Has Everything Been Decided? Certainty, the Charter and Criminal Justice

34 Supreme Court Law Review (2d)

28 Pages Posted: 24 May 2012 Last revised: 30 Oct 2013

See all articles by James Stribopoulos

James Stribopoulos

Superior Court of Justice (Ontario) / Formerly Osgoode Hall Law School, York University

Date Written: 2006

Abstract

My focus in this short paper will be on Justice Moldaver’s suggestion that when it comes to criminal justice and the Charter the governing principles are now firmly established and that the time for experimentation has mostly come to an end. I will respond to that claim by drawing on the Court’s Charter judgments from this past year. As noted, there were very few constitutional cases that touched on criminal law in 2005. At least superficially this would seem to support Justice Moldaver’s claim. As will become obvious, however, the numbers alone can be quite misleading. They tell only a very small part of the story. What matters much more in drawing out larger lessons from last year’s cases and forecasting future trends is the substance of those decisions that the Court did hand down. Here, my focus will be on three of the Court’s judgments: Pires & Lising, Henry and Orbanski & Elias. Together these three cases serve to illustrate that despite occasional claims to the contrary by observers like Justice Moldaver, the reality is that there continues to be much uncertainty surrounding a number of very basic Charter issues relating to the criminal justice system.

Reprinted with the permission of LexisNexis

Keywords: charter, court, judgment

JEL Classification: K00, K40, K41, K42

Suggested Citation

Stribopoulos, James, Has Everything Been Decided? Certainty, the Charter and Criminal Justice (2006). 34 Supreme Court Law Review (2d). Available at SSRN: https://ssrn.com/abstract=2061168

James Stribopoulos (Contact Author)

Superior Court of Justice (Ontario) / Formerly Osgoode Hall Law School, York University

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