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Public Law II February 3/06 • Letter to editor assignments to • Know the Charter be handed back after class • Know the Oakes test for today Section 1 • What will be on the mid-term • For the cases we’ve studied: exam? – What is the impugned – Objective questions only (eg. legislation? Matching, fill-in-the-blanks) – Was it upheld or struck down? – Know an overview of human – What does the case teach us rights in Canada, and events about how the Court interprets leading up to the Charter the Charter? – Know the main human rights cases prior to the Charter. Legal Rights • S.7: right to life, liberty, & – c) habeas corpus (to be freed security of person unless if illegally detained) deprived thereof through • 11. Persons charged with fundamental justice offences have the right – a) to be informed reasonably • s.8: Unreasonable search and quickly of the charge seizure is forbidden. – b) to a trial within a • 9. Arbitrary (illegal) detention reasonable time or imprisonment is forbidden. – c) not to be a witness against • 10. Everyone who is arrested or oneself detained has the right: – d) to be presumed innocent – a) to be told why immediately until proven guilty before an independent and impartial judge – b) to retain a lawyer and be told of this right Legal Rights (2) – e) to bail unless unreasonable • Today: – f) to trial by jury if liable to 5 – Singh: S. 7, & and yrs in jail fundamental justice in • 12. No one can be subjected to Canadian Bill of Rights cruel or unusual treatment or – Therens: right to counsel: S. punishment. 10(b) (in text) • 13. Evidence given by a witness – B.C. Motor Vehicle Act Case: S. 7: substantive or in court can't be used against procedural? that witness later on. – Valente: S. 11(d): right to ind • 14. Everyone has a right to an & impartial tribunal (in text) interpreter. – Askov, Rodriguez, Mills, and Edelson article – Can Fdn for Children case Singh (1985) • Refugee determination process • Wilson: decided under s. 7 of – pre-Singh: those not approved Charter. “Everyone” covered. abroad apply at airport; – Is it life, liberty or sec of examined by an officer; person at stake here? Sec of transcript sent to Ref St Adv person. Comm. Rec to Min. Ap – Is this violation in accord with allowed to Ap Bd; can det with fundamental justice? No. minister’s evidence and • Fundamental justice nat transcript, & no oral hearing justice prin of “hear both • Both Charter & Bill of Rights sides.” App has a rt to issues know case against self, – court requested additional and reply to it. Therefore, submissions on Bill. oral hearing required. – Impugned: ref det process – S. 1: crown presented no under Imm Act arguments. Singh (2) • Beetz: Bill of Rights still there • After Singh: – right to “a fair hearing acc to – Fed gov’t totally unprepared fundamental justice to det – backlog in ref cases: 3 yrs rights and obligations” violated – some took advantage of – Beetz strikes down part of backlog; some bona fide Immigration Act; other judges refugees stopped at border concur (Charter does not apply outside) – decision resurrects the Bill of – May 1987: C-55, “safe 3rd cty” Rights. Beetz also refers to – C-84: apprehend ships at sea; statutory bills of rights as penalty for assisting ref applicants “constitutional or quasi- who had not applied abroad constitutional.” – tremendous opposition to bills – CRDD created, but members mostly patronage appointments then Therens (1985) • 1982: Therens collided with • Is preventing contact with tree in Moose Jaw; taken to counsel a “reasonable limit?” police station for breathalizer – No: not “prescribed bylaw,” test. Not told of right to and there’s time in 2 hrs. counsel. • Would admitting the evidence – If he’d refused test, would bring admin of justice into have been charged with disrepute? (s. 24 - 2)? refusing: same penalty – Majority (Estey): yes • Police didn’t inform because – Dissent on this issue: Le Dain operating on Bill of Rts says admit evid here; exclude precedents: requesting a in future. McIntyre dissented breath’zer test not “detention.” too: not to admit brings admin • Le Dain: B of Rts precents of justice into disrepute. don’t necessary apply to Ch • Aftermath: 1000s of cases dropped B.C. Motor Veh Act Case (1985) • 1982: BC gov’t created an • Procedural: life, lib and sec of “absolute liability” offence: if person can always be limited, if you drive with license correct procedures followed suspended, automatic jail term. • Substantive: in some cases, Mens rea not applicable. even correct procedures cannot • Issue: does an ab liab offence justify limiting life, lib or sec of violate “fund justice” in s. 7 of person Charter? • debates in Parliament: framers • BC gov’t sent ref question to wanted S. 7 interpreted in a BC CA in 1982; app’d to SCC procedural way; fear of repeat • Should “fundamental justice” of “Lochner era” in U.S., where be interpreted in a procedural or U.S. js interpreted “due substantive way? process” in a substantive way, and stopped social welfare reforms B.C. Motor Veh Act Case (2) • Lamer: legislative history • S. 1: it’s possible that should be admitted but the crown could prove given “minimal weight,” a reasonable limit, but as no proof that a maj of MPs and Senators