Criminal Justice in the McLachlin Court
Many More Kudos Than Brickbats
This chapter is a review of the Court’s major rulings on substantive law, police powers, trial procedure, and evidence. Many are the Court’s major pronouncements as guardians of the Canadian Charter of Rights and Freedoms. However there are also many important non-Charter decisions. My conclusion will be that Canadians should be generally proud of our highest Court’s often quite distinctive jurisprudence. Our justices are all serious, hard-working, and thoughtful. Some justices, particularly McLachlin C.J. and Binnie and Charron JJ., are especially clear and eloquent in their expression. The Court has helped ensure that we have a criminal justice system that tries to protect the procedural and fair trial rights of the accused against the tyranny of the majority. Procedural and fair trial rights of those accused of crime tend to be unpopular until the moment you, or someone you care about, gets charged. It will be suggested that there is, in some cases, a need for clarification, and in other cases, that law and order politics have crept into several key rulings of the McLachlin Court which ought to be reconsidered. I will express strong criticism of the Court’s rulings in the following areas: the right to discipline children; the meaning of detention for section 9 and 10 Charter purposes; limits on police interrogation; denying bail to maintain public confidence; and rape shield laws.
Don Stuart is a professor, Faculty of Law, Queen’s University.