Developments in Criminal Procedure: The 1993-1994 Term

The 1993-94 Term concluded with the tenth anniversary of the Supreme Court's decision in Hunter v. Southam Inc. Hunter signaled that the Court was prepared to take a liberal and activist approach to Charter interpretation and that this would have important consequences for criminal procedure. In the decade that followed, the Court interpreted the Charter to impose due process restrictions on police powers and to provide procedural protections for the accused in criminal trials. In the last few years, however, many have detected a more conservative and deferential approach to Charter interpretation. This has been illustrated in recent decisions concerning the constitutionalization of fault elements in substantive criminal offences. It is not, however, inevitable nor necessarily desirable that a similar approach be taken when the Court reviews the conduct of police officers, prosecutors, judges and juries in the criminal process. This Term's criminal procedure decisions are assessed to determine whether the Court is backing away from Hunter and to explore how the Court's approach to substantive review has affected its decisions on criminal procedure. In this review I will assess first the Court's decision in Hunter with special attention to different criteria that can be used to evaluate its performance. Although it is a landmark case, Hunter remains controversial because there is no consensus about the Court's role under the Charter or in the criminal justice system. I will then examine this Term's decisions concerning investigative powers, with particular attention to a number of search and seizure cases that re-visit Hunter. Third, I will examine decisions concerning the conduct of criminal trials and appeals. I will focus on whether the Court is allowing its more deferential views towards regulating the substance of the criminal law influence its procedural decisions, or whether, following Hunter, it is imposing a due process model regardless of the particular substantive issues at stake. Finally, I will offer some conclusions about this Term's work in criminal procedure and what it may signal for the future.