination.It reads:...
.
Right to be presumed innocent
Section 11(d) provides that:This right has generated some case law, as courts have struck down reverse onus
Reverse onus
A reverse onus clause is a provision within a statute that shifts the burden of proof on to the individual specified to disprove an element of the information. Typically, this provision concerns a shift in burden onto a defendant in either a criminal offence or tort claim...
clauses as violating the presumption of innocence
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
. This first occurred in R. v. Oakes
R. v. Oakes
R. v. Oakes [1986] 1 S.C.R. 103 is a case decided by the Supreme Court of Canada which established the famous Oakes test, an analysis of the limitations clause of the Canadian Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms through legislation if it can be...
(1986) in respect to the Narcotics Control Act. This was also the case in which the Court developed the primary test for measuring rights limitations under section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
of the Charter. The Court found having a reverse onus clause was not rational in fighting narcotics traffic since one could not assume a person found with narcotics means to traffic it. In R. v. Stone
R. v. Stone
R. v. Stone, [1999] 2 S.C.R. 290 is a leading Supreme Court of Canada decision on the use of the defence of automatism in a criminal trial.-Background:...
, the question of automatism
Automatism (law)
-Definition:Automatism is a rarely used criminal defence. It is one of the mental condition defences that relate to the mental state of the defendant. Automatism can be seen variously as lack of voluntariness, lack of culpability or excuse...
was considered, with the Court deciding that while shifting the burden of proof to the defendant was a violation of section 11, it could be justified under section 1 because criminal law presumes willing actions.
The reference to a fair hearing allows one a right to "full answer and defence", a right also based in section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
of the Charter ("fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
"). This has led to a controversial string of decisions surrounding the rape shield law
Rape shield law
A rape shield law is a law that limits a defendant's ability to cross-examine rape complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim.-In Canada:...
, starting with R. v. Seaboyer
R. v. Seaboyer
R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577 is a leading Supreme Court of Canada decision where the Court struck-down a rape-shield provision of the Criminal Code of Canada as it violated the right to "full answer and defence" under sections 7 and 11 of the Canadian Charter of Rights and...
(1991) and ending with R. v. Mills (1999)
R. v. Mills (1999)
R. v. Mills, [1999] 3 S.C.R. 668 is a leading Supreme Court of Canada decision where the Court upheld the newly enacted rape shield law when challenged as a violation to section 7 and 11 of the Canadian Charter of Rights and Freedoms. The rape shield law was the second of its type, the first having...
.
The reference to an independent and impartial tribunal has also been taken as granting a measure of judicial independence
Judicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
to lower-court judges specializing in criminal law, judicial independence previously being a right held only by superior courts under the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
. In the case Valente v. The Queen
Valente v. The Queen
Valente v. The Queen, [1985] 2 S.C.R. 673 is a leading Supreme Court of Canada decision on protection of judicial independence under section 11 of the Canadian Charter of Rights and Freedoms.-Background:...
(1985), judicial independence under section 11 was held to be limited. Although it would include financial security, security of tenure and some administrative independence, the Court found the standards enjoyed by higher-level judges was too high for the many tribunals covered by section 11(d). In the Provincial Judges Reference
Provincial Judges Reference
The Provincial Judges Reference [1997] 3 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of provincial court judges...
(1997) expectations for judicial independence were heightened, with reference made to the preamble
Preamble
A preamble is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute...
of the Constitution Act, 1867, which was said to imply judicial independence was an unwritten constitutional value applying to all judges in Canada. The requirement of an independent and impartial tribunal applies also to juries
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
. Constitutional scholar Peter Hogg
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
has written that jury selection
Jury selection
Jury selection are many methods used to choose the people who will serve on a trial jury. The jury pool is first selected from among the community using a reasonably random method. The prospective jurors are then questioned in court by the judge and/or attorneys...
under the Criminal Code would undoubtedly create an independent tribunal. However, he points to R. v. Bain (1992) in which the impartiality of the jury was questioned, since the Crown had more say in selection.
Right not to be denied reasonable bail
Section 11(e) provides thatThe right to reasonable bail
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
was examined in R. v. Morales
R. v. Morales
R. v. Morales, [1992] 3 S.C.R. 711, is a leading case decided by the Supreme Court of Canada. The Court found that the "public interest" basis for pre-trial detention under section 515 of the Criminal Code violated section 11 of the Canadian Charter of Rights and Freedoms, the right not to be...
