Fundamental Justice and the Charter of Rights and Freedoms
Criminal justice systems exist to protect society using a broad range of laws and regulations
designed to define, control, and prohibit unacceptable behaviour and conduct. The behaviour and
conduct to be prohibited or controlled can range from criminal acts of terrorism and murder, to
infractions of a minor nature, such as exceeding the speed limit or watering one’s lawn outside of
permitted time periods. These laws and regulations can result in a variety of sentences,
restrictions, and interventions to personal freedom or penalties against offenders. In Canada,
penalties can range from life imprisonment with no parole eligibility for 25 years, to fines,
probation, or a warning. As a core principle in the application of any of these laws, there are
strong social values that reflect the expectations of citizens who live under the protection of the
laws. Citizens expect and demand that the law be enforced and administered fairly and in a
manner that respects their rights and freedoms as individuals. This expectation most particularly
pertains to any person suspected of or charged with an offence.
These values and expectations of fairness have origins dating back to ancient Rome and of
English common law, which eventually defined the principles of “natural justice”, now more
commonly referred to in Canada as “fundamental justice” (Dostal, 2012h).
At the core of these principles of “natural justice” or “fundamental justice”, some basic
operational imperatives have been established to guide the outcomes of the justice system and
ensure fundamental justice for persons charged for an offence. For example, one who alleges an
offence to have taken place must prove it, the person accused of an offence has the right to see
the evidence against them, the person accused has the right to answer to the charge and provide a
defense, the trier of fact (i.e. most commonly a judge) must not be biased, and the trier of fact
must base their decision upon evidence and must articulate the evidence considered when the
decision is handed down. Further entrenching these principles of “fundamental justice”, the
Canadian Charter of Rights and Freedoms Sections 7 -14 was enacted into law in 1982,
replacing the existing Canadian Bill of Rights (Government of Canada, 2015).
Excerpt from Charter of Rights and Freedoms Sections 7-14, “Legal Rights”:
7.Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
8.Everyone has the right to be secure against unreasonable search or seizure.
9.Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
(a)to be informed promptly of the reasons therefor;
(b)to retain and instruct counsel without delay and to be informed of that right; and
(c) To have the validity of the detention determined by way of habeas corpus and to
be released if the detention is not lawful.
11. Any person charged with an offence has the right
(a)to be informed without unreasonable delay of the specific offence;
(b)to be tried within a reasonable time;
(c)not to be compelled to be a witness in proceedings against that person in respect of
the offence;
(d)to be presumed innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunal;
(e)not to be denied reasonable bail without just cause;
(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;
(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;
(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; and
(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.
12. Everyone has the right not to be subjected to any cruel and unusual treatment or
punishment.
13.A witness who testifies in any proceedings has the right not to have any
incriminating evidence so given used to incriminate that witness in any other
proceedings, except in a prosecution for perjury or for the giving of contradictory
evidence.
14. A party or witness in any proceeding who does not understand or speak the
language in which the proceedings are conducted or who is deaf has the right to the
assistance of an interpreter (Government of Canada, 2015).
As demonstrated by these eight explicit sections of the charter, any person accused of a crime
has a significant level of protection from being presumed guilty or from being treated unfairly by
the justice system because of an accusation.
In the criminal justice system, police investigators are very often the first point of contact and
they hold a primary obligation to respect the rights and freedoms afforded by the Canadian
Charter of Rights and Freedoms. The steps that must be taken by an investigator to ensure that
the rights and freedoms are protected and the principles of fundamental justice are followed will
be outlined in detail later in this book.
The Role of the Judge, the Prosecutor, the Defence, and the Police
As operational players within the criminal justice system, judges, crown prosecutors, defense
lawyers, and police all contribute to the process of “natural justice” or “fundamental justice”.
Each of these participants has specific and independent roles to play and duties to perform. For
example, the role of the police investigator is to gather information, physical evidence, and
witness evidence to form the reasonable ground that a particular suspect committed an offence.
