WDW225 Lecture 3

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University of Toronto St. George
Woodsworth College Courses
Jim Davies

WDW225 Lecture 3 10/04/2012 Does the provision limit the right in question, 2 step section 7, life, liberty and security, > is it in accordance with the “principles of fundamental justice” Every criminal law will have the risk of imprisonment infringes liberty interest Charter Challenges Pornography R. 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 - Was it vague, does it infringe section 2(b) of the CCRF? Undue Exploitation Test: “ community standard of tolerance”, not personal tolerance What would we tolerance other people at, community standard of tolerance a) explicit sex coupled with violence – almost always absence b) explicit sex without violence, but degrading/dehumanizing – obscene if risk of harm from exposure is substantial c) explicit sex without violence, not degrading/dehumanizing- tolerated unless children are involved Charter analysis Pornography laws (and child pornography laws under s. 163.1) violates s. 2(b) of the charter o Depiction of sexual activity conveys meaning o Meaning is not measured by audience reaction o Expressive activity is not in the form of physical violence o Criminal law provisions restrict expressive activity BUT Saved under s. 1 a) Pressing and substantial objective? a. Protection against harm AND/OR regulation of morality? b) Rational connection c) Minimal impairment (have they got the law right) a. Does not criminalize expression which celebrates healthy human sexuality – narrow and focused d) Proportionality SAME analysis applied to hate crime provisions (s. 319) Violate the 2(b) section of the charter, but upheld (saved) under s.1 of the charter Anal Intercourse Until 1995, it was illegal in engage anal intercourse, unless you were married or you were 18. Age of consent for vagina intercourse was 14 R. v. C.M. (1995, Ont. C.A.) Challenged s. 159 of the Criminal Code which made it an offence for people under the age of 18 to consent to anal intercourse Age of consent for vaginal intercourse at the time was 14 years old ISSUE: does this violate s. 15 equality rights? Equality provisions Ruling: s. 159 violates s. 15 because it discriminates on the basis of sexual orientation (not listed but will recognize it as an analogous ground) - Arbitrarily disadvantages gay men by denying to them until they are 18 a choice that is available to heterosexual adolescents at the age of 14 - denies them to express sexually Section 1 analysis: (a) Pressing and substantial objective - yes Protect young people from activities that increase risk of physical and psychological harm (designed to protect young people against risky behaviour) (a) Rational connection – no If the objective is to prevent harm and reduce health risks, no reason to target 14 to 18 year olds (if you’re protecting someone from harm they should include everyone, thus they believe that this will not do much prevention) No reason to incarcerate people to reduce risk “There is no evidence that threatening to send an adolescent to jail will prevent him (or her) from the risks of anal intercourse” violate section 15, not saved Canada v PHS community services FACTS: safe injection site opened in Vancouver’s “lower east side” to reduce drug overdoses and to stop the spread of disease Insite was given an exemption from application of CDSA Federal government refused to renew the exemption (after 5 years) ISSUE: does the decision to refuse the exemption violate s. 7 of the Charter? Division of Power ARGUMENT: CDSA [federal criminal legislation] does not apply to provincial health facilities [health care facilities are under exclusive jurisdiction of the province under s. 92(7)] FINDING: CDSA and prohibitions on possession and trafficking drugs apply to provincial health facilities without being ultra vires s. 91(27) SECTION 7 – is it even engaged? (limit some right of life, liberty and security of the person)  s. 7 violation arises from the application of the CDSA to Insite  Without an exemption, staff and clients could be prosecuted  Denial of health services provided at Insite creates a deprivation of right to security of the person  The exemption provisions are necessary to ensure that the CDSA does not violate principles of fundamental justice  The law does not violate s. 7; what about the decision to deny the exemption?  Minister’s decision must accord with the principles of fundamental justice  Cannot be arbitrary  Decision is arbitrary, the purpose of the CDSA is to protect individuals from harm of drugs  It is inconsistent with the purpose of the legislation  No negative impact on public safety from Insite – denying Insite services is grossly disproportionate to any benefit from policy RESULT: Minister must grant exemption to Insite (forever) unless there is a material change in circumstances that would justify withholding the exemption Essential Elements Every crime has 2 elements (criminal conduct to non criminal conduct) 1. Physical element or actus reus o Conduct (or omission; should but don’t do) that makes up the crime o One or more physical acts 2. Mental element or mens rea
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