Mind the gap: Canada's different criminal and constitutional standards of fault

This paper critically assesses the gap between Canada's criminal law standards of fault articulated in the 1950s and 1970s and its constitutional standards of criminal fault articulated in the 1980s and 1990s. This gap is explained in terms of the Court's ambivalence about subjective fault principles as manifested by its acceptance of criminal negligence. It is also explained by the Court's unique treatment of section 7 of the Canadian Charter of Rights and Freedoms as a right that, unlike any other right in the Charter, is only subject to reasonable limitation under section 1 of the Charter in extraordinary emergency situations. The paper then suggests that the gap between criminal and constitutional fault standards is not sustainable and can only be closed if the Court rethinks its approach to the limitation of section 7 rights. Maintenance of the gap may erode respect for common-law presumptions of subjective fault. If this occurs, Canada's apparently robust approach to the constitutionalization of fault will have actually diminished respect for and protection of subjective fault principles.