Distinguishing Charter Rights in Criminal and Regulatory Investigations: What’s the Purpose of Analyzing Purpose?

Abstract

This article critically evaluates one of the main justifications for affording persons accused of regulatory offences constitutional protections different from those afforded to persons accused of criminal offences. It is only the latter who enjoy robust constitutional protection against self-incrimination and to privacy. This difference has been justified on the basis that there are different purposes behind regulatory and criminal investigations. The former are supposedly intended to ensure compliance with the law whereas the latter are supposedly intended to gather evidence for prosecution. This article challenges the validity of the justification based on purpose. The author suggests that focusing on investigatory purpose has no relevance to the interests protected by the right to privacy, offers no real protection against the admission of unreliable evidence, and undermines the very principle it is said to protect: the principle against self-incrimination. Moreover, the justification based on purpose misunderstands the purposes of both regulatory and criminal investigations and ignores the reality that in many instances they share the same purpose.