Once these reasonable grounds for belief have been formed, the evidence can be presented to the
Crown Prosecutor to determine if a charge should be laid. The role of the crown prosecutor is to
examine the evidence gathered by police investigators. If charges are laid, the crown prosecutor
presents that evidence to a judge who will determine the guilt or innocence of the accused based
upon the test of proof beyond a reasonable doubt. The role of the defence counsel is to represent
the accused through examination of the evidence presented, testing the strength of the evidence
presented, and challenging the reasonable grounds for belief. The defense’s goal is to
demonstrate that the test of proof beyond a reasonable doubt has not been met.
Many are the occasions where police have identified and arrested the correct suspect, but the
evidence collected in their investigation was rejected by the court because procedural rules were
not properly applied. These kinds of cases, lost to errors in process or in misunderstanding of the
rules, provide valuable lessons for the police investigator who failed; but sadly, they are a
disappointing and a negative experience for the victim of the crime and the public who expect
investigators to always get it right.
The Burden of Proof
For a police investigator, it is important to understand that matters under investigation can end up
being presented in a criminal or civil court of law. Each of these court venues requires and
applies a different burden of proof to the evidence presented. It is entirely possible that a police
investigator will be called to present evidence of their investigation in either type of court. For
instance, it is possible in cases, such as a motor vehicle crash, that the evidence collected by the
police for a criminal court charge of Impaired Driving or Dangerous Driving could be used in a
civil court trial where an injured victim sues the impaired driver for damages resulting from their
injuries or the loss of their vehicle.
The criminal court is the one most commonly encountered by police investigators. These courts
hear cases investigated under the Criminal Code and under Federal, Provincial, and Municipal
Statues. Cases can cover offences ranging from personal and property offences to those covered
under Municipal Statutes. For criminal courts, judges or judges and juries use the burden of
proof described as “proof beyond a reasonable doubt” to determine if they will convict or acquit
an accused person. Civil courts take responsibility for making decisions in relation to matters
where one party is seeking a non-criminal judgement, damages, or a decision against another
party. These can be cases related to personal injury cases, contractual disputes, divorce
proceedings, and contested wills or estates. In these cases, the parties involved are referred to as
the plaintiff and the defendant. The plaintiff is the party that initiates the civil court action, and
the defendant is the party against whom the civil action is filed. In these civil actions, the burden
of proof considered by the court is described as “proof within a balance of probabilities”. This is
a much lesser test than proof beyond a reasonable doubt as the court seeks to determine, on the
balance of probabilities, which side is most likely correct.
Proof Beyond a Reasonable Doubt
Proof beyond a reasonable doubt is the standard measure of proof that the criminal court will
apply when determining if evidence presented by the prosecution is sufficient to convict the
person charged with an offence. If the evidence is sufficient, and the burden of proof has been
satisfied, the court may convict the accused. In these cases, the onus to prove all the elements of
the charge rests completely with the prosecution. The accused person is not required to prove
that they are innocent.
The Supreme Court of Canada has outlined the concept of proof beyond a reasonable doubt
suggesting that it should be explained to juries as follows:
The standard of proof beyond a reasonable doubt is inextricably intertwined with that
principle fundamental to all criminal trials, the presumption of innocence (R v Lifchus,
1997).
• The burden of proof rests on the prosecution throughout the trial and never shifts to the
accused.
• A reasonable doubt is not a doubt based upon sympathy or prejudice, and instead, is
based on reason and common sense.
• Reasonable doubt is logically connected to the evidence or absence of evidence.
• Proof beyond a reasonable doubt does not involve proof to an absolute certainty. It is not
proof beyond any doubt, nor is it an imaginary or frivolous doubt.
• More is required than proof that the accused is probably guilty. A jury which concludes
only that the accused is probably guilty must acquit.
