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The Charter PART 1.docx

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Legal Studies
LS 202
Frances Chapman

The Charter, Criminal Procedure and Evidence (parts 1-3) Tuesday, February 26, 2013 10:28 AM Part 1: Constitution Act, 1982  Charter of Rights and Freedoms (charter) which was created under the constitution o Parliamentary supremacy  The philosophy that the Parliament or legislature (properly acting) can enact or repeal any law that it chooses. o Division of powers  Set out in the Constitution o Empower judge  Does not have to enforce if it does not follow the Constitution o Roles of different laws and how they work together, and provides mechanisms for how they can be changed  Something is beyond the federal or provincial government's power and con override parliament o This allows check on government power  If the judge sees that the application is not being properly used, they can send it back to parliament or strike it down The Charter of Rights and Freedoms  s. 7 of the Charter provides that "everyone has the right to life, liberyt and the security of person" o Interpreted o What is life??? Fetus o Liberty o Security of person? What are the factors that go into it?  Strike down: the courts CAN but they use it in a measured way, they strike it down as little as humanly possible  Sever: o Reading down: interpreted as narrowly as possible; less inclusive o Reading in: Criminal Procedure - search warrant  Police and government investigators power to search and seize  Charter- "secure against unreasonable search and seizure o Search and seizure: a police practice where they can search property and seize evidence that may be needed in the investigation and prosecution of crime o Controlled Drugs and Substances Act; there are special rules when searching for drugs  11(7) provides that if by "reason of exigent circumstances it would be impracticable to obtain" a warrant  Have 'reasonable and probable grounds to search for evidence" Charter - Exclusion of Evidence  Way evidence is collected  "bring the administration of justice into disrepute"  R. v. Feeney (1997) o "fruit of a poisoned tree": if the police do something wrong at the start of the process, all the evidence could be thrown out because of that o Police found Mr. Feeney sleeping with blood all over his shirt near the seen of the murder  However, police did not have reasonable grounds to enter the hou
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