Is There a Tyranny of the Charter in Criminal Justice and Security Policy?
Policy Options, Vol. 94, February 2007
5 Pages Posted: 4 Jul 2008
Date Written: February 1, 2007
Abstract
The Charter has had an important effect on criminal justice and security policymaking that was not anticipated in 1982. Nevertheless, there is not necessarily a tyranny of the Charter, in which security policy is dictated by the Charter. The Charter is most often applied against the actions of unelected police and prosecutors as opposed to elected legislatures. Even when laws are struck down under the Charter, the result has often been vigorous dialogue between courts and legislatures. There is no incompatibility between strong courts enforcing the Charter and strong governments implementing proactive criminal justice and security policies. The Charter should only smooth the sharp edges of broader criminal justice and security policy. Canada is doing a better job in developing a coherent and proactive security policy than a coherent criminal justice policy, but in both cases governments should resist the temptation of limiting their vision to attempting to predict or react to the Charter decisions of the courts.
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