Section Eleven of the Canadian Charter of Rights and Freedoms

Encyclopedia : S : SE : SEC : Section Eleven of the Canadian Charter of Rights and Freedoms

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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.

Contents

1 Right to be informed of the offence
2 Right to be tried within a reasonable time
3 Right not to be compelled to be a witness
4 Right to be presumed innocent
5 Right not to be denied reasonable bail
6 Right to trial by jury
7 Right not to be found guilty unless action constituted an offence
8 Right not to be tried again
9 Right to lesser punishment
10 References
11 External links

Right to be informed of the offence

Section 11(a) provides that

''11. Any person charged with an offence has the right

:''(a) to be informed without unreasonable delay of the specific offence;

Right to be tried within a reasonable time

Section 11(b) provides that

''11. Any person charged with an offence has the right ...

:''(b) to be tried within a reasonable time;

The criteria by which the court will consider whether the rights of an accused under this provision have been infriged were set out in R. v. Askov.

Right not to be compelled to be a witness

Section 11(c) provides that

''11. Any person charged with an offence has the right ...

:''(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

This provides a right against self-incrimination. Another right against self-incrimination can be found in section 13 of the Charter.

Right to be presumed innocent

Section 11(d) provides that:

''11. Any person charged with an offence has the right ...

:''(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

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.

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.

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, but in the Provincial Judges Reference (1997) it was expanded, with reference made to the preamble of the 1867 Act.

Right not to be denied reasonable bail

Section 11(e) provides that

''11. Any person charged with an offence has the right ...

:''(e) not to be denied reasonable bail without just cause;

Right to trial by jury

Section 11(f) provides that

''11. Any person charged with an offence has the right ...

:''(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

Right not to be found guilty unless action constituted an offence

Section 11(g) provides that

''11. Any person charged with an offence has the right ...

:''(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

This right 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 commited 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.

Right not to be tried again

Section 11(h) provides that

''11. Any person charged with an offence has the right ...

:''(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again;

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.

Right to lesser punishment

Section 11(i) provides that

''11. Any person charged with an offence has the right ...

:''(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

This right states that if a person commited 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 Ontario Court of Appeal 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.Canadian Legal Information Institute, "[SECTION 11(i)]," Canadian Charter of Rights Decisions Digest, URL accessed 2 June 2006. The cases were R. v. Luke 1994 CanLII 823 (ON C.A.), (1994), 87 C.C.C. (3d) 121 (Ont. C.A.); R. v. Bishop (1994), 94 C.C.C. (3d) 97 (Alta. C.A.).

References

External links

[canlii section 11 digest]

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