Frontline Justice by Pascal Lévesque

Author:Pascal Lévesque
Language: eng
Format: epub
Publisher: MQUP
Published: 2020-01-21T16:00:00+00:00

5

Can Breaches Be Demonstrably Justified

under Section 1?

“The summary trial violates the Charter but it could be justified under section 1.” For twenty years (1994–2014), this has been the official mantra. That assessment is based on scholarly work1 and on a legal opinion provided in 1997 during the review of military justice chaired by former Chief Justice Brian Dickson.2 No new official position would change that state of affairs until 2015, when Bill C-71 (followed by Bill C-77 in 2018) – both suggesting an entirely new approach – was tabled before Parliament. In the meantime, the right to a fair trial has evolved significantly in Canadian law.

Initially, section 1 was used as a guideline to identify potential options of modification on various aspects of the summary proceedings to better sustain a potential constitutional challenge.3 More recently, commentators have suggested that, considering the evolution of law, summary trial breaches of the Charter cannot be saved under section 1.4

There are four aspects in which the Canadian summary trial system breaches the Charter: section 7 (right to counsel; absence of transcript), section 11(d) (trial fairness, impartiality, judicial independence), and section 15 (inequality of treatment between ranks). Can these breaches nevertheless be justified?

Section 1 of the Charter reads as follows:

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