Originally published: December 2013
Assessing the Charter: Not for Yesterday or Today
The Charter of Rights and Freedoms (“the Charter”) has been an integral part of Canadian life, changing the course of Canada, particularly in the area of criminal law by ensuring a sound mechanism for due process exists. The departure point of this paper is to determine whether the Charter had a positive impact on the criminal justice system or whether it has been a failure; but this departure point must go deeper. Assessments are normally done in a historical manner, but given the significance of the Charter, an analysis that limits timing and contextual scope is unfair. Given the Charter’s significance, a strictly historical analysis may result in a skewed analysis.
Indeed, it may very well be that the Charter’s impacts in the first fifteen years were positive; the next fifteen years up for debate; and the following fifteen ending up as a disaster. Inasmuch, any fair and reasonable assessment must also make the attempt to judge the Charter’s future applicability. The reason for this is simple: the Charter is not going anywhere, effectively making it part of our future’s history, continuing to impact the criminal justice system in Canada for years to come.
Assessing the Charter: for Tomorrow
The reader may begin to question the validity of this departure point as considers hypotheses and “best guesses” of the future. But there are plenty of indicators to demonstrate significant contextual change that will put pressures on both the Charter and the criminal justice system. There are also other reasons. Canada, along with the rest of the world, is in a state of: uncertainty, change, and flux and these realities will define us on a go-forward basis possibly creating a perfect storm for the Charter to clash not only with our: principles, values, and societal contexts, but to clash with itself.
There is another very practical reason for this departure point: many legal scholars, far better versed on the subject matter than this writer, have performed excellent assessments from a historical perspective. Therefore, this paper’s purpose is to offer a potentially different perspective by presenting a series of contextual questions we will face. Simply from the prism of jurisprudence, this writer cannot offer the insight that these legal scholars previously have. But, respectfully, this writer can fill in some contextual gaps that are often missed.
Therefore, this assessment is not static and should not be viewed strictly from the prism of jurisprudence, as, in the humble opinion of the writer, the assessment would both disingenuous and naïve. The very nature of the Charter is to be long-lasting and far-reaching; so must be its assessment. For all the well-meaning benefits of entrenchment in the Constitution, this decision placed difficult restraints on lawmakers and the courts, meaning that the Charter will have less applicability, but more relevance (including controversy), to the Canadian criminal justice system in the future.
The World Grew Up, Did the Charter?…Can It?
The Charter codified principles and values that may have changing meanings over time. Though we would like to believe these principles and values are timeless and universal, some, as a function of cultural clashes and contextual changes, are not. Canada and the world are not the same as they were in 1982 and a shift in attitudes and values, both at home and abroad, will continue. Additionally, the Charter has moved us down the road of a rights-based society. Indeed, many times we may feel that everything is “a right” and paradoxically, we have self-imposed restraints for the fear of violating somebody else’s rights, whether these restraints are justified or not. This shift has not only made fundamental rights, such as gender equality and religion, clash (Hopper, 2014), but has also expanded the “grey area” of criminal conduct.
From a contextual perspective, the greatest challenges we face are the two driving forces of the last 30 years: globalization and technology (items sometimes missed, or under emphasized, in Charter assessments, particularly as they will continue to redefine our way of life). Assessing impact on the criminal justice system without taking into consideration these driving forces is short-sighted as they have changed: worldviews, societal behaviours, attitudes, and expectations. They have also changed the nature of criminal behaviour. Thefts, abuse, harassment, etc., have stayed constant in principle, but their execution and manifestation in today’s society has changed; in other words: the world in which the Charter was drafted is gone. We no longer have the luxury of time and it would be disingenuous to assess the Charter in any other way (and in defence of the original drafters, foreseeing the exponential changes we have seen in 30 years, while not impossible, were certainly difficult).
Catching Up to 1982
“Has everything been settled?” (Stribopoulos, 2006) as some ask? The ushering in of the Charter significantly impacted criminal law in Canada, effectively changing how crimes are: investigated, prosecuted, practiced, and even how society values due process (Rosenberg, 2009). In essence, the Charter placed more emphasis on due process than controlling behaviour and entrenchment ensured that the Charter was for all of Canada, something that the Bill of Rights was simply incapable of, being just another statute applicable to federal legal jurisdiction.
