Colin Wood, “The Inflexible Stay of Proceedings: Alternative Remedies for Charter Section 11(b) Breaches”

Delay is a clear enemy to the fair trial of an accused in Canada. When many months or years elapse between an accused’s arrest and the date they stand trial, numerous undesirable consequences follow; memories fade and witnesses move away, die, or become otherwise unavailable. As a result, an accused may suffer an intolerable custodial environment without having ever been convicted of a crime. Section 11(b) of the Canadian Charter of Rights and Freedoms codifies the right of any person charged with an offence to be tried within a reasonable time. In the years following the proclamation of the Charter in 1982, considerable litigation has examined the meaning of the right in practical terms and prescribed a remedy to be applied in cases of a breach. This remedy is the stay of proceedings. The Supreme Court of Canada has ruled that the stay is the minimal remedy available where an accused’s section 11(b) right has been breached.

Where a breach of section 11(b) is established following an application of the test in R v Morin, a trial judge must balance the public interest on the merits against the accused’s right to be tried within a reasonable time. Despite the Supreme Court of Canada’s pronouncement that a breach of this right should be remedied minimally by a stay, this balancing exercise nevertheless allows a trial judge to direct a trial if it serves the public or societal interest. In such a case, other remedies for the breach are theoretically unavailable to the accused, as the stay is the required minimal remedy. This is an unsatisfactory and unnecessary status quo. While the author does not propose a change in the current application of the stay where a fair trial is no longer possible and the only appropriate remedy is a stay of the proceedings, an accused should not be left without any recourse where a breach has occurred and the trial nevertheless proceeds. An accused should be entitled to an alternative section 24(1) remedy in such circumstances. Several alternative remedies are suggested in this paper, including sentence reduction, enhanced credit for pre-sentence custody, damages, and the exclusion of evidence. The Supreme Court of Canada pronouncement of the stay as a minimal remedy should be revisited, while alternative remedies should be examined for their application in unreasonable delay cases.

Colin Wood, “The Inflexible Stay of Proceedings: Alternative Remedies for Charter  Section 11(b) Breaches” (PDF)

Matthew Wolfson, “Public Opinion and Excluding Evidence Under Section 24(2) of the Charter: A Recent Poll”

Since the advent of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada has frequently considered what investigative techniques employed by police are disreputable to the justice system at large. The technique of most importance is the constitutional provision that allows the judiciary to exclude evidence based on such considerations—section 24(2) of the Charter. Since establishing the system’s repute is part of the formal legal test for admissibility of improperly obtained evidence, judges typically perform a mental exercise, imagining what the “reasonable person” would find acceptable.

The aim of this study is to compare the outcomes of five of the Supreme Court of Canada’s landmark section 24(2) analyses with public opinion as to when evidence is justly excluded from criminal trials. Accordingly, this study includes a survey conducted in 2011 to more fully understand what evidence-gathering measures are truly disreputable in the eyes of the Canadian citizenry. The survey was designed and administered for a graduate research paper in Criminology and Criminal Justice Policy at the University of Guelph. The survey is intended to capture any variance or overlap between the views of a sample of ordinary citizens and the Supreme Court of Canada’s judgments on evidence exclusion.

Matthew Wolfson, “Public Opinion and Excluding Evidence Under Section 24(2) of the Charter: A Recent Poll” (PDF)

Amy Mintah, “Excluding the Indigent from the Public Sphere”

“We are witnessing increasing marginalization, the deepening of stereotypes and the exiling of the poor from our political community” with the enactment of the Safe Streets Act. The indigent are increasingly construed as dangerous and less deserving members of society, and the public and private spaces of these individuals have been shrinking as a result. In 1999, the Safe Streets Act came into force in the province of Ontario. British Columbia passed similar legislation in 2004. The Safe Streets Act targets one of the most vulnerable groups in society, exacerbating their disadvantaged position. The legislation also offends the basic tenets underlying the constitutional framework of the Canadian Charter of Rights and Freedoms, specifically sections 7, 12, and 15, and therefore should be struck down. Alternatively, amendments could remove the unconstitutional or problematic provisions.

Amy Mintah, “Excluding the Indigent from the Public Sphere” (PDF)


Danielle Cornacchia & Mustafa Farooq, “Status Change: Addressing Section 32 of the Charter, University Disciplinary Powers, and the Supreme Court in Light of Pridgen v University of Calgary”

Are university affairs ever open to Charter scrutiny, particularly in matters of student discipline? This was one of the key questions raised, though not conclusively decided, in Pridgen v University of Calgary. This question, in an era of political polarization and mass mobilization on university campuses, directly affects Canada’s roughly two million post-secondary students. The authors argue that despite the Alberta Court of Appeal’s well-reasoned section 32 analysis, the decision’s relative legal and public obscurity, coupled with the broad individual and institutional interests at stake in deciding this question, suggest a need for the Supreme Court of Canada to rectify its ambiguous interpretation of section 32 in McKinney v University of Guelph. This paper attempts to demonstrate an interpretive cleavage in section 32 jurisprudence surrounding universities’ exercise of disciplinary powers by contrasting the opinions expressed within the Pridgen ABCA case and the narrow application of section 32 by other courts across the country, particularly in Ontario.

Danielle Cornacchia & Mustafa Farooq, “Status Change: Addressing Section 32 of the Charter, University Disciplinary Powers, and the Supreme Court in Light of Pridgen v University of Calgary”

Amy Barrington, “Unravelling the Two-Row Wampum: Limiting First Nations’ Membership Rules in Canada”

How important is community acceptance? For Canada’s First Nations peoples whose band governments are the gatekeepers to benefits and services, it might seem desperately important. Even if one self-identifies as being a member of a First Nation, there remains the question of whether they will be recognized as belonging to that community, such that they receive benefits and services provided under section 35 of the Constitution Act, 1982 and the Indian Act. While the Supreme Court of Canada has not explicitly affirmed the right to self-government as a freestanding right protected under section 35 of the Constitution Act, 1982, the court has affirmed elements that might comprise such a right. Other Canadian courts and tribunals have also produced a substantial body of case law in support of its existence.

In this essay, the author advocates for the use of a modified justificatory approach to assess whether a First Nation’s discriminatory membership code is justifiable under Canadian law. If the law purports to infringe on women’s equality rights, Canadian law should impose a limitation on a First Nation’s autonomy in order to protect these rights, as such discrimination cannot be justified in light of Canada’s historical context.

Amy Barrington, “Unravelling the Two-Row Wampum: Limiting First Nations’ Membership Rules in Canada” (PDF)