Essential Elements of the Criminal Act

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University of Toronto St. George
Woodsworth College Courses
David Davies

Thursday October 7 2010 Lecture 3 Essential Elements of the Criminal Act Recap from last week: Big ideas! Charter of Rights and Freedoms of no force and effect helps control what parliament can and cannot make illegal inconsistent with the principles of fundamental justice Oakes test! Justifiable limits? Margarine how an why parliament can designated certain things as a crime - it does this by declaring that certain laws are of no force in effect _ SO judges or courts can deem a law unconstitutional so it doesnt count it will do this if the law violates from the principles of fundamental justice up to the discretion of the judges fundamentally cant deprive you of youre freedom they come from the common law and are related to core values in teh justice system The law as a p.o.f.j cannot be TOO BROAD cannot be Grossly disproportionate not VAGUE normally the corwn but if charter violation you have to prove it, then goes back on the crown Under section 1 cant do whatever you want because your rights are not absolute Oakes had to prove he wasnt going to traffic the drugs he had 4 step test: 1) PRESING AND SUBSTANTIAVE OBJECTIVE 2) RATIONAL CONNECTION what the law wants to do and the way its going about it is logically linked 3) MINIMUM IMPAIRMENT (or minimal) can it be narrower? 4) PROPORTIONALITY BETWEEN EFFECTS AND OBJECTIVE is it so sever that its unjustifiable is what were trying to do if you have a joint in pocket to lock up rest of life Charter Challenges Continued.. Pornography: www.notesolution.comR. v. Butler Focus on s. 163 -- offence to make, print, distribute etc. obscene material Section 163(8) provides a definition of obscene ...any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. FIRST ISSUE what is undue exploitation? - interpret the section before looking at constitutionality UNDUE EXPLOITATION to be measured on the basis of community standard of tolerance comes from some other cases, it means this is not a personal thing, its a SOCIETAL thing what people should or should not be exposed to What would the community tolerate others being exposed to? Not about personal exposure Section is aimed at preventing harm from exposure to undue exploitation Harm = predisposes people to act in an antisocial way (i.e. mistreatment of women by men) Applying the community standard of tolerance looking at different typologies of explicit sex (a) Explicit sex coupled with violence almost always obscene (b) Explicit sex without violence, but degradingdehumanizing obscene if risk of harm from exposure is substantial (c) Explicit sex without violence, not degradingdehumanizing tolerated unless children are involved So is this section a violation of freedom of expression? Charter analysis: Pornography laws (and child pornography laws under s. 163.1) violate s. 2(b) of the Charter restricts expressive activity (content is not relevant consideration)
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