The Everyday Practice of Canadian Criminal Law: The Criminal 'As of Right' Jurisprudence of Justice Louise Charron

Abstract

From admitting evidence, to evaluating the credibility of witnesses, to delivering jury instructions, to determining fit sentences, trial judges play an important role within the Canadian criminal justice system. Yet their work is often far-removed from decision-making at the Supreme Court of Canada. Through a careful reading of the practical issues that arise in criminal of decisions, this paper reflects on the influence that Justice Louise Charron’s considerable experience as a trial judge had on her approach to appellate review in criminal cases. Criminal as of right decisions, where there has been a dissent in the Court of Appeal on a question of law or where the Court of Appeal has reversed the acquittal of an accused person, provide a window into the everyday practice of Canadian criminal law. Given that they are not controlled by a leave to appeal panel and vetted for their public importance, these are cases that often turn on practical points of law, such as assessing jury instructions or clarifying difficult and complex rules. The goal of this paper is to use this heterogeneous body of cases to explore the extent to which experience as a trial judge may affect decision-making at the Supreme Court and, in the process, to better appreciate the jurisprudential contributions of Charron J, one of the Court’s most prolific writers in this area of law. The paper proceeds in two parts. First, it argues that Charron J’s experience as a trial judge may account for her, at times, deferential approach to the work of trial judges. Second, it argues that her experience as a trial judge helps explain her concern with clarifying difficult and complex rules for trial judges. This paper also calls for further empirical research into the relationship between judicial experience, decision-making, and the daily workings of the Supreme Court of Canada.