In the area of policing, it completely changed how investigative procedures were handled. The Charter’s impact on policing, still widely debated and often a source of divide, includes views that the Charter is an impediment; others believe it curtailed the widespread abuse and authority law enforcement demonstrated through the 1970s. Indeed, the Charter was successful in curtailing many worrisome events, such as: writs of assistance and admission of illegally obtained evidence (Roach, A Charter Reality Check: How Relevant Is the Charter to the Justness of Our Criminal Justice System?, 2008) or adding proportionality in its handling of felony murder.[1] It limited the ability of law enforcement to question suspects in ways deemed unethical, or using tactics, such physical and psychological advantages to compel self-incrimination or false confessions (Dufraimont, 2012). An extremely brief assessment suggests that the Charter had many positive impacts in terms of: individual rights, due process, and proportionality. But will positive impacts stand the test of time?
We Caught Up to 1982…Are We Stuck In It?
Rightly or wrongly, entrenchment of the Charter is a weight that cannot be easily lifted. The reasons are simple. First, the amending formula of the Constitution makes it virtually impossible to change. Next – and possibly more important in practical terms – any ruling political party that values its longevity in power will not dare the political risk of a Charter amendment. Calls for change from the opposition on any major political matter are easy, but once in power, ruling parties have normally suffer political wrath trying to institute significant changes.
Inasmuch, we have been left with a Parliament that has taken a secondary role to the Charter, even if some argue that the Charter would not protect us from a government that wishes to push a “crime agenda” (Roach, 2012). Parliament – out of political self-interest that transcends the entire political spectrum – is simply scared to touch the Charter. Parliament has become reactionary and differential (Penney, Police Questioning in the Charter Era: Adjudicative versus Regulatory Rule-making and the Problem of False Confessions, 2012), missing opportunities to make the criminal system more relevant to the times. This is disheartening as Parliament is in the best position to make speedy changes to a criminal justice system (though, the best position to make changes does not mean the best decisions are made).
The Canadian argument during the Charter era is that courts act as the check-and-balance our system previously lacked, ensuring we do not return back to the times of the 1970s where there where law enforcement acted in a relatively unchecked manner and were we did not consider proportionality. But there are two contextual problems, today, if the courts act as the check-and-balance:
- they move slowly; and
- respectfully, they lack the skill set to make contextually sound decisions, unfortunately resulting in a form of judicial activism (Schwartz, 2012).
In defence of the courts (and parliamentarians and law enforcement), contextually sound decisions are becoming more difficult. They are all victim of benign or deliberate decisions that: tie the government’s hands, end up with statues that attempt to circumvent elements of the Charter (such section 8 privacy protections slowly eroding away due to a series of new search provisions enacted by Parliament (Penney, Rondinelli, & Stribopoulos, 2011)), or mishandle investigations.
The reality of the 21st Century is speed and our executive and judicial branches are simply not designed for speed or adaptability. As Justice Abella stated in 2001, “the ‘truth’ was obvious” in the 1950s (Cairns Way, 2012); nearly 15 years later, it is less obvious than ever. The contextual challenges we face diminish the relatively positive impacts of the Charter, posing the practical challenge that the judiciary and executive branches face: should law be ahead, or behind, the times?
The Unaccounted For Variable: Technology
The Charter’s cracks show with its handling of technology. Unfortunately, past cases and rulings cannot capture the impact of today’s technology. A wire-tap from 1978 is very different from one today. Proliferation of ability and technology have changed “the way business works” but we are still stuck in a “business as usual” mindset. Investigative capabilities have completely altered, primarily because we digitize virtually everything. Most of us do it unknowingly. Even more of us do not realize that everything is stored on some database somewhere (if not indefinitely, at least for a set period of time). In the past, police officers would have to “re-create” a crime; today, they request a copy of all your text messages from the service provider. It is not business as usual and technological realities impact: search and seizure, surveillance, proportionality, and even detention.
