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4 Judge discretion.docx

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Carleton University
LAWS 2301
Diana Young

Judicial discretion - We don’t want judges to have the power to make new laws, but they need discretion and to be able to interpret law because there are many cases that fall before a judge and there can’t be a law made for every single possible case • Also they need to be able to react to changes in times and therefore new issues arise, new technology, new diseases etc - Some statues are deliberately general (charter of rights and freedoms) because it’s supposed to allow courts to exercise a certain amount of control/supervision over Parliament - Judicial discretion is important because the legislature can’t foresee every possibility Judges - Judges are not elected, they are appointed. - They aren’t subject to any forms of democratic accountability - They come from upper class backgrounds. This can raise question of subjectivity/arbitrariness because the application of the law isn’t consistent More concern over judicial discretion - Why are we worried about judge discretion more than police or Crown discretion? • Because courts are public. When a judge makes a decision and exercises his discretion, the reports are published so it’s a more visible exercise of discretion • Because the impact of their decision may impacts everyone in the future and because it sets the precedent for future cases • It can also destabilize the rule of law Control over judicial discretion - There are many ways judicial discretion is limited • Judges are limited by precedent (previous decisions) • Limited by rules of interpretation  One of these is that criminal law should be interpreted narrowly because freedom is at stake. There is less room for discretion • Draft legislation precisely  The more clear and precise legislation is, the less room there is for discretional decisions • Law of obscenity  Obscenity= what is obscene  What is racy or disturbing  The border (customs) may keep things they find obscene  Some people find different things obscene, and the definition of what is obscene changes a lot over time  They are trying to distinguish morality from obscenity R v. Butler - Main case relating to pornography (1992). Very influenced by some feminists who regarded pornography as being because they felt that it exploited women and encouraged negative attitudes towards women and actual sexual violence towards women. - The decision in butler was to connect obscenity not to morality but to social harm (against women) - LEAF intervened in Butler saying what they should do is interpret the obscenity section in a way that isn’t about the older/traditional ideas of sexual morality but that addresses the issue of harm. The SCC more or less accepted LEAFS idea - You have to show that there’s some sort of harm that is being avoided by suppressing a particular type of expression. The test is what Canadians would tolerate other Canadians being exposed to given the degree of harm that may result • Sex coupled with violence will almost always be obscene • Sex that is dehumanizing/degrading may be depending on the risk • Sex that isn’t violence/degrading/dehumanizing will usually not be undue exploitation unless there is a child involved Little Sisters Bookstore - Litter Sisters book store catered to lesbian clientele.Alot of their material was of sexually explicit nature. - Ran into problems because the CustomsAct allowed customs to hold material at the border that they deemed to be contrary to the laws of obscenity and the importer
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