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Charter, Evidence and Procedures Part 2.docx

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University of Waterloo
Legal Studies
LS 202
Frances Chapman

Part 2: Charter: Limitations of Rights  Government and individuals, not between two or more individuals o You have to have the government involved in some way to use the Charter  Government officials at government agencies  In the Charter, guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society o How do we limit people's rights?? Freedom of speech but we have defamation  Charter s. 1 - Oakes Test***** (EXAM) o Oakes test: possession of a prohibited drug - onus shifts to the defendant to show that they were not going to traffic the drug  Presumption of innocence-> the onus was shifted o Step 1: are you infringing the Charter for something important  Pressing and substantial test  Is this something in society that is so important that the rights of an individual are being impaired o Step 2: if it is justified there must be a "proportionality test"  3 elements to the proportionality test  Must accomplish only what is stated-> we need to do only what is NEEDED to be done  Should impair the rights "as little as possible" -> just taking care of one particular problem  Proportionate effect between the effects of the measures and the objectives o Oakes - SCC found that s. 8 of the Narcotics Control Act is over inclusive  Just because you have the drug in possession does not mean that you are going to be trafficking it  A reasonable limit that could be justified in a free and democratic society and s.8 was struck down  Step 1: is it important enough?? Pressing and substantial? YES  Step 2: were the means proportional? NO  Conclusion - s. 8 is struck down, not saved by s. 1  "Constructive dialogue"  Between the Supreme court and the Legislation; we need to reconsider what we are trying to do with this legislation  Charter and Oakes o Judges have this ultimate power - the charter- to strike down any of the legislation made by the government anytime they infringe the rights of the individuals o Does it infringe Charter rights - yes, s. 8 infringes the presumption of innocence o BUT - have court has another power to say that the infringement is ok in this limited circumstance (we limit hate speech - freedom of expression - but we infringe on that right everyday as a "reasonable limit" to our rights) o Oakes case - NOT ok to infringe presumption of innocence o s. 8 has to be struck down - not a reasonable limit on our rights - not saved by s. 1 o Does s. 8 NCA violate the Charter - YES o Is it an important thing trying to stop?? YES, drug trafficking o Does it try to stop drug trafficking in the best way possible?? NO, no rational connection between possession of drugs and trafficking o NOT saved by s. 1 - therefore s. 8 NCA s struck down  Confessions o "The introduction of a confession makes the other aspects of a trial in court superfluous" - Kassin  People start believing that they have actually committed the crime o Confession is not admissible unless the Crown shows that the statement was voluntary and that it was not made in fear or in hope of some sort of advantage by someone in a position of authority so that one can be sure that a statement is true and trustworthy  We want to believe that when people confess, they are doing it because they want to not because they are being pressured to say something  False Confessions o Interrogations are inherently stressful  "trembling, shivering, sweating, hyperventilation, frequent urination, and verbal incoherence o Three main tactics in police interrogation to obtain confessions  Isolation as a means to increase the suspect's anxiety and desire to escape  Confrontation whereby the interrogator accuses the suspect of the crime using real or fictitious  Minimization where the investigators conveys sympathy and provides a moral justification for the crime to lead the suspect to expect leniency upon confession o Maximization: telling the suspect that "we know you are guilty" or "we know you did it so just get it over with and tell us"  Interrogations o Other techniques include invading the suspect's personal space, keeping light switches, thermostats, and other control devices out of the suspect's reach and using a one-way mirror to allow other officers to look for signs of fatigue, weakness,
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