The nefarious recognize deeper technology penetration in society and exploit it. The malicious have always worked “outside the box” becoming more creative in their abuse. Technology gives the wicked new tools to conduct illicit activities. Technology has done something horribly dangerous: given the individual an arsenal that was once reserved for the state. This reality completely changes the complexities of individual rights versus the collective good.
Mostly, Supreme Court of Canada rulings have erred towards protecting individual rights, but individual capabilities have changed considerably since 1982. The threat the individual posed to the state is 1982 is categorically different to the threat the individual poses to the state in 2014. The reader may be questioning the logic of this argument as it speaks to a very low-probability situation. This is true, but matters, given the asymmetrical effect an individual can have in today’s society; and this asymmetry will only grow. To illustrate, consider this example: a bomb can be remotely detonated by a text message. Which is the weapon: the bomb or the cell phone that acts as the trigger? A pat-down for a concealed weapon, such as a knife or gun, may be considered reasonable (Hill, 2008) but what is the equivalent if the mobile phone is the weapon?
Do Not Doubt the Power of the One
We now begin to spiral down a series of Charter issues, such as: incidental authority to search a detained purpose while under investigation. Random vehicle stops are viewed through the lens of section 9 rather than section 8 (Hill, 2008); is it possible that one day, after a horrible terrorist attack, random mobile phone checks will viewed through a section 9 lens? Cyberspace, instant communications, and the virtual life have altered everything. Can we accurately judge equality rights online? Do we have the ability to pay deliberate attention to: power, vulnerability, presence, and absence (Cairns Way, 2012) online?
There are practical questions. Does a police officer have the capability and skills to determine whether there are “reasonable grounds” for a warrantless arrest if technology is a factor? Do they have the necessarily tools to perform legal searches and seizures? Can they ensure contamination of the evidence does not occur? If the police officer finds something that they believe to be digital evidence, is there the possibility the accused will claim some form of self-incrimination?
These challenges may not be predominant today; but we soon will be. The Charter gave the courts a mechanism to regulate unchecked police conduct (Penney, 2012), but “regulated” conduct does not mean “better” conduct, especially when dealing with unknown and unfamiliar environments. Law enforcement, like parliamentarians and judges, are in desperate need of better contextual technological understanding. This is difficult when those often the best versed in technology are of a younger age. Judges, peace officers, and parliamentarians do not exactly have personas that take advice easily from somebody that is 30 years younger than them, even if they are some of the most brilliant hackers.
So, if a teenager were to commit massive fraud or theft, such as siphoning personal accounts of everyday people, would it be cruel and unusual punishment to give the teenager a mandatory sentence? Would a first-time offence be mitigating factor (Hill, 2008) in sentencing? A kneejerk reaction may be, “well, the kid didn’t physically hurt anybody, so go easy on him.” Is that our test? Physical hurt? Given our dependence on technology today, the answer may not be so clear cut anymore. Say the teenager performed the crimes using their parents’ computer and internet connections, would the parents find themselves in a R. v. Smickle[2] type scenario? While legal scholars made say there is precedent to make comparisons from a common law point of view, are they contextually comparable? Who is right? Who is wrong? More importantly, who understands the context best? Will we reach a threshold that somebody feels their right of security is impaired because of increased risk from psychological harm caused by online activities? In the future, will we see some sort of R. v. Morgentaler[3] equivalent invalidating sections of the Criminal Code that relate to cyber issues?
Do Not Doubt the Power of the Masses
Again, the reader may be thinking that these hypothetical examples are too narrow in scope; they are not, as all indicators show technology will play this role our future lives. Theft was once done with a gun or knife (and still is), but is significantly more profitable (and safer) if done from a computer. Bullying was normally settled with a schoolyard fight, often the worst case resulting in a bloody nose. Today, bullying is done through Facebook and Twitter, sadly resulting in: embarrassment, isolation, and in the worst cases, suicide. Marry devious humans with seemingly benign technology (such as an airplane or a pressure cooker) and you have a horrific situation. Low-probability situations matter because they:
- have asymmetric impact; and
- put pressures on the system for change.
