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Lecture

March 10 2014 - POLI SCI 3NN6
March 10 2014 - POLI SCI 3NN6

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

Description
Started on: 3/10/14 3:35:18 PM C LASS N OTES FOR : P OLI S CI 3NN6 McMaster University, Winter 2014 M ONDAY , M ARCH 10, Y Rights on arrest and detention SECTION 10 “everyone has the right to attention to be informed, informed of the right and validity to be determined by habeas corpus” 1. Section 10 2. Who can claim benefit - Any person who is physically present in Canada can claim the benefit of section 10. - Any Canadian citizen outside in relation to Canadian gov’t can claim the benefit on section 10. i. Everyone ii. Corporations o Fictional entities o Cannot claim the benefit of section 10 3. Limits of section 10 i. Section 33 i. If gov’t wants to suspend the right to council, it can do s without council notwithstanding charter of rights an freedoms ii. Section 1 i. If it’s justifiable it can do so! iii. Section 10 “arrest or detained” i. Contains an inherent limitation on to itself, in order to obtain the benefit of section 10 you have to be arrested or detained. You do not have a general right to council, it only becomes triggered when you’ve been arrested or detained. 4. Definition i. Arrest Or Detained - Compulsion or coercion by the police - On reasonable and probable grounds - Common law protects the sanctity of the individual - State cannot intrude upon our persons - However, is a request by the police to be subjected to police detention voluntary or compulsory? If it’s voluntary then you do not have section 10 rights! - It is only when you are COMPELLED BY FORCE where your section 10 rights become triggered R. v. Therens - FACT: Therens was driving home one evening when he was stopped at a standard road side check o Police officer requested a formal breath sample o Therens cooperated and blew over, charged with driving while impaired. Took him back to the police station to have his blood alcohol tested. o Thrown into jail and in no time was he given to his section 10 rights, until after he blew into the large machine at the police station. Angie © McMaster University 1 Winter 2014 Started on: 3/10/14 3:35:18 PM o Previously, there was a punishment for refusing to blow for a breath sample. The police did not give him his section 10 rights untilAFTER he’d blown into the breath o SUPREME COURT - Took out the breath sample machines Included “restraint on liberty in the obvious form of physical constraint” but also “when an agent of the state assumed control over the movement of a person by demand or direction which may have significant legal consequences and which prevents or impedes access to counsel” - Triggered the coercive power of the state - By refusing to provide the breath sample, you come under the criminal code - Courts have continually held that almost any serious detention brings section 10 into play. - Roadside breathalyzers are not admissible, so asking for breath samples on the side of the road is justifiable under section 1 ii. Extent ofApplication R.v.M. (M.R.) 1998 - M.R 13 year old high school student who was witnessed on school property exchanging a “substance” out of his backpack for cash - Vice principle found Marijuana in the backpack, called the police, accused of drugs - He said that he had not been given his section 10 rights - 10.b was not intended to apply between teachers and students - Section 10 was inappropriate 5. 10. (A) REASONS FORARREST - Right to know the reason for arrest - Right to retain council - The police have to GIVE YOU THE EXACT Reasons for your arrest - Compound right - The reason
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