The Canadian Charter of Rights and Freedoms
Before the Charter was enacted in 1982, police in Canada had great powers and authority over crime. Police power was hardly ever frowned upon by the public. In short, Canada used to adopt the crime control model of policing. The police had discretion in all matters concerning policing, including apprehension, questioning, search, and seizure. As a result, little concern was shown towards the rights of the accused. The laws in Canada at that time hardly restricted the police in crime control. This was contrary to many other countries the world over, and especially Canadas neighbor, the United States in which the rights of the accused were and are still overtly protected by the law. In fact, the police and police agencies advocated strongly for unlimited powers and limitations of the courts in ensuring justice prevails in society. Moreover, this opinion of unlimited police power also had its support from the courts which asserted that the work of the police should not be interfered with under normal circumstances. Thus, the only exception was extreme situations in which the rights of the accused were severely violated. In trying an accused person, the courts did not bother to check the manner in which the evidence brought against the accused was collected as long as the evidence was appropriate. The only exception to the admissibility of evidence was an involuntary statement given by the accused. Nevertheless, this does not mean that the powers of the police were liberal. The powers of the police were limited to a small extent. In addition, there was also the protection of the rights of the accused by some statutes and doctrines but these rights were not guaranteed.
Policing in Canada after the introduction of the Charter of Rights and Freedoms
When the Charter was originally introduced, it was met with substantial condemnation by the majority of the police officers and agencies such as the Canadian Association of Police. The police officers argued that the Charter would unreasonably limit their abilities to carry out their work. The frustration of the police with the Charter was evident following the Askov case in which the court ruled that a of trial violated the Charter. Following this ruling, more than 40,000 cases in Ontario alone were thrown out of the courts on a similar basis. Some of these cases involved serious charges like assault and rape. The police thus felt that their efforts in fighting crime were all in vain. The Charter however has inherent challenges one of which is its ambiguity. As a result, different courts have different interpretations of the laws application. The Charter has indeed limited the powers of the police to some extent. For instance, it requires the police to follow due process when interrogating, searching, or seizing suspects and any potential evidence. However, in many situations, the courts have often turned a blind eye when it comes to the enforcement of such laws. For instance, the Supreme Court of Canada gave a ruling that an accused persons right to counsel is breached only if he claimed that he did not understand that right and that there is no doubt about his claim. In addition, if an accused insists on his right to counsel, the police should provide the person with a reasonable chance to exercise this right and should therefore not question the person or try to obtain evidence from him.
The Effect of the Charter on Policing
It has been claimed that the first ten years since the introduction of the Charter saw a shift in the balance of power that favored the public more than the police. This shift came about because before the Charter the courts had often focused on controlling crime at all costs instead of following the due process in order to balance the rights of the accused with the rights of the society as well as the needs of law enforcement. Undoubtedly, the Charter has affected the decision-making abilities of the police but it has not necessarily tied their hands. Specifically, the Charter is in existence to provide a framework within which the police officers can use their discretion in a formal way. The Charter thus enables the police officers to execute their job in a more professional and acceptable manner. It enables the police not to get carried away in their tracking down of criminals. Put differently, the Charter promotes good policing.
The Charter also enables the judges to establish if the police officers followed due process in apprehending, questioning, seizing, or searching suspects (Boyd, 2007, p.322). This however does not imply that the police should not use force or violence if situations call for it. In situations where police officers have information that a suspect is a violent person, then their use of force to apprehend the suspect is justifiable. In addition, it is not the case that courts are consistently throwing out cases due to violations of the Charter. Even if some criminals are walking free on the street due to violations of the Charter, the Canadian society still holds the police in high esteem, and thus the failure to protect the public from criminals is often blamed on the courts rather than on the police. Moreover, the Supreme Court of Canada has acknowledged its past emphasis on protecting the rights of the accused and is now trying to balance the rights of both the public and the accused persons. The Charter thus offers a system of checks and balances but it does not restrict the police from carrying out their work. Indeed, police officers always have alternatives when it comes to eliciting the evidence they need to incriminate a criminal.
This is illustrated in one of the clauses of the Charter which requires police to have a warrant before they can arrest or apprehend a suspect in a private dwelling. Because of this clause, some cases, such as the. Feeney has been thrown out of court because they violated the Charter. Nevertheless, the clause presents a big challenge to the police especially when it comes to protecting the safety and security rights of the general public. This is because the time taken by the police before acquiring a warrant to search or seize may increase the safety risk to the public. Because of this challenge, the Attorney General was forced to increase the powers of the police by allowing them to enter a private dwelling of a suspect with the aim of obtaining crucial evidence without a warrant. This is allowed in urgent or exigent situations. The Canadian Charter of Rights and Freedoms, therefore, exists not only to protect the rights of the accused but also the rights of the public. It, therefore, attempts to balance these two rights in the criminal justice procedure.
The Rights of the Accused with the Rights of the Society: Cases The R. v. R.C Case
In the R v. R.C case, a 13-year old boy was accused of assaulting his mother with a pen and repeatedly hitting her with his closed fist. When presented before the trial court, the trial judge discovered was a history of family violence which carried the potential for future violence if it were not tackled. The trial judge sentenced R.W.C. to four months conditional probation (R v. R.C., 2005, p. 10). In addition, the accused was required to undergo an anger management program. The major issue raised in the case was whether the trial judge erred in refusing to give a DNA order on the accused. This refusal was based on the fact that the accused was only 13 years old (hence considered to be a young person), had no prior criminal record and that the offense committed was not too serious. The holding given by the trial court was refuted by the Court of Appeal which in turn ordered for the DNA sample to be collected from the accused. The trial judge concluded that the DNA sample would gravely violate the privacy of the accused.