Our 24-hour news cycle – which often uses one story to illustrate a complex situation – puts political pressure on reforms, often resulting in ill-informed, far-reaching statutes, and crafted by those who truly have little-to-no understanding of the 21st Century dynamic. And when the courts offer an opinion of the validity of the statutes, they are doing it from the prism of common law jurisprudence, meaning that even well-crafted contextually sound statutes may be up struck down.
Law enforcement has difficulty keeping up from a technological perspective, particularly at the front lines. Law enforcement will often state more investigative powers are needed – and in some cases, they do – but there is also the possibility of overreaction. The recent case of Rehteah Parsons demonstrates this. While this case is truly tragic, it was fueled by technological pressures. It happened online, it gained attraction online, and the responses were online, which included vigilantism. The media, traditional and social, fueled the fire. The outrage gave conduits social activism and political opportunism to introduce Bill C-13, Protecting Canadians from Online Crime Act, which has elements that, from a certain perspective, may violate section 8 rights. Would have the reaction been remotely similar without the power of technology?
What Would the Charter’s Facebook Status be in 2014?
In the face of all these challenges, the Charter’s benefits, namely in terms of: privacy protection, search and seizure, self-incrimination and detention, diminish. Technology challenges the Charter’s original intent of: more emphasis on the protection of individual rights versus collective societal benefit. In R v. Plant[4] the perimeter search of was deemed unreasonable, yet the police check of computerized records was not. The reader should ask: in 2014, what isn’t computerized? Even with virtually no technological literacy, our lives have been effectively digitized, done so by our: utility companies, banks, telecommunications providers; the list is endless.
Social media – “huh?” said the drafters of the Charter – has presented an unprecedented challenge. It creates an environment where there is a lack of fear of consequence (except for the ever-dreadful civil lawsuit, or worse, Human Rights Tribunal). How can somebody get a “fair chance” if the “court of social media public opinion” has already caused irreparable damage? This environment allows people: to “harass” without restriction, spew hate online, and can even leave one questioning, who is the victim and who is the perpetrator and how do we allow online vigilantism (Blatchford, 2014)? There have even been suggestions that employers are demonstrating prejudicial behaviour in their hiring practices because they scan Facebook profiles (Levinson, 2011). Technology has changed the dynamics of due process.
We are only at the tip of the iceberg. Will sexual assault cases be dealt with differently? How can we protect somebody’s sexual history from being admitted as evidence if somebody’s Facebook profile may be a series of – what some deem to be – provocative photos? The online context only fuels myths and stereotypes if consent and credibility are at stake (Penney, 2012). A phone number may tell you little in terms of biographical data, but the e-mail address: firstname.lastname.yearofbirth@gmail.com tells a whole lot more. An IP address[5] – which to the everyday person may seem like a phone number or just a string of numbers – can be geographically traced (with free online tools). We have digitized our entire lives and while most of that information we have willingly (or unknowingly) given to the private sector, we really need to ask ourselves: do we have any reasonable expectation of privacy anymore?
Mr. Big Meet Mr. Byte
While the writer of this paper would like to believe that yes, we should still have that expectation, in practice, it would be laughable to assume we do. It is a foolish and naïve to believe information given to the private sector will remain in the private sector; not because they give it up, but because it is accessible by virtually any government agency of the developed world if they want it badly enough, along with every criminal or hacker, that has technical know-how. The sheer volume of data that we give away changes the meaning of interrogation and self-incrimination. Cases like R. v. Duarte,[6] which required prior judicial authorization to intercept or record, even in consent situations, “permanent records of our words” (Stewart, 2011) take on a whole new meaning. What we do online, effectively, is a permanent record (don’t believe the writer? Go check your Facebook history). Off-the-cuff “private messages” such as, “I hate that guy, I want to smash his face” will come back to haunt somebody.
