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Legal Rights (PowerPoint)


									                       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
  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
                     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
            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.
                    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
   – 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)
                   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
                                           • 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

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