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Lecture 4

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University of Toronto Mississauga
Nicole Myers

Lecture 4 – Canadian Charter of Rights and Freedoms 1982 Midterm: - May 22, 2013; in class: 1 hour 45min (need max 1h 30min, 15min to look over; come early); covers all material; 4 questions with some choice  pay attention to how many marks each worth  answer all parts of the question; jot outline, budget time - focus on dominant themes or issues & what has mostly been talked about  4 long answer question, each out of ~10 – provide definitions for any terms used, use dominant themes on issues of morality, will have choice, go beyond and state any implications or why it is important; some will have 2 parts Introduction to the Charter Defines our common rights - Most important pieces of Canadian constitution, guarantees basic rights and freedoms – unites and defines in commonality of rights Purpose: limit state intrusions – protection from power of state – particularly those not part of majority Represents controversial shift in power – moved it away from legislature (those who write law) onto courts – courts decide if law upholding rights of Charter; if violating in unjustifiable way, then can strike down law All federal and provincial legislation is subject to the Charter** Redefined how we advance our rights - Room for interpretation being read in for Charter – amendment requires long process: unanimous decision from all provinces; judges are creative in interpreting to apply to today‟s context - Judge‟s job now to ensure any laws imposed by government are consistent with Charter (only federal or province; personal interactions are not protected – must refer to Ontario legislation for person to person contact)  Charter applies to agents of the state (police) Section 1 First thing, tells you your limits on your rights – reasonable limits clause s.1 „The Canadian Charter of Rights and Freedoms 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. - Our rights and freedoms are not absolute, can be limited to protect rights of others or for important national values - Example: freedom of expression – limited for ability to propagate hate speech, pornography access  But when is porn extreme? What about hate speech? Oakes Test 1) "an objective related to concerns which are pressing and substantial in a free and democratic society", 2) “proportionality test” • measures must be carefully designed to achieve the objective in question. They must be rationally connected to the objective. • impair "as little as possible" the right or freedom in question. • proportionality between the effects of the measures and the objective which has been identified as of "sufficient importance". - State must prove through the Oakes Test that the law is a reasonable limit on your Charter rights  2 step process (although second has 2 sub-steps): does objective make sense? If so, is it reasonable – are means catered to objective in question (not unfair, irrational, and overly broad), reasonable connection between law and achieving its objective? Does it infringe on right as minimally as possible – impairs rights in most narrow way but still achieves objective  infringement is reasonable limit? Is it of sufficient importance? - Government‟s response should be reasonable and justified; freedom of expression or speech have commonly used this test, as well as concern around police‟s headdress: could those of diff religions wear religious headdress instead – failed Oakes test, was not a reasonable limit Section 2 – fundamental freedoms Fundamental freedoms – extend to freedom of press for media to publish, can associate with whoever you choose; have constitutional protection since 1982 • s.2 „Everyone has the following fundamental freedoms a) Freedom of conscience and religious b) Freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication c) Freedom of peaceful assembly d) Freedom of association Basic forms of liberty - Media is protected b/c important mechanism for dissemination of information – discomfort of a muzzling in media or being state run – media and individual citizen has right to be critical of government and be able to gather with people who agree or disagree with your opinions and can share information – form of our basic personal liberty - Despite importance of these, government still has power to limit * Section 3 to 5- Voting and Electoral Representation Ensure our right to vote and have election every 5 years (although it is customary to have them every 4 years)  need to be 18, vote where you reside, are a citizen, every 5 year (actually 4, or recently 12-24 months) sent to polls for voting Section 6- Mobility Rights Ensures occupational mobility across Canadian provincescan freely move between provinces, don‟t need passport – limited by court order (criminal context = reasonable limit b/c justified by particular jurisdiction‟s need to keep tabs and ensure appearance at court) Section 7: legal rights „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‟ • R v. Morgentaler Important impact for interpretation of this section – challenged abortion, Supreme Court supported (ruled in favor), violated women‟s s.7 rights: right of liberty to choose, state does not have right to tell you what to do with your body and cannot dictate your medical treatment; Supreme Court: unjustifiable laws for termination of pregnancy Maintains accused‟s right to silence: • R v Hebert Exercised right to legal counsel, indicated wanted to contact lawyer and wished not to speak further to police, but placed into cell & police department placed undercover in itincriminating statement made by Hebert – is this statement admissible in court? Court upheld not admissible unanimously, police had violated right and it was unconstitutional Section 8-14 Legal Right of Accused s.8 „Everyone has the right to be secure against unreasonable search or seizure‟. s.9 „Everyone has the right not to be arbitrarily detained or imprisoned.‟ s.10 „Everyone has the right on arrest or detention a) To be informed promptly of the reasons therefor; b) To retain and instruct counsel without delay and to be informed of that right c) To have the validity of the detention determined by way of habeas corpus and to be released if the detention if it is not lawful S. 8-14: cannot be subjected to search by cop, has to be justified for being taken into police custody, upon arrests other rights become invoked (must be told what you‟re being charged for or being held for, justification for why being detained even if not immediately being charged, right to legal counsel and given this right a.s.a.p. without delay to make this contact & must be informed of this right in case you didn‟t know – most people don‟t know, so onus is on police to tell them) & secondary check: within 24 hours need to be brought to court  Ontario: brought in front of justice of peace (no legal training) not judge (problematic due to legal training difference?), determine if release on bail or not s. 11. Any person charged with an offence has the right • (a) to be informed without unreasonable delay of the specific offence; • (b) to be tried within a reasonable time; • (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; • (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; • (e) not to be denied reasonable bail without just cause; s.11: more about process so moving through criminal court  other rights become invoked Bail: amount of money, types of conditions  must reasonable If offence has particular sentence, right to be tried by jury or by judge alone if you want If found not guilty, cannot be: tried again, convicted and punished If you committed offence before law changed (to harsher/longer sentence), benefit from being subjected to law at time of your offence (MMS) 11b has most challenges: reasonable is subjective; a lot of cases = backlog: R.v.Askov: 1990 decision reached which resulted in so many (10s of 1000s) charges being withdrawn b/c court said accused persons were waiting way too long = Charter right violated; Askov was charged with series of quite serious offences (weapons, threat to bodily harm), but 34 months/3 years had passed before finally being before court for trial  appealed to Supreme Court: violation of Charter rights – Supreme Court: 6-8 months delay between court trial and offence is considered EXCESSIVE (*this is not a rate that the court set*) & Askov had waited 36 months  charges dismissed b/c Charter rights take precedence over criminal allegations Supreme Court has set a rate, but trial delay is getting longer and longer now, so another Askov may occur soon Defence counsels who do this on purpose cannot challenge delay b/c coming from accused If this 11b type of allegation comes forward, looks bad on Crown s. 12 ‘Everyone has the right not to be subjected to any cruel and unusual treatment or punishment’. 1987, R.v.Smith: used to strike down Narcotics Control Act where MMS was 7 years imprisonment for importing ANY amount of narcotics (now Drug and Substances Act)  penalty seemed grossly disproportionate in some cases but, MMS does not allow court ANY discretion (considering circumstances was out of the question); Supreme Court used this to outlaw routine police strip searches – 1997 police strip searched the accused Smith in a stairwell of a restaurant  said to be resisting arrest, BUT this did not entitle police to compromise person‟s psychological and physical integrity and safety – issue was where it was done S.13 self-incrimination Cannot be forced to take stand against yourself; onus is on state/Crown (also goes to right to remain silent when deta
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