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Section 11 of the Charter guarantees every individual certain rights when they are charged with a criminal offence. Section 11 applies to all types of offences (criminal, quasi-criminal, and regulatory offences). Section 11 protects individuals as they navigate their way through the criminal justice system, from the moment they are charged until their matter is resolved. Different rights attach to the individual at different stages of the proceedings. There are nine specific rights enumerated in s. 11:
The rights in s. 11 are a response to inherent inequalities in the criminal justice system. When an individual is charged with a crime, he or she is suddenly thrust into a legal battle with the state. However, the state has significant financial, investigative, and prosecutorial resources, giving it a considerable advantage. The rights enshrined in s. 11 provide the accused person with constitutional protection throughout his or her prosecution to offset this advantage.
If the state fails to meet its obligations under s. 11, a criminal defence lawyer can raise the issue at trial in order to argue that the accused person has been unfairly treated by the state. This will sometimes lead to a remedy under s. 24 of the Charter (see our blog on Charter Remedies).
Section 11(a) of the Charter is premised on the legal principle that every accused person is entitled to know the nature of the allegation against them at an early juncture so that they can make informed decisions in their defence. This is an essential aspect of the common law conception of a “fair trial”. It would be absolutely impossible for an individual to begin to prepare a defence if he or she did not know the charge against him or her. Thus, s. 11(a) ensures that an individual is able, along with a criminal defence lawyer, to begin to prepare a defence as soon as they are arrested.
In The Queen v. Nijhar the Supreme Court of Canada confirmed that if multiple charges have been laid against the accused, an agent of the state must inform the accused of all the charges. The Charter does not require that the accused be notified of the charges in writing. Section s. 11(a) guarantees the right to be informed of the specific offence an individual is charged so that they are in a position to refute and respond to the specific allegation as opposed to criminal activity generally.
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Section 11(b) provides that every person has a right to be tried within a reasonable time. What constitutes a reasonable time will vary from case to case. However, generally speaking, this provision protects against unnecessary, irresponsible or flagrant delay on the part of the prosecution. In R. v. Rahey, the Supreme Court explained that s. 11(b) “protects against an overlong subjection to a pending criminal case and aims to relieve against the stress and anxiety which continue until the outcome of the case is final”. Without s. 11(b) the state would be free to cause unnecessary delay for strategic reasons, and the individual would have no recourse where a prosecution is less than diligent. Section 11(b) ensures that a prosecution moves along at a reasonable pace without undue prejudice to the person who is the subject of the prosecution. This Charter right recognizes that criminal proceedings are very stressful and disruptive to an individual’s life, and seeks to minimize that effect.
In R. v. MacDougall the Supreme Court confirmed that that the s. 11(b) right applies until the individual has been sentenced. Thus, the protection in s. 11(b) could be invoked to remedy an unreasonable delay between judgment and sentencing.
Section 11(c) is the constitutional recognition of the common law principle against self-incrimination. The purpose of s. 11(c) is to prevent the prosecution from forcing individuals to supply the evidence that could be used to convict him or her. Historically, Canadian society has considered self-incrimination to be an affront to the every human being’s inherent right to personal dignity and privacy. Section 11(c) is closely related to the right in section 11(d), which states that every individual is presumed innocent until proven guilty. Together, ss. 11(c) and (d) create a constitutional obligation on the state to prove their case beyond a reasonable doubt. In practice, this right guarantees that the Crown cannot force you to testify as a witness at your own trial. The decision to testify in your own defence rests entirely with you. Every defendant is entitled to refrain from testifying. The court cannot infer guilt from an accused’s decision not to testify at his own trial.
The Supreme Court of Canada has referred to this constitutional right as “the golden thread” that runs through the criminal law. The burden is always on the prosecution to prove a criminal case. The presumption of innocence acts as a shield to protect an individual where the evidence falls short of proof beyond a reasonable doubt. Section 11(d) entrenches the long standing common law principle that no person can be convicted if there exists a reasonable doubt that they committed the offence. It is because of s. 11(d) that the court is constitutionally required to prove every element of the offence beyond a reasonable doubt and also to disprove the validity of any defence beyond a reasonable doubt. The Supreme Court has ruled that it would contravene s. 11(d) if the defence was required to disprove an element of the offence or to prove the existence of a defence. Thus, at minimum, the defence must show that the case, as presented by the prosecution, leaves a reasonable doubt as to whether the defendant is guilty.