How do we handle self-incrimination in this context of, not only digital words, but videos, pictures, and geo-tagging? The Charter has been very effective ensuring that an individual is not coerced into a confession or giving any information that could be used against them, but if we are effectively creating a permanent online record, which we have no control of once it leaves our fingertips. What protection can sections 11(c) and 13 provide? At what point do we take responsibility of our actions? Without Charter protection, we may have lived through truly nightmarish during the 1980s and 1990s; but our current online behaviour is nightmarish and the Charter offers less protection as our behaviour could lead to self-incrimination that assists in the proof of allegations (Dufraimont, 2012).
Could a Mr. Big type scenario occur today in cyberspace? Of course it could. There are a variety of tactics, such as spear phishing[7] or man-in-the-middle[8] attacks that could be considered an unethical way of evidence collection. Newly automated “chat friends” are designed to lure sexual predators with the promise of illegal (and truly horrific) sexual engagement. What happens if: a technologically illiterate user clicks on the wrong link that downloads questionable (or even illegal) material to their computer, is subsequently charged in a sting, and then faces a mandatory sentence? What if the user is completely innocent and lacks the technological know-how to realize that their computer has been hijacked to transmit these images?[9] What if the link is simply a fake, like the Ukash scam, opening up a can of worms for the victim?[10] Do the courts have the capability to consider “reasonable hypotheticals” as in R. v. Morrisey?[11]
Diminishing Returns: The Value of the Charter
Throughout the world, we see conflict, and in the Western world most conflict is based on ideology. We see: geopolitical power shifts, economic destabilization, technological proliferation, and migration patterns that even as recently as 20 years ago, were simply impossible to exist or imagine. The positive impacts of the Charter will be challenged and blurred lines increase the likelihood the Charter even battling itself. Not because of the principles and values (such as proportionality, fundamental rights, privacy, etc.) it tried to enshrine, but because of the legal system itself. Past interpretations and rulings must be used from a common law perspective, but these same interpretations and rulings have less contextual meaning. Times have changed, for better or for worse, but we are stuck with the Charter because of the catch-22 scenario that without entrenchment, we would just have another federal statute.
Over time, the Charter may prove to be a failure because of practicality, not principle, forcing a major overhaul of our executive and judiciary branches as our grey zones, as a function of technology, expand. The major criticism of this paper would likely be that it is narrow in scope, focusing on low-probability cases. They are low-probability cases in 2014; in 2024, they may be the norm, and that is where this paper was trying to go.
As the contexts become more complex, danger comes from the sophisticated criminals who will learn to stretch the limits of Charter protection in an undefined and complex environment. These sophisticated are: the fanatics, the cyberthieves, the religious extremists, the narcoterrorists, and all their related cousins. They will cause the most damage to our society and the Charter, drafted with all the best of intentions, over time, may in fact put society in a more vulnerable position as these people exploit it. Sadly, the two groups that may suffer most are:
- the petty criminals, who generally pose no significant threat to the public, are often more of a threat to themselves, and are the ones that require our social help most; and
- the general public, because they will be locked in a legal system that was contextually sound in 1982. Until a government has the political will to make the Charter contextually sound – which in the opinion of the writer, would only occur out of extreme necessity – we are stuck with it.
A closing thought: what is contextually sound? The short answer: amendments that can accurately address our most serious criminal threats of the time; but ensuring the most vulnerable, and our fundamental values and freedoms originally envisioned during the drafting of the Charter, are protected.
Footnotes
[1] R. v. Martineau [1990] 2 S.C.R. 633
[2] R. v. Smickle, 2012 ONSC 602
[3] R. v. Morgentaler, [1988] 1 S.C.R. 30.
[4] R. v. Plant, [1993] 3 S.C.R. 281
[5] An Internet Protocol address effective acts as identifier for communication between devices.
[6] R. v. Duarte, [1990] 1 S.C.R. 30
[7] Spear phishing is a spoof e-mail attack designed to gather confidential data from a specific organization or person.
[8] Man-in-the-middle attacks are a form of eavesdropping in cryptology where the users are unaware that their messages are being passed through a third source.
[9] This is not fantasy; in fact, it is a real case where computers have been hijacked (Robertson, 2009) and users are unaware of it. Often, they only find out about it when they are visited by law enforcement and often suffer irreparable reputational damage, even if they are completely innocent.
