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Final

WDW225 Exam Booklet - Tests in Law

6 Pages
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Department
Woodsworth College Courses
Course Code
WDW101Y1
Professor
William Watson

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TEST 1: PRINCIPLES OF FUNDAMENTAL JUSTICE
SCC identified 3 principles of fundamental justice:
1.Criminal law must not be overbroad are means chosen necessary to achieve the State objective?
Only unconstitutional if means chosen are grossly disproportionate to the objective
2.Notice must be given of criminal offences
3.Criminal law must not be vague incapable of meaningful interpretation by the court
(i.e. if any judge in the country cant interpret the law, it is vague)
a.Legal principles
b.Consensus that principle is fundamental to fair operation of our legal system
c. Identified with precision
Laws are only unconstitutional if:
a.They infringe a right or freedom guaranteed in the Charter; AND
b.The infringement cannot be justified in a free and democratic society
The Oakes Test
1. Pressing and substantial objective (is the intention or reason behind criminalizing substantial)
2. Rational connection (between objective and the way Parliament has gone about solving the problem)
3. Minimum impairment (does it restrict liberty as little as reasonably possible)
4. Proportionality between effects and objective (is harm caused by legislation balanced with the harm
being prevented)
Principles of fundamental justice involve procedural AND substantive principles
Principles of fundamental justice include:
- innocent people should not be punished
- there is a generally held revulsion against punishment of the morally innocent
- law enacting an absolute liability offence will violate s. 7 of the Charter if and to the extent that is
has the potential of depriving life, liberty or security of the person
- absolute liability offence that has imprisonment or probation as potential punishment violates s.
7
TEST 2: VIOLATIONS OF THE CHARTER
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)?
- 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?
STEP 2: if yes, does it do so in a way that is inconsistent with the principles of fundamental justice
(overbreadth, 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;
THEREFORE, no s. 1/Oakes analysis
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Vagueness does not require the law to be absolutely clear Courts can play a role in minimizing
uncertainty
The fact that a law is open to different interpretations does not make it unconstitutionally vague
All that is required is that the meaning of the law can be determined by the Courts
Although broad, prostitution offences are not impermissibly vague
TEST 3: FRAUD
Two elements of fraud
1) Dishonesty
-would the reasonable person view it as dishonest?
-misrepresentations and non-disclosure of important facts
2) Risk of Deprivation
-need show actual harm or loss?
TEST 4: COMMUNITY STANDARD OF TOLERANCE (PORNOGRAPHY)
Applying the community standard of tolerance
(a)Explicit sex coupled with violence almost always obscene
(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
TEST 5: CONSENT AND LIMITS OF CONSENT
Limits on Consent
Policy considerations:
(1) social uselessness
(2) could lead to wide-scale breach of public peace
(3) fear of enjoyment
(4) sanctity of human body
For the purposes of this section, no consent is obtained where the
complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the
complainant;
(b) threats or fear of the application of force to the complainant or to a person
other than the complainant;
(c) fraud; or
(d) the exercise of authority
TEST 6: VOLUNTARINESS
To be criminal, the act must be a voluntary act
- must be conscious act
- accused must have an operation mind
- accused must be capable of making a decision or choice
Voluntariness blurs the line between actus reus and mens rea
TEST 7: AUTOMATISM
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Description
TEST 1: PRINCIPLES OF FUNDAMENTAL JUSTICE SCC identified 3 principles of fundamental justice: 1. Criminal law must not be overbroad are means chosen necessary to achieve the State objective? Only unconstitutional if means chosen are grossly disproportionate to the objective 2. Notice must be given of criminal offences 3. Criminal law must not be vague incapable of meaningful interpretation by the court (i.e. if any judge in the country cant interpret the law, it is vague) a. Legal principles b. Consensus that principle is fundamental to fair operation of our legal system c. Identified with precision Laws are only unconstitutional if: a. They infringe a right or freedom guaranteed in the Charter; AND b. The infringement cannot be justified in a free and democratic society The Oakes Test 1. Pressing and substantial objective (is the intention or reason behind criminalizing substantial) 2. Rational connection (between objective and the way Parliament has gone about solving the problem) 3. Minimum impairment (does it restrict liberty as little as reasonably possible) 4. Proportionality between effects and objective (is harm caused by legislation balanced with the harm being prevented) Principles of fundamental justice involve procedural AND substantive principles Principles of fundamental justice include: - innocent people should not be punished - there is a generally held revulsion against punishment of the morally innocent - law enacting an absolute liability offence will violate s. 7 of the Charter if and to the extent that is has the potential of depriving life, liberty or security of the person - absolute liability offence that has imprisonment or probation as potential punishment violates s. 7 TEST 2: VIOLATIONS OF THE CHARTER 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)? - 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? STEP 2: if yes, does it do so in a way that is inconsistent with the principles of fundamental justice (overbreadth, 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; THEREFORE, no s. 1Oakes analysis www.notesolution.com
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