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Canada (510,314)
Greg Flynn (95)
Lecture

Feb 24-25 2014, Poli Sci 3NN6

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Department
Political Science
Course
POLSCI 3NN6
Professor
Greg Flynn
Semester
Winter

Description
Started on: 2/6/14 9:40 AM C LASS N OTES FOR : P OLI S CI 3NN6 McMaster University, Winter 2014 M ONDAY , FEBRUARY 24, Y Life, LiberAND Security of the Person 1. Section 7 “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” - Applies to all natural persons within the country itself. 2. Who can claim benefit? a. Everyone - Section 7; while everyone would include things like corporations, - The only claimants are actually natural persons - Only individuals who can assert “life” b. Corporations • Artificial persons are incapable of possessing any of these meanings of a ‘person’ • Modified however in the case of R.V wholesale travel group Irwin Toy v. Quebec R v. Wholesale Travel - Corporation can assert a section 7 claim, but primarily as a defendant to criminal charges - Corporation can use a right in the negative sense - FACTS: Wholesale travel group is a travel agency, sold travel packages as “wholesale”, but were not “wholesale” but instead were retail a. Charged with false and misleading advertisement, contrary to the competition act b. Said that this violated their right of liberty. c. If a law is solely applicable to corporations and artificial persons have nothing on section 7. d. Corporate tax act, cannot assert that this violates section 7, because individuals are not subject to this act, but only corporations. c. Non-Canadians Singh v. Min emp. & Immigration - This is the case where 7 individuals were asserting the rights to have hearing - Argument: “These are people who are not Canadian citizens, who are illegal and should not get the same benefits” a. IF YOU ARE within the four walls of Canada, you can claim the benefit of the charter rights. 3. Limitations of LLSP a. Section 33 • If gov’t of Canada uses the notwithstanding clause can infringe upon your rights. Angie © McMaster University 1 Winter 2014 Started on: 2/6/14 9:40 AM • Esoteric: locking people up without cause. Assuming you used the notwithstanding clause. Significant power that the gov’t has if they choose to use it! b. Section 1 • Right can be violated if it’s justifiable in a free and democratic society to do so! c. Section 7 - “except” • If gov’t deprives you of your rights, liberty and security of person in accordance with principles of fundamental justice, then this is OK. • Act of gov’t that seeks to impose some form of incarceration is a limitation on liberty! • As long as they have due process in place, it’s OK to infringe on liberties! • It is a limitation to our rights, liberties and securities of person. 4. Definitions a. Life • Ambiguity of this concept when get to the beginning and endings of life R. V. Morgentaler (No.2) - Advocate and performer of abortion procedures in Canada - Right of a woman to choose her reproductive outcomes - In the 1970s, Dr. Morgentaler was performing abortions, charged criminally and convicted - Supreme court of Canada upheld conviction against Morgentaler: - Again performing abortions, Acquitted and sent back and Supreme Court of Canada struck down abortion laws. It is unregulated and no restrictions. - SUPREME COURT: The term everyone does not include a FETUS and therefore a fetus does not claim rights under section 7, however the Supreme Court was ambiguous whether the fetus could have any other rights under the charter of rights and freedoms. Tremblay v. Daigle [1989] - Daigle got pregnant and decided to have an abortion, and Tremblay went to the court and decided to have an injunction to prohibit her from having an abortion. - The injunction prohibits me from having an abortion in Canada, and she went to have an abortion in the United States. - Issue was now rendered irrelevant and the Supreme Court decided to hear this case and said that a fetus was not a human being. R .V Sullivan - Midwives, something went wrong and ended up in partial birth - Mother was rushed to the hospital - Midwives were both charged with criminal negligence causing death - A child has to be born alive and be separated from the mother alive. - It is only on Rodriguez V. BC [1993] - What about the end of life? - The right to die does not include the right to have assistance in death? - Someone physically unable to commit suicide is not allowed to have someone help him or her commit suicide. b. Liberty • Freed from physical restraint 2 Started on: 2/6/14 9:40 AM i. Freedom from physical restraint a. Any law that imposes a penalty if imprisonment whether mandatory or optional, liberty into question, viewed as an interference in liberty. b. Freedom from physical restraint Re: B.C Motor Vehicles Act - Sought to amend the statute a number of ways - Instead of going through the court cases, it referred to the legality of the act itself - True reference where the gov’t was seeking the court’s opinion on the constitutionality of the legislation - FREEDOM from physical restraint is not just incarceration, but any form of punishment that goes to constraints an individual behaviour or compels them to act in a particular fashion. It’s not just incarceration, but a broader perception of liberty.  What about a fine?  A fine is not a depravation of liberty  Once a person has been convicted and sentenced to a term of imprisonment, anything to alter such as increasing it beyond what the court initially imposed. • Two exemptions o Dangerous offenders designation  Allows the crown to apply after someone has served their sentence that the individual is a dangerous offender, and if they’re found to be a dangerous offender they stay in jail.  Protected under section 1  Intent to kill or dangerous o Long term offender o Two provisions in the criminal code, ii. Freedom from interference with fundamental personal choices R. v. Morgentaler (No.2) - Madam Justice Liberty expressed a larger view of “liberty” - Statement of the law persuasive it wasn’t binding - Liberty also included interference from fundamental choices, - The personal choice as to whether end a pregnancy or to go through with it Blencoe v. B.C (2000) 2SCR 307 - FACTS: Blencoe was a cabinet minister in the B.C cabinet who was accused of sexual harassment, and created all kinds of media interest and scandal with a cabinet minister being accused of sexual harassment and then resigned. o Until the human rights commission could deal with the allegations. o Slow to hear the complaints levied against him - Blenco had a motion to move the hearing, and filed a complaint that this was a violation against his liberty and was suffering due to the delay in decision - Court disagreed  Decision to sit in Cabinet is not of Blenco, but of the minister. It was not his choice. Angie © McMaster University 3 Winter 2014 Started on: 2/6/14 9:40 AM o Did adopt the idea that liberty was more than physical restraint, it applies whenever the law prevents someone from making fundamental personal choices o TWO TESTS  FREEDOM FROM PHYSICAL RESTRAINT  FREEDOM FROM INTERFERENCE FROM FUNDAMENTAL PERSONAL CHOICES • We do not know what constitutes a fundamental personal choice. (right to have an abortion, right to end your own life) iii. Economic liberty - Liberty from interference from your property. - Definition does not include property or freedom of contract, as such as rights from section 7 do not contain economic liberty whatsoever. Prostitution Reference 1990 - Supreme court of Canada said no; there is no inherent right to contract in the charter c. Security of the Person R. v. Morgentaler (No.2) - Case where the limits around abortion rights were struck down, - Criminal codes provisions imposed restriction on abortion - required that a woman, obtained an approval from a therapeutic abortion committee from an approved hospital and once she had this certificate, she was free to obtain an abortion - Problem; was that she could only obtain an abortion in the first trimester. - Some hospitals refused to set up a therapeutic committee and
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