Section 11 – General: legal rights apply to those "charged with an offence"
11. Any person charged with an offence has the right:
- to be informed without unreasonable delay of the specific offence;
- to be tried within a reasonable time;
- not to be compelled to be a witness in proceedings against that person in respect of the offence;
- to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
- not to be denied reasonable bail without just cause;
- 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;
- has the right 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;
- 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;
- 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.
The Canadian Bill of Rights includes a number of substantive rights similar to those under section 11, but they are not all expressly limited to persons “charged with an offence”. The International Covenant on Civil and Political Rights, binding on Canada, also gathers together similar rights related to the penal process (largely at Articles 14 and 15), again with the same caveat.
Individual rights protected under the various provisions of section 11 of the Charter can receive residual protection under section 7.
For commentary on the purpose of the various rights under section 11, see the individual section. 11 entries corresponding to those rights. Supreme Court jurisprudence explains the purpose of section. 11 generally as protecting liberty and security interests of persons accused of crimes, while noting that it is not the sole source of such protection under the Charter (R. v. Kalanj,  1 S.C.R. 1594). With respect to the opening words of section 11, “charged with an offence”, the Supreme Court has taken an interpretive approach that seeks to “harmoniz[e] as much as possible” all of the sections of section 11 (see R. v. Potvin,  2 S.C.R. 880, page 908 and R. v. MacDougall,  3 S.C.R. 45, paragraph 11).
Section 11 provides a number of rights to those persons who are "charged with an offence". Therefore, the section will only apply in situations where a person falls within the meaning of this phrase.
In general, a person will be considered to be “charged with an offence” if subject to proceedings that are, by their very nature, criminal proceedings, or potentially subject to "true penal consequences" (R. v. Wigglesworth,  2 S.C.R. 541). A proceeding is criminal by nature when it is aimed at promoting public order and welfare within a public sphere of activity (Wigglesworth, at page 560; Martineau v. Canada (Minister of National Revenue),  3 S.C.R. 737 at paragraph 21). A “true penal consequence” will arise from
“imprisonment or a fine that by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within [a] limited sphere of activity” (Wigglesworth, supra at page 561; and see Martineau, supra at paragraph 57). The Supreme Court has rejected criticisms that these tests are unclear or circular. Rather it views the tests as asking distinct questions that evaluate the two different ways in which a person could be considered as being charged with an offence for the purpose of section 11:
“[t]he criminal in nature test focuses on the process while the penal consequences test focuses on its potential impact on the person subject to the proceeding” (Guindon v. Canada,  3 S.C.R. 3, at paragraph 50 and see generally at paragraphs 48-50).
Proceedings of an administrative — private, internal or disciplinary — nature for the protection of the public in accordance with the policy of a statute, are not criminal. (Martineau, supra at paragraph 22). Furthermore, only rarely will proceedings that are not criminal by nature under the first branch of the Wigglesworth test give rise to true penal consequences under the second branch. In Wigglesworth, where proceedings were not criminal by nature, violation of the second branch was found in an unusual situation where a non-criminal tribunal was given the power to impose imprisonment (Wigglesworth, supra at pages 563-4; Martineau, supra at paragraphs 57-8; Guindon, supra at paragraph 46).
A person is "charged with an offence" when an information is sworn alleging an offence or where a direct indictment is laid (Kalanj, supra at page 1607).
There is early jurisprudence suggesting that a person in a post-conviction stage of proceedings related to an offence is no longer considered as being “charged with an offence” and thus that the rights under section 11 generally would have no application at this stage (R. v. Lyons,  2 S.C.R. 309 at page 353 per LaForest J. for the majority; see also Potvin at pages 908-9 per Sopinka J. for the majority). This perspective on engagement of section 11, however, has been specifically reinterpreted, if not effectively overruled, by a unanimous Supreme Court of Canada in MacDougall at paragraphs 10-18. The Court in that case called for a more generous and less technical approach to “charged with an offence”, interpreting the concept to apply both to the pre-conviction and post-conviction stages. MacDougall indicates that specific section 11 rights available to a person who has been charged with an offence vary with the stage of proceedings, with different rights attaching to the individual as he or she moves through the process. Thus, while certain section 11 rights cannot be enjoyed post-conviction, this is dependent on the nature of the individual section 11 protections and not on the basis that section 11 rights generally do not apply at this stage.