(1992) when a person was denied bail under section 515 of the Criminal Code, which allowed detention where it "is necessary in the public interest or for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will ... commit a criminal offence or interfere with the administration of justice". Chief Justice Lamer, for the majority of the Supreme Court, found that the "public interest" component violated the accused right not to be denied reasonable bail under section 11(e) of the Charter and could not be saved under section 1. He ordered the words "in the public interest" be declared of no force or effect. Lamer examined the phrase "in the public interest" and found that it was vague and imprecise, and so could not be used to frame a legal debate that could produce a structured rule.
Right to trial by jury
Section 11(f) provides thatThe right to a jury is protected by section 11(f). The Supreme Court considered this right in R. v. Pan; R. v. Sawyer
R. v. Pan; R. v. Sawyer
R. v. Pan; R. v. Sawyer, [2001] 2 S.C.R. 344 is a leading Supreme Court of Canada decision on the criminal jury trial system. The Court held that rules against admitting evidence indicating the decision-making process of a jury were constitutional....
(2001), which saw a challenge to the constitutionality of section 649 of the Criminal Code, which prohibited the use of evidence regarding the deliberation of the jury. The Supreme Court found the erosion of the secrecy of the jury would have a negative impact on the ability of a jury to decide a case and would affect individual's right to jury trial under section 11(f) of the Charter. It is required under the principles of fundamental justice to have an impartial jury.
Right not to be found guilty unless action constituted an offence
Section 11(g) provides thatThis right prohibits ex post facto law
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
, meaning that it requires that in order for a person's action or lack thereof to be considered a crime, the action must have already been criminalized before the person committed it. Still, in 1991 the Supreme Court ruled in R. v. Furtney that section 11(g) does not require that all people must be aware of what is criminal and what is not. International law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
is recognized by section 11(g), and the Court acknowledged the federal government is not obligated to make sure all Canadians are aware of what international law says.
Right not to be tried again
Section 11(h) provides thatThis prohibits double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
. But often this prohibition only applies after the trial is finally concluded - in contrast to the laws of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, Canadian law allows the prosecution to appeal from an acquittal. If the acquittal is thrown out, the new trial is not considered to be double jeopardy because the first trial and its judgement would have been annulled.
Standards for section 11(h) were set in the Supreme Court case R. v. Wigglesworth
R. v. Wigglesworth
R. v. Wigglesworth, [1987] 2 S.C.R. 541 is a leading Supreme Court of Canada decision on the constitutional right against double jeopardy under Section 11 of the Canadian Charter of Rights and Freedoms...
(1987). The Court noted that section 11(h) only applies to criminal matters and so both charges must be criminal in nature to invoke the double jeopardy defence. The Court then proposed a two part test to determine whether the first proceedings was in relation to a criminal matters and therefore invoking section 11(h). First, it must be determined whether the matter is of a "public nature, intended to promote public order and welfare within a public sphere of activity". Second, it must be determined whether the matter involves "the imposition of true penal consequences".
A double jeopardy case came before the Supreme Court in Canada v. Schmidt
Canada v. Schmidt
Canada v. Schmidt, [1987] 1 S.C.R. 500, is a decision by the Supreme Court of Canada on the applicability of fundamental justice under the Canadian Charter of Rights and Freedoms on extradition...
, in which it was argued extradition
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
to face a state charge of child-stealing would violate section 11(h) since the accused had already been acquitted of the allegedly similar federal kidnapping charge. (Even if these charges could be considered similar, this would not violate the double jeopardy clause in the Fifth Amendment to the United States Constitution
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
, as the states are not bound by this amendment). Justice La Forest wrote for the majority, "I do not think our constitutional standards can be imposed on other countries." The majority found that the charge would be in accordance with "traditional procedures" in Ohio. Finally, it found that "It is interesting that, as we saw, the United States Supreme Court has repeatedly held that successive prosecutions at the federal and state level do not automatically offend against the due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
clause, the spirit and content of which bears some resemblance to s. 7 of the Charter, although the courts would act to prevent oppressive behaviour."
Right to lesser punishment
Section 11(i) provides thatThis right states that if a person committed a crime whose punishment has become lighter or harsher by the time a judge delivers a sentence, the person should receive the lighter punishment. In some cases, the Court of Appeal for Ontario and Alberta Court of Appeal have ruled that section 11(i) only applies to the sentencing given by a trial judge. If the case is appealed and the punishment is made less severe, a person does not have a right to be given the lesser punishment from an appellate judge.
External links
- canlii section 11 digest
- Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter in over 20 languages