The Supreme Court of Canada emphasized in R v Starr, that an effective way to explain the
concept is to tell the jury that proof beyond a reasonable doubt “falls much closer to absolute
certainty than to proof on a balance of probabilities.” It is not enough to believe that the
accused is probably guilty, or likely guilty. Proof of probable guilt, or likely guilt, is not
proof beyond a reasonable doubt (R v Starr, 2000).
It is important for investigators to understand that “proof beyond a reasonable doubt” is a
different test from what they are required to meet when considering the value of evidence during
their investigation. Later in this book, we will examine the importance of collecting,
documenting, and properly preserving as much evidence as possible to assist the court reaching
their belief beyond a reasonable doubt.
Reasonable Grounds to Believe
Reasonable grounds to believe, sometimes referred to as reasonable and probable grounds to
believe, is the test a police investigator must apply when considering the evidence to exercise
their powers during the investigation of an offence. Establishing reasonable grounds to believe
that a person is responsible for an offence allows the investigator to exercise powers that are
provided under the criminal code. These are the powers to arrest with or without a warrant, the
power to search and seize evidence with or without a warrant, and the power to swear an
information against a person once reasonable grounds to believe have been established.
Forming reasonable grounds for belief is a subjective thinking process. It is arguably the most
important thinking processes an investigator will undertake. It is a thinking process based upon
the consideration of information, evidence, and facts the investigator has collected during their
investigation. These reasonable grounds for belief must be based upon the investigator’s
assessment of the information and evidence available to them at the time the decision to act is
made. Evidence of guilt discovered after an action (such as when an arrest or a search has taken
place) cannot be used to retroactively justify that action of arrest or search. As such, when the
court considers if the investigator was correct and justified in forming reasonable grounds to
believe based upon the evidence available at the time of the action, the judge will think about the
nature of the evidence the investigator has described in their testimony.
Justice Cory in R v Storrey (1990) provided a very common sense deliberation to be applied in
determining if the investigator had reasonable grounds to believe:
The Criminal Code requires that an arresting officer must subjectively have reasonable and
probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable
from an objective point of view. That is to say, a reasonable person placed in the position of
the officer must be able to conclude that there were indeed reasonable and probable grounds
for the arrest. On the other hand, the police need not demonstrate anything more than
reasonable and probable grounds. Specifically they are not required to establish a prima facie
case for conviction before making the arrest. (R v Storrey, 1990)
Reasonable grounds to believe is a very important concept for an investigator to understand, and
it must not be confused with the more onerous test of “proof beyond a reasonable doubt” (R v
Starr, 2000), which is the test the court will use in weighing the evidence to determine if a
conviction for the offence is justified. Confusing these two levels of belief is an error sometimes
made by investigators, and it can cause an investigator to hesitate because they do not believe
they have reached the adequate level of belief to take action.
It is fortunate that this lesser level of belief, reasonable grounds, is available for police
investigators because it requires that police articulate only a subjective belief in the information
and evidence available to them at the time of their investigation. It allows police investigators to
form reasonable grounds of belief based on physical evidence they have seen, records they have
reviewed, and hearsay information acquired from witnesses. In situations where time is of the
essence to protect life and safety, protect evidence, or to bring a situation under control, it does
not require the investigator to undertake any validation of the information they are relying on.
The information may be taken at face-value.
Establishing reasonable grounds to believe and taking the action of making an arrest or
conducting a search will not necessarily be the precursor to collecting enough evidence to lay
charges. In some cases, an arrest is made because reasonable grounds existed and, after
additional information and evidence are accessed, it becomes clear that the person is not guilty of
the offence. Consequently, the process of laying a charge does not take place and the person is
released. Remaining open to the outcome of determining innocence is truly a test of objectivity
for investigators. This objectivity can sometimes be difficult to achieve when there is serious
pressure to capture a dangerous offender. The mistake of being too quick to proceed with
charges, or even discounting and ignoring evidence that indicates innocence, is a trap that has led
many investigators to the end their careers under accusations of lost objectivity or even
incompetence (Pennington, 1999).