The Supreme Court has subsequently analyzed certain section 11 rights in respect of post-conviction proceedings, stating that there is “no doubt” that section 11 applies (R. v. Rodgers,  1 S.C.R. 554, at paragraph 58, analyzing sections 11(h) and (i) in post-trial DNA applications). The Court has gone on to find a section 11(h) violation at the post-conviction stage in respect of parole entitlements (Canada (Attorney General) v. Whaling,  1 S.C.R. 392).
Courts of appeal have found that revocation or variance of a conditional sentence does not engage section 11 of the Charter, in part relying on the indication in Lyons that section 11 does not apply at the sentencing stage of the criminal process (R. v. Casey (2000), 128 O.A.C. 185, leave to appeal refused,  S.C.C.A. No. 382) and also on the basis that such orders merely affect the manner in which an existing sentence is served, rather than constituting proceedings in respect of an offence (Casey, supra; R. v. Whitty (1999), 24 C.R. (5th) 131 (Nlfd. C.A.)). Query whether the holdings in these cases, or at least certain of the reasons given, are open to question based on the more generous approach to section 11 indicated in later jurisprudence, including the implications of the decision in Whaling, supra.
Extradition proceedings do not engage the protection of section 11, as a person in that context is not charged with an offence by a government in Canada. (Canada v. Schmidt,  1 S.C.R. 500, Argentina v. Mellino,  1 S.C.R. 536).
“Person” in the opening words of section 11 includes a corporation and thus corporations are capable of benefitting from at least certain section 11 rights (R. v. C.I.P. Inc.,  1 S.C.R. 843).
2. Charged with an offence – Criminal by nature
Proceedings that are criminal in nature are those of a public nature intended to promote public order and welfare within a public sphere of activity (Wigglesworth, supra at page 560). This is to be contrasted with
“[p]roceedings of an administrative nature…[which] are primarily intended to maintain compliance or to regulate conduct within a limited sphere of activity” (Guindon, supra at paragraph 45).
The question of whether proceedings are criminal in nature is not concerned with the nature of the conduct giving rise to the proceedings, but with the nature of the proceedings themselves. Conduct is capable of giving rise to both criminal and non-criminal consequences; the fact that conduct giving rise to non-criminal proceedings also may constitute a crime does not make the proceedings themselves criminal in nature (R. v. Shubley,  1 S.C.R. 3; Guindon, supra at paragraph 68).
Supreme Court jurisprudence has referred to three considerations that may be helpful in determining the criminal or non-criminal nature of a proceeding: the objectives of the legislation, the objectives of the sanction and the process leading to the imposition of the sanction (Martineau, supra at paragraph 24; Guindon, supra at paragraph 52).
Proceedings for offences in the Criminal Code, the Youth Criminal Justice Act, the Controlled Drugs and Substances Act, and quasi-criminal offences under provincial legislation are the type of proceedings that are criminal in nature (Guindon, supra at paragraph 64). Indicators that the process is criminal in nature include whether the process involves the laying of a charge, an arrest, a summons to appear before a court of criminal jurisdiction, and whether a finding of responsibility leads to a criminal record. Other indicators are the use of words traditionally associated with the criminal process, such as “guilt”, “acquittal”, “indictment”, “summary conviction”, “prosecution”, and “accused”. So too is the fact that a penalty is imposed by a judge in a criminal court (Martineau, supra at paragraph 45; Guindon, supra at paragraph 63).
