This chapter analyses the pervasive impact of the Charter on the Canadian criminal justice system. Active judicial interpretation of Charter rights has put in place distinctive constitutional standards of substantive law, including those of fault, and struck down oppressive laws for arbitrariness and overbreadth. Also examined are new standards for police powers to stop, search, detain and interrogate, fair trial rights such as the duty of full Crown disclosure, and for assessing mandatory minimum sentences. This chapter describes and welcomes a robust exclusionary discretion for evidence obtained in violation of the Charter. It is suggested that the Canadian Charter standards are no panacea and are sometimes too weak but that they have often provided a welcome balance to the expedient lure of law-and-order politics.
Contemporary criminal law is best understood as a species of constitutional reflection. This chapter begins by considering the way in which substantive criminal law has become a laboratory for the constitutional – a site for reflection on central constitutional themes, including sovereignty and state violence; the anthropology of the legal subject; the rule of proportionality; and the relationship between judgment, discretion, and mercy. It then explores how issues that have long troubled the criminal law have translated into a constitutional register, examining constitutional debates surrounding the limits of the criminal law, requirements for fault, the structure of criminal defences, and standards for punishment. Ultimately, the chapter identifies a challenging irony: that despite this shift in the imaginative relationship between criminal law and the larger legal structure, whereby criminal law has been tethered to questions of constitutional justice, much criminal justice is still left to be done in spite of the law.
This chapter examines the role of U.S. constitutional law in shaping criminal justice practices at all levels of government, focusing on the past five decades of concentrated activity. It begins with an overview of the most dramatic changes in the criminal justice system in the United States since the 1960s, including technological innovations in surveillance that have transformed the nature of investigative law enforcement; the rise of plea bargaining over adjudication in the disposition of criminal cases; issues of race in street policing and criminal justice outcomes in the post–civil rights movement era; and the relationship between mass incarceration and procedural rights. It then analyzes these four transformations, with particular emphasis on the limits of constitutional remedies and how criminal procedure is intertwined with substantive criminal law.
This chapter examines the place of the right to freedom of speech and expression within Indian constitutionalism. After reviewing the classical normative arguments for free speech, it considers how the domain of speech is related to colonial continuity, sedition, and public order. It discusses the scope of Article19(1)(a) of the Indian Constitution with respect to free speech, as well as the Indian Supreme Court’s successes and failures in its efforts to expand the domain of speech. It explores the democracy argument as the primary justification used by the courts in free speech cases, and its consequences. Finally, it looks at the standards for determining reasonableness, hate speech, and obscenity, and argues that the idea of a deliberative democracy must be supplemented with the concept of agonistic politics to enrich and strengthen the free speech tradition that has evolved in the past six decades.
This chapter examines the divide between traditional criminal law and the law governing regulatory offenses. It examines four seminal theoretical accounts invoked over the past 200 years to explain and justify the differences in the norms and practices of enforcement related to criminal law and the law of administrative sanctions. Each account is based on a vision of the proper mission of the state in organizing and wielding coercive power over its citizens: classical liberal state, authoritarian welfare state, egalitarian-liberal welfare state, new regulatory state. It highlights foundational issues in political theory and moral philosophy, including the legitimate basis for criminalization and state punishment, the individual’s relationship to the state and society, and use of non-criminal sanctions in mitigating the effects of overcriminalization. It addresses the relationship between regulatory enforcement and pursuit of justice and the manner in which the state should motivate an individual to comply with regulatory norms.