When charges are laid, objectivity can become a key issue at the trial and the defence may
demand that the investigator provide an accurate account of evidence that was considered or
ignored in the thinking process to establish their reasonable grounds to believe. Forming
reasonable grounds is a process that should be undertaken with careful consideration of the facts.
Forming reasonable grounds requires a diligent intent to remember the facts, keeping in mind
that an articulation of the subjective analysis used in forming reasonable grounds for belief may
be required as testimony in a court.
This degree of self-awareness is a critical step in building the thinking skills to become a good
investigator. With these thinking skills in mind, tools will be provided later in this book that can
assist an investigator with the practice of thinking through investigations using a step-by-step
process.
Proof within a Balance of Probabilities
As mentioned above, the balance of probabilities is the civil court standard of proof that is less
onerous than the criminal court standard of proof beyond a reasonable doubt. For something to
be proven within a balance of probabilities means that it is more likely than not to have occurred.
On a scale of equal balance, if the likelihood is more than 50% that something occurred, the test
of being “within a balance of probabilities” has been met. In most cases, if the criminal test of
proof beyond a reasonable doubt has been met, that same evidence presented at a civil trial is
likely to meet the required threshold of being within a balance of probabilities (Allen, 1991). It is
important for a criminal investigator to understand that, even though there may not be enough
evidence to meet the requirement for a criminal charge or establish proof beyond a reasonable
doubt, the evidence may still be successful in establishing civil liability within a balance of
probabilities. The possibility of civil action makes it important for investigators to remain
diligent in collecting and preserving evidence, even if they believe there will not be a criminal
charge proceeding.
The Adversarial System
In the trial of a person charged with an offence in a criminal court proceeding, the judge will
hear the evidence and arguments presented by both the prosecution and the defence. The
prosecution and the defense exist in court in an adversarial relationship with the onus resting
with the prosecution to prove the facts of the case beyond a reasonable doubt. The defence may
challenge the evidence, question the testimony and the credibility of witnesses, and present
alternate theories of events or evidence, where the accused person could be considered not
responsible or sometimes less responsible for the alleged offence. The facts required to be
proven will vary depending on the offence being alleged; however, the prosecutor’s task to
achieve a conviction requires that every element of the charge is proved beyond a reasonable
doubt.
As an investigator, you will often work in partnership with the prosecutor assembling evidence
to be presented in court. However, once in court, the police are merely witnesses for the court
and do not play active role in the prosecution of an accused. Police investigators are not
adversaries to the defence or the accused and should not consider themselves as such. Very often
in court, a police investigator will have their evidence aggressively challenged by the defence
lawyer in a very adversarial manner, and it will certainly feel as if the investigator is being
challenged as an adversary. It is sometimes even a defence strategy to provoke the police
investigator into a confrontation where they take an adversarial stance against the defence of the
accused. In these cases, it is important for an investigator to remember that their credibility as an
objective investigator can be compromised by the demonstration of an adversarial attitude or
demeanor in court. This is not to say that an investigator must be submissive to the defence
providing evidence in an objective, respectful, and balanced manner is the key.
To share some advice once provided to this writer by a seasoned senior investigator:
Your job ends on the court house steps. Do your investigation and take your evidence to
court. Give your testimony and your job is done. Let the court make their decision and the
case is done. If you allow yourself to take ownership of every decision the court makes, you
will not last as an investigator. Let your job end on the court house steps,” (Fookes, 1973).
Police investigators are officers of the justice system, independent to the crown prosecutor’s
office. Police investigate and collect the evidence, and the crown prosecutor presents the
evidence collected by the police to the court. The crown prosecutor does not and should not
direct or interfere with police investigations. In Canada, this concept of independent functions
between the police and the prosecutor’s office is sometimes misunderstood. This misconception
can sometimes happen due to our exposure to the American justice system where district
attorneys, as prosecutors, do become very involved in directing the investigative processes in
American jurisdictions.