agree crown did not present with the views of some any evidence on this • Lamer: combination of an issue. absolute liability offence, • Therefore, a and a jail term, results in a “reasonable limit” has violation of fundamental not been established. justice. Valente (1985) • Shortly after Charter came into effect, Valente went to trial, charged with dangerous driving causing death (criminal code offence). He claimed that the Provincial Court judge he appeared before was not an “independent” tribunal under Charter S. 11(d). The SCC declared that Prov. Ct. judges in Ontario are independent, even though the guarantees of their independence are different from those for Superior Court judges. • The decision established that there are 3 “essential conditions” for jud ind: – security of tenure: there must be impartial inquiry before a j can be removed – financial security: legislated right to a salary – institutional independence: judges must control those aspects of case flow directly affecting adjudication Askov (1983-1990) • Issue: 11(b) rt. to trial within a • In this case: reasonable time – length of delay is unreasonable • In this decision, court – the cases of Askov et al have developed the “Askov” test for been prejudiced unreasonable delay. Consider – explanation: Delays in Peel – length of delay are shocking. Relies on Carl Baar’s evidence – explanation of delay – no clear waiver of right – was there a clear waiver of right to trial within reasonable • Baar’s 1993 article commenting time? on Askov: – has the delay prejudiced – judges misinterpreted the stats accused (hurt the case of the (Can Bar Rev 1993) accused)? Rodriguez (1993) • S. 241(b) of criminal code: • Majority (5) Sopinka prohibits assisted suicide. – no infringement of any • Rodriguez: dying of Lugerrig’s rights. Even if s. 15 disease. Wanted declaration that violated, s. 1 saves. 241(b) violates her s. 7 right to security of person, & s. 12 rights • Minority: (3 dec’s) (cruel treatment) & s. 15 rights • McLachlin & L’Heureux-Dubé: (equality), because it prevents her from arranging an assisted suicide s. 241(b) violates fundamental once life becomes unbearable, and justice (s. 7), & can’t be saved she will be physically unable to end by s. 1. her life. • Lamer: s. 241(b) violates s. 15, & can’t be saved by s.1. Mills (1999) • Issue: Privacy vs. right to fair trial • C-46: requires • O’Connor decision (1995): Ct – application in writing by requires 2-step process. 1. Acc’d accused for pte records to show pte rec’s likely to be of – judge holds in camera hearing value in defence. 2. Judge will re whether to review release records if satisfied that: – if necessary, judge reviews the Private record is necessary for private record full defence – judge decides whether record – Extent of reasonable or parts should be provided to expectation of privacy allows accused – Request for record not based – judge can order restrictions on on bias media publication – Victim’s dignity or sec of • Court: advocates dialogue with person not unreasonably legislature affected • C-46 is acceptable balance • Bill C-46 (1997): did new between privacy and rt to fair trial legislation comply with O’Connor? Canadian Foundation for Children, Youth and the Law v. Canada (2004) • Impugned: S. 43 of Crim Code – What’s “reasonable” is that justifies “reasonable use of clear enough to pass muster. force” by parents and teachers What’s reasonable is against children. determined by international • Foundation sought declaration treaty obligations, that S. 43 violates ss. 2, 12 & circumstances, expert 15 of Charter. evidence, social consensus, • SCC: 6-3 charter violations can and case law. be upheld under s.1 (Oakes test – spanking is not “cruel and passed) unusual” (s. 12) • McLaughlin +5: S. 43 adversely – No violation of S. 15 affects security of the person, (equality). There’s no but fundamental justice is discrimination. A child’s protected. Force is limited by dignity not offended. what is “reasonable under the Children need guidance and circumstances.” discipline. Spanking case, cont’d • Dissenters • – Binnie • S. 43 violates s. 15 (equality). Children are marginalized, and their dignity is offended. However, S. 43 passes the Oakes test for parents. The objective of preventing criminalization of corporal punishment is important. Rights are minimally impaired because the law permits only minimal force. Overall, the good outweighs the harm. Not so for application to teachers: expectations are different. None of the Oakes test is passed for teachers. – Arbour: • S. 43 violates S. 7 of Charter (security of person). Fundamental justice is violated because the section is so vague. (What is reasonable force?) Therefore, the limit is not “prescribed by law,” as required by S. 1 of the Charter. – Deschamps • There’s a violation of S. 15 based on age. Children are vulnerable. The objective of giving parents & teachers reasonable latitude in nurturing children is important. There’s a rational connection between this objective and S. 43. However, children’s rights are not limited as little as necessary, and overall, the current wording of S. 43 may do more harm than good. Therefore, the Oakes test isn’t passed for Deschamps.
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