Voluntariness

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Department
Woodsworth College Courses
Course
WDW101Y1
Professor
David Davies
Semester
Fall

Description
th Thursday October 14 2010 Lecture 4: Voluntariness More on Actus Reus Recap: Charter All Charter rights other than s. 7 - STEP 1: does the law infringe the Charter right? STEP 2: can the law be justified (saved) in a free and democratic society under s. 1 (R. v. Oakes test)? pressing and substantial objective; AND rational connection; AND minimal impairment; AND overall proportionality Section 7 (exception to general rule) STEP 1: does the law infringe the right to life, the right to liberty or the right to security of the person? 2: if yes, does it do so in a way that is inconsistent with the principles of fundamental justice (over breadth, vagueness, minimum requirement for mens rea etc.) NO law does not violate s. 7 YES law does violate s. 7 Laws that violate s. 7 cannot be saved under s. 1; - say ok we know theres an infringement but is it justified? THEREFORE, no s. 1Oakes analysis has to have a pressing and substantial objective and a rational connection between the purpose of the legislation and the means that they chose Balance the infringement against the benefit*- if were talking about section 7 BREECH the analysis is slightly different, here the 1 step = DOES THE LAW INFRINGE THE RIGHT TO LIFE LIBERTY OR SECURITY? www.notesolution.com st In criminal law the answer to that 1 question only will always be YES. But that does NOT mean that every criminal law violates the section the section of the charter, so ifs yes, you ask yourself the nd 2 Question IF I DOES INFRINGE DOES IT DO IT IN A WAY THAT IS INCONSISTENT WITH THE PRINCIPLES OF THE PRINCIPLES OF FUNDAMENTAL JUSTICE? If so then it DOES violate section 7 if it is NOT inconsistent, then it does not violate section 7 - & what the SCC has said is: if a law violates section 7 it CANNOT be saved under section 1 BECAUSE section 7 has its OWN internal balancing so in order to decide that theres a violation of section 7 youve already established the fundamental principles of our legal system and its not possible to say that your liberty interests are denied in a way that are not fair. Can the law be consistent with section 7 but INCONSISTENT with another charter right? example: illegal to posses materials that are obscene - ok so argument: 1 - the law is contrary to section 7 because it goes against my liberty + I think its vague 2 it also violates section 2(b) of the charter because it violates my freedom of expression its perfectly possible, to say it infringed section 7 because there IS a risk of imprisonment but its NOT vague so there is NO breech of fundamental principles once you say it coesnt violate a charter right thats the end of the story 2(b) yes it does infringe your freedom of expression, but NOW LETS LOOK AT SECTION 1 (and the answer is yes) Note: Principles of fundamental justice have nothing to do with section 1 only section 7 *recap* EVERY CRIMINAL OFFENCE HAS: ACTUS REUS + MENS REA The important thing to know is that there can be more than one element to be actus reus and more than one element for a mens rea (Physical element) + (mental element) (they have to overlap) Criminal act + criminal intent ACTUS REUS Always defined in the Criminal Code in order to determine what it is you need to read the section of the code that defines the offence it will ALWAYS involve an ACT or and OMISSION www.notesolution.com
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