Section 11(e) is also closely related to the right to be presumed innocent until proven guilty. Section 11(d) tells us that every individual must be presumed to be innocent and section 11(e) speaks to the issue of an accused person’s liberty before trial. Generally speaking, innocent individuals should not be deprived of their liberty prior to conviction for the offence. Section 11(e) guarantees every person’s right to liberty as they await a criminal trial. For obvious public safety reasons, in some cases it is impossible to allow the defendant to remain at liberty. That is why s. 11(e) allows the state to continue to detain the individual in some cases – but only when they have “just cause”.
The term “reasonable bail” refers to the terms of the bail, such as the quantum of bail and the restrictions placed on the accused’s liberty while he or she awaits trial. These must be “reasonable” so as to avoid infringing on the accused’s liberty in an unfair or arbitrary manner. The requirement that the state have “just cause” refers to the right to be released on bail. According to the Criminal Code, there are only three reasons that the accused may be denied bail: if he or she is a danger to the public safety, if he or she is likely to flee the jurisdiction, or if his or her release would erode public confidence in the administration of justice (see our blog, “Bail: the Tertiary Ground for more information). If the Crown can establish that any of these three grounds are present in the case at bar, that will constitute “just cause” for denying bail.
Section 11(f) gives the denfendent the right to elect to be tried by jury if they are charged with a crime for which the maximum punishment is more than five years. For administrative reasons, it is virtually impossible to allow individuals to elect to be tried by jury for minor offences. However, the right to be tried by a jury of your peers is one of the oldest and most important common law principles. Since the decision of a jury must be unanimous, juries add an institutional safeguard to the trial process by requiring the prosecution to convince twelve individuals of the defendant’s guilt – instead of just one judge. Section 11(f) recognizes the benefits of trial by jury and allows the accused to take advantage of those benefits. However, the defendant is free to choose to forego the “benefit” of a jury, if he or she feels it is in his or her best interest to do so. Though trial by jury is generally an advantage for the accused, criminal defence lawyers tend to recommend that the accused waive his or her right to be tried by jury in certain situations, for example, when a person is accused of a particularly shocking and horrendous crime which might prejudice the jury against the accused such as a sexual or violent crime against a child.
Section 11(g) contains a simple but important right. Because of s. 11(g), the criminal law can never apply retroactively. Essentially, this means that no person can be convicted of an action alleged to constitute an offence that was not illegal at the time the defendant committed it. For example, if the government were to pass a law tomorrow saying that it is illegal to purchase a handgun, it could not then arrest every individual who purchased a handgun before the law was enacted. It could only arrest those individuals who purchase handguns after the law comes into force.
Section 11(h) essentially enshrines what criminal lawyers and other legal professions refer to as the rule against “double jeopardy”. This rule means that an individual cannot be tried a second time for the same crime on the same set of facts. If the individual was acquitted of the crime, he or she cannot be tried again, even if the police find new evidence against the person.
However, the double jeopardy principle does have some important qualifications. Unlike in the United States, in Canada the double jeopardy principle does not prevent the prosecution from appealing an acquittal at trial. In the US, if the accused is acquitted at the trial stage, the District Attorney’s Office cannot appeal the acquittal to a higher court (if the accused is convicted at trial, he or she does have the right to appeal). In Canada, the Supreme Court has ruled that s. 11(h) does not apply until the trial has been “fully concluded”. A trial cannot be fully concluded until either side has exhausted its ability to appeal. Thus, any appeal is deemed to be an extension of the trial and not a new trial. The Court of Appeal does not have the power overturn a verdict and enter a new verdict. At most, the Court of Appeal can order that a new trial be conducted. The Supreme Court has likewise ruled that a new trial in these circumstances is an extension of the original trial and does not constitute a breach of s. 11(h). Moreover, if you are tried for a criminal offence, s. 11(h) does not preclude you from facing other types of legal proceedings arising out of the same facts that led to your criminal charge. For example, if you are convicted of assault in a criminal court, the victim can sue you in the civil court and the civil suit will not constitute a breach of s. 11(h).
The final right articulated in s. 11 of the Charter is relatively straightforward. It simply states that where the punishment has changed between the time the offence was committed and the time a person is sentenced, the lesser punishment applies at the time of sentencing. This only applies until the time of sentencing. If the law is changed to impose a lighter penalty after the defendant is sentenced, he or she cannot invoke s. 11(i) to appeal his or her sentence. Finally, s. 11(i) has no application to civil penalties even if they flow from a criminal conviction (for example, the suspension of an individual’s driver’s license after an impaired driving conviction).
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