Although General Court Martial proceedings are primarily concerned with maintaining discipline and integrity in the Armed Forces, they also serve a public function by punishing conduct threatening public order and welfare, including offences under the Criminal Code and other Acts. As such, these proceedings are criminal in nature (R. v. Généreux,  1 S.C.R. 259).
The Supreme Court has ruled that civil contempt of court proceedings are not only of a private and civil nature, but involve an element of “public law”. It found that it was consistent with the Charter protection against self-incrimination to interpret the Quebec Code of Civil Procedure as not compelling a person subject to civil contempt proceedings to testify. However, the majority did not expressly find that civil contempt proceedings were criminal in nature so as to engage section 11. Only Lamer J., in a concurring minority opinion, expressly found that the Quebec provisions on civil contempt effectively created an offence and that section 11 was thus engaged (Vidéotron Ltée v. Industries Mirolec Produits Électroniques Inc.,  2 S.C.R. 1065). The Quebec provisions provided for the possibility of imprisonment and the applicability of section 11 to civil contempt could perhaps be an open question where imprisonment is not a possibility (see comments in Calgary (City) v. Chisan (2002), 32 M.P.L.R. (3d) 256 (Alta.Q.B.); see further the discussion under True Penal Consequences).
Whether a proceeding is criminal in nature does not depend on the actual penalty imposed. The Supreme Court has given the example of parking tickets, when imposed in conformity with the general criminal process (e.g., involving pleading guilty, contesting the fine before a judge, or prosecution by a Crown attorney) as engaging section 11 rights (Wigglesworth, supra at page 559; Guindon supra at paragraph 64). As such, section 11 has been found to be engaged by a speeding offence prosecuted by way of ticket under provincial motor vehicles legislation (R. v. Richard,  3 S.C.R. 525). By contrast, proceedings related to an automatic roadside driving prohibition for impaired driving under provincial motor vehicle legislation are characterized as administrative in nature, being concerned with the regulation of drivers and licensing, and the maintenance of highway safety (Goodwin v. British Columbia (Superintendent of Motor Vehicles),  3 S.C.R. 250); see however Sahaluk v. Alberta (Transportation Safety Board), 2017 ABCA 153 where the Alberta administrative licence suspension regime was found to engage s. 11 of the Charter because of the direct link between the administrative licence suspensions regime and the criminal charges and the essentially punitive nature of the administrative licence suspensions.
Professional and employment disciplinary proceedings are generally not criminal in nature (Trimm v. Durham Regional Police,  2 S.C.R. 582, Pearlman v. Manitoba Law Society Judicial Committee,  2 S.C.R. 869). The same is true of prison disciplinary proceedings (Shubley, supra).
Civil forfeiture proceedings have been found not to be criminal in nature (Martineau, supra; Ontario (Attorney General) v. Chatterjee, (2007), 282 D.L.R. (4th) 298 (Ont. C.A.), appeal to the Supreme Court on other grounds dismissed,  1 S.C.R. 624). This finding has been made as well in respect of the imposition of administrative monetary penalties. The fact that an administrative monetary penalty includes a due diligence defence or a mental element that must be proved — even one referring to “culpable conduct” — does not make the proceeding criminal in nature (Guindon, supra at paragraphs 71-72 and generally at paragraphs 63-72; and see further below under the discussion of True Penal Consequences).
3. Charged with an offence – True penal consequences
True penal consequences will arise from imprisonment or a fine that by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity (Wigglesworth, supra at page 561).
Imprisonment is always a true penal consequence. If a provision includes a possibility of imprisonment, it will be criminal and so engage section 11 regardless of whether imprisonment is actually imposed (Wigglesworth, supra at page 562; Guindon, supra at paragraph 76). Proceedings in the military system of justice — trial by General Court Martial under which imprisonment is a potential sanction — engage section 11 under this test even if it had been found that the proceeding in question was not criminal in nature (Généreux, supra).