[10] The Ukash scam is particularly frightening because a Trojan takes over the user’s computer, but it makes them think that the computer has been taken over by a law enforcement agency, implying that they have been conducting in illegal behaviour.
[11] R. v. Morrisey, [2000] 2 S.C.R. 90
Works Cited
Jurisprudence
- v. Duarte, [1990] 1 S.C.R. 30
- v. Martineau [1990] 2 S.C.R. 633
- v. Morgentaler, [1988] 1 S.C.R. 30.
- v. Morrisey, [2000] 2 S.C.R. 90
- v. Smickle, 2012 ONSC 602
Blatchford, C. (2014, January 10). Complainant willing to be self-appointed sheriff of wild west Twitterverse. Retrieved from National Post: http://fullcomment.nationalpost.com/2014/01/10/christie-blatchford-complainant-willing-to-be-self-appointed-sheriff-of-wild-west-twitterverse/
Cairns Way, R. (2012). Attending to Equality: Criminal Law, the Charter and Competitive Truths. In B. L. Berger, & J. Stribopoulos, Unsettled Legacy: Thirty Year of Criminal Justice under the Charter (pp. 39-56). Markham, ON: LexisNexis.
Dufraimont, L. (2012). The Patchwork Principles against Self-Incrimination under the Chater. In B. L. Berger, & J. Stribopoulos, Unsettled Legacy: Thirty Years of Criminal Justice under the Charter (pp. 275-296). Markham, ON: LexisNexis.
Hill, C. (2008). Investigative Detention: A Search/Seizure by Any Other Name? Supreme Court Law Review, 40(2), 179-210.
Hopper, T. (2014, January 8). York University professor who refused student’s request to be separated from female classmates broke ‘obligation to accommodate’: officials. Retrieved from National Post: http://news.nationalpost.com/2014/01/08/york-university-professor-who-refused-students-request-to-be-separated-from-female-classmates-broke-obligation-to-accommodate-officials/
Levinson, M. (2011, April 18). Social Networks: A New Hotbed for Hiring Discrimination Claims. Retrieved from CIO: http://www.cio.com/article/679830/Social_Networks_A_New_Hotbed_for_Hiring_Discrimination_Claims_
Penney, S. (2012). Police Questioning in the Charter Era: Adjudicative versus Regulatory Rule-making and the Problem of False Confessions. In B. L. Berger, & J. Stribopoulos, Unsettled Legacy: Thirty Years of Criminal Justice under the Charter (pp. 297-326). Markham, ON: LexisNexis.
Penney, S., Rondinelli, V., & Stribopoulos, J. (2011). Criminal Procedure in Canada. Markham, ON: LexisNexis.
Roach, K. (2008). A Charter Reality Check: How Relevant Is the Charter to the Justness of Our Criminal Justice System? Supreme Court Law Review, 40(2), 717-759.
Roach, K. (2012). The Charter versus the Government’s Crime Agenda. Supreme Court Law Review, 58(2), 211-243.
Robertson, J. (2009, November 9). Internet Virus Frames Users. Retrieved from Huffington Post: http://www.huffingtonpost.com/2009/11/09/internet-virus-frames-use_n_350426.html
Rosenberg, M. (2009). Twenty-Five Years Later: The Impact of the Canadian Charter of Rights and Freedoms on the Criminal Law. Retrieved from Court of Appeal for Ontario: http://www.ontariocourts.ca/coa/en/ps/publications/twenty-five_years_later.htm
Schwartz, D. (2012, April 17). 6 big changes the Charter of Rights has brought. Retrieved from CBC: http://www.cbc.ca/news/canada/6-big-changes-the-charter-of-rights-has-brought-1.1244758
Stewart, H. (2011). Normative Foundations for Reasonable Expectations of Privacy. Supreme Court Law Review, 54(2), 335-355.
Stribopoulos, J. (2006). Has Everything Been Decided? Certainty, the Charter and Criminal Justice. Supreme Court Law Review, 34(2), 383-408.