soc209 - lc - march 5 2012
Tutorial: thursday night - 630 to 830 i IB 380 **
Remedies s. 24 - thinking abour remedies under the charter
- various remedies.
- if the law violates the charter : you get strike out the part of the law or you can strike
out the entire law. (for eg, the law has no force and effect for eg there are no force and
effect law in gun mandatory minimums.)
- you can also interpret a law narrolw - you can say that it applies only in secific cases -
its being more specific than it sound s- its something written brodaly - that the
legistlator didnt really intend - so its not really covered by the law.
- it can also read in features to the law - and reinterpret the law.
- it can also declare a constitutional exemption - in a particular case - the law vilates
your charter rights nad you are not covered by that law.
- you go for more general broad categorie s- in this particular case, it doesnt aply and it
violates the charter this is what these things are saying.
In term so fyour rights being violated in a criminal case: the crown did soemthing that
they were supose to do for eg.
- you can stop the trial/ order entirely and get a new trial.
- or completey stop the proceddings entirly - you can stop criminal prosecution.
- they can also exclude evidence. - it is obtianed ina propeor or legal way it can excluse
- They look at the general standard**
- for eg, a case r vs greffe - there is no justified grounds in his case - for him being
chaerged or pulled over - polcie had no justified means to pull him over for drug
offence so they pullled him over for a searcha dn found heroine. The extreme court of
canada excluded that that evidence becusae of the administation of justice being put in
dispute. (the supreme court of canada advocated. )
- lots of people dont like this becusae it lets a lot of poeple go free. - thee cases
generally get a lot of media attention becusae poeple get off at a technicallity during
this point. bu tit is importnat to remember that is it better to let a 100 guilty poeple go
free than convinct one guilty individual. * (for eg wrongful conviction)
always investiaagate why it is called a techincality? it is called this becsae we wnat tp
punish this individual more harshly*
Problems with the Charter:
1. Only individual rights - they are not about group rights. so the charter is not a social
charter in that regard. In quebec on 2002 a claimw as heard by the supreme court of
canada - suggesting that the welfare rates for 100$ recived under 30 was unconsittionla
- the quebec women launched this claim. - protecting that this was an individual rights
-t he court decided nothing - there is nothing in that charter that places a positive
obligation on the state. * not a social charter. 2. Very expensive to launch a challenge: prohibited from most indivudals from going
this route. - you see a lot of challenge brought forth by corporations nad poeple who
have the reousreces nad time to launch a challenge. we see this on the ciases of
mrjiunana - the cliam of marijuna - sits around and hoping to get acught becusae he
wants to launch a charter. -poeple who are younger - more impoverished background -
cant really do this.
3. should judges be able to make laws? : shoud jduges have the power to make law,
this is more and more recently - the understnading that they are not democratically
elected poeple, they are not elected that means they are not accountable to the public.
- taking a partiular power of law away from them.
rmr what the charter is aiming to do: create some neutral body from the body of
politics. to keep people in check.
4.. Hampers police ability to enforce laws: there is sometimes quite owenerous tasks
placed on police. - they argue that the charter makes it more difficult to successfully
prosecute criminals, We see this again being brought up more in 911 and terrorist
affairs. (understanding: that we shouldnt be restirciting police powers in these cases
becusae we might loose information. )
5. S. 1 and 33 exclusions - part of our reading: sec 1 - we talked about the exclusions,
the OAX test and how thye work. sec 33 - eclusiosn allow procinvces nad terroritories
to opt out. of the charter in a particular law. for eg, this law is not convered by the
the provinces can opt out of charter provisions and nthey have to be speicfic which aws
they are opting out of the charter.
for eg, in quebec they use this to restrict this to use english on signs. *
Sentencing and the Court process entirly:
Calssifcation of offences:
less serious, tired before judge in provincial, dealt with quickly.
- indicitable: - more serious offences, may invvole premilimiary hearings, may invovle
Hybrid: crown may dedice whter to proceed with summary ofindictalbe convtion.
- police have the right to detain you and search you.
- doesnt have to be reaonsalbe grounds - tis a less firm threshold than that. its
- its the frist set: this investigative dentiton - you can be held as a suspect - under
certain conditions - theres a warrant.
- the arrest is acualy where they have the legal right to deprive you of liberty.
- the right to counsel: section 10 b - gives you the riht to contact the lawyer without
- the right to contact the lawyer without delay and also to talk to that lawyer privately. - description of the indiivaul - circumesntaces that relate to the offence, if the charge is
a summary conviction charge: the suspects is usually relaesed on their own
recognisance with a promise to appear in court.
if its higher offence -they need resonable nad probable evidnec e- higher threshold -
they need reasonable nad porbable grounds.
if you are charged with an indictalbe offence: finger picture, if the police believe hte
acucsed wont show up to trial -they are locked in tiral cell or locked up to await hearing
on the charges and hearing on bial. if police think you are likely to flee - they put youto
a jail centre to bail. the judge decides if you get to be free and are able to bail before
Judicial Interim Release
a lot of this comes from 1972 - let suspects back to the community as they await their
it may be deined without a reasonable cause*
the jduge or the mastigrate has to release the accused.
bail: may not be denied ithout reasonable cause.
- detention necessayr prior to trail based on : prior convictions - maybe this person has
a past of convictions or etc,
- other current charges - there are multipple charges usually laid in front of courts when
they are brought to trail.
-previous failure to appear.
Reasons for dentetion: - they reasons have to be givent o the jduge.
- fear will not show up for court - not sure, then thye hold you.
- fear that you may reoffend - maybe you are a high end offender. that you may offend
- have not arranged bail - you have set upsomeone or havent been able to pay for it.
unsecure bail - that means the person doesnt have tp pay anything upfront. which you
remain liable for that full amount if you dont apear - they try to make sure you are
going to appear in court. - you are still liable for that offence.
full secure bail: where the person has to pay it up front - and you loose tha tmoney if
you dont apear in court.
Generally, the courts have sugested that bial cant be that high - that it estentially
become sa detention order.
up to 80% of provincial jail populations are prinsoners on remand.
- these are peopel who have not yet been found guilty.
- there are a number onf ceoncerns with Remand:
Rmenad concerns: lack of treamtnet programming and serice -t heres no judge
ordering, determination of guilt, not anger maangement classes, and we could see why
there are no serivces? you are obviously suggesttiong that the person is guilty by giving
them serivces -but helping them with stuff they may not have. there i sno programming. - there is an uncertain length of stay - depends how long your case goes to court and to
trial -so a lot of the cases- there are a number of suicides that have happened and youth
- there are abusive and oppressive conditions.
- the idea is to make sure they are able to be back in the community as they await a
Access to Legal Representation (section 10 b of the charter.)
- right to ratin legal counsel - must beinforme by police of that right.
- general charter deicsion have extended this to include legal aid lawyers. - you are
entitled to a legal aid lawyer in certain conditions as well.
- permitted to contact lawyer before statement. - contact police before you make the
- must be given a toll free number for duty counsel where you can speak to legal aid -
so if youd ont have the money or dont know one - the police ontario have to give you a
toll free number for duty counsel.
- so ontario was the frist proince ti implement legal aid - in 1967 - in Ontario.
- the costs increased dramatically over the next fee years
- the feral govt reduced its con