Lower court jurisprudence indicates that where civil contempt of court proceedings can lead to imprisonment, section 11 of the Charter is engaged (Schitthelm v. Kelemen, 2013 ABQB 42, paragraph 26; Potratz v. Potratz, 2015 BCSC 1608, paragraph 148). However, section 11 has no application in the first stage of contempt proceedings brought pursuant to a statutory authority, as this stage of the proceeding is merely to determine whether a case ought to be stated to a court and does not amount to facing a true penal consequence (McNaught v. Toronto Transit Commission et al. (2005), 249 D.L.R. (4th) 334, paragraph 49 (Ont. C.A.), leave to appeal to S.C.C. refused,  S.C.C.A. No. 133).
On when a monetary sanction imposes a true penal consequence, the Supreme Court has stated:
A monetary penalty may or may not be a true penal consequence. It will be so when it is, in purpose or effect, punitive. Whether this is the case is assessed by looking at considerations such as the magnitude of the fine, to whom it is paid, whether its magnitude is determined by regulatory considerations rather than principles of criminal sentencing, and whether stigma is associated with the penalty: see, e.g., Canada (Attorney General) v. United States Steel Corp., 2011 FCA 176, 333 D.L.R. (4th) 1, at paragraphs 76-77. [Guindon, supra at paragraph 76]
While the magnitude of a monetary sanction can be a factor in determining whether there is a true penal consequence, it is not determinative. If the amount is out of proportion to the amount required to achieve regulatory purposes, this is a consideration weighing in favour of a finding of a true penal consequence. However, the imposition of even very large monetary penalties will not necessarily lead to a finding that section 11 is engaged under this factor. Sometimes significant penalties are necessary in order to deter non-compliance with an administrative scheme (Guindon, supra at paragraph 77, citing Rowan v. Ontario Securities Commission, 2012 ONCA 208, at paragraph 49). In R. v. Samji, 2017 BCCA 415, (application for leave to appeal to the SCC, 2018-01-30) the majority of the Court found that the $33 million administrative monetary penalty imposed was not a true penal consequence. The concurring judgment reasoned that the administrative monetary penalty actually imposed is irrelevant to determine if s. 11 is engaged, rather the analysis should focus on whether the provisions of the statutes under which the proceedings took place are criminal in nature or allow for a true penal consequence.
Applying the above-noted considerations, courts have not been receptive to arguments that administrative monetary penalties impose true penal consequences (Guindon, supra; United States Steel Corp., supra; Rowan, supra; see also Lavallee v. Alberta Securities Commission, 2010 ABCA 48). This is true as well of civil forfeiture mechanisms (Martineau, supra; Chatterjee, supra). Even if the amount of a monetary sanction has a deterrent purpose, this will not make it punitive if the amount is not determined under general criminal sentencing principles and no stigma comparable to criminal conviction results (Martineau, supra at paragraph 65; Guindon, supra at paragraph 76).
The imposition of driving prohibitions, vehicle impoundment, and monetary penalties under provincial automatic roadside prohibition measures for impaired driving were found not to constitute true penal consequences (Goodwin, supra).
The Supreme Court has found that proceedings in respect of inadmissibility to Canada under the Immigration and Refugee Protection Act are neither criminal nor penal (Tran v. Canada (Public Safety and Emergency Preparedness),  2 S.C.R. 289, para. 43). Similarly, courts have determined that deportation from Canada is not a true penal consequence (Hurd v. Canada (Minister of Employment and Immigration),  2 F.C. 594 (C.A.); Mahjoub (Re), 2013 FC 1097).
Professional and employment discipline, in the absence of the potential for imprisonment, does not involve the imposition of true penal consequences (Trimm, supra; Pearlman, supra). Prison discipline also does not impose true penal consequences, even where the sanctions may involve segregation and the forfeiture or suspension of sentence remission (Shubley, supra).
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