12-03: Law Test 2 Notes

Canadian Grade 12 Law - Ontario Curriculum

Section 32

Jurisdiction, the Charter applies only to government action

Section 24(1)

All people in Canada can challenge the government in court if they feel that the government has unjustifiably violated their Charter rights

Why is it important for people to have the ability to challenge the government?

Prevents an abuse of power and regulation of government power regarding Canadians

Remedies

Judges can order a tailored solution/rectification to an issue - no one size fits all solution

Section 24(2)

Exclusion of evidence - illegally obtained evidence must be excluded unless the judge uses the test and their discretion to allow it

Test for exclusion of evidence 24(2)

1. the seriousness of the Charter breach (worse breach = more likely to be excluded
2. impact on the accused if the evidence is allowed (worse impact = more likely to be excluded)
3. societal perspective: threat to public safety, shattering trust in the justice system

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* No good outcome in using this - a guilty person can go free or the message is sent that police can permissibly interfere with the lives of Canadians and illegally obtain evidence

When challenging the Charter…

* applicant must prove that the violation **occurred**
* government must prove that the violation was **justified**
* standard of proof: balance of probabilities - more likely than not

Oakes test

specific legal test to determine the validity of a charter violation under s. 1

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__Part 1__

the objective must be **pressing** and **substantial** (issue must be important __enough__)

__Part 2 - proportionality test__

2a. rational connection test - methods must match purpose

2b. minimal impairment test - scope must not be too big & individual rights must be interfered w as little as possible

2c. proportionality test - the impact from the limitation of charter rights must be proportionate/balanced to its outcome

Fundamental freedoms - 2a. Freedom of conscience and religion

a person’s beliefs are protected under the Charter & people are allowed to act on these believes (so long as they are non-violent)

Multani case - test for freedom of religion

Multani case: Sikh boy wears a kirpan that falls out of its sheath at a public school. SCC court challenge states that he can have his kirpan bc of freedom of religion (and that other things in schools can also be potential threats)

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Test


1. There must be genuine belief w a nexus
2. The charter violation is not trivial or transitory (it is significant with a long lasting impact)

* applies to non conventional religions as well

Fundamental freedoms - 2b. Freedom of expression

anything that conveys meaning is protected as long as it isn’t violent - includes words, acts, pictures, music, etc. in the conveying of a belief

Fundamental freedoms - 2c. Peaceful assembly

Right to gather peacefully in groups - e.g. pickets, rallies, protests, parades → regardless of the reason or group (as long as non-violent)

Fundamental freedoms - 2d. Freedom of association

Right to be a member of a group or organization

* includes the constitutional protection for a meaningful right to collectively bargain & strike
* e.g. unions, religious groups, gangs (non violent), etc.

B(R) v Children’s aid society of metropolitan Toronto

* child of Jehovah’s witness needs a blood transfusion → parents prevent this bc of religion → SCC gives children’s aid society permission to have guardianship over the child & they receive the transfusion
* civil case
* freedom of religion is trumped by section 1

R v Sharpe

* child pornography found - could incite sexual violence towards children
* Sharpe is criminalized for this
* criminal case
* freedom of expression is trumped by section 1

Section 3

Canadian Citizens who are 18+ can vote (exercise democratic freedoms)

Section 6(1)

the right for Canadian citizens to enter, leave & remain in Canada

Section 6(2)

the right for citizens & permanent residents to move, live, & work anywhere in Canada

Section 7

the right to life, liberty & security of the person in accordance w fundamental justice

S. 7: life

protection from government action directly or indirectly causing death or risk of death

S. 7: liberty

Freedom to act without unnecessary government interference

S. 7: liberty - Due Process Rights

* fair trial rights included because of the consequences stemming from a guilty verdict → if someone is found guilty, they lose liberties

S. 7: liberty - Due Process Rights - DISCLOSURE

the accused is entitled to the crown’s evidence against them to know what they must defend themself against

S. 7: liberty - Due Process Rights - CROSS EXAMINATION

lawyers question witnesses that are not theirs to ensure fairness in questioning & a picking up on non verbal queues too

S. 7: liberty - Due Process Rights - RIGHT TO REMAIN SILENT

a person cannot be forced to answer questions (from an official or in court)

R v NS

* muslim woman accuses her uncle of rape → she wears a niqab
* SCC rules that she needs to remove her niqab to testify bc of the importance of the fair trial and her non verbal queues that cannot be picked up on w it on
* freedom of religion trumped by due process rights

S. 7: security of the person

protection against situations where a person’s physical or mental health/safety/bodily integrity are jeopardized/compromised by government action

R v. Morgentaler

* abortion is legalized in Canada because its ban violates s. 7
* life: women took matters into their own hands w/o access to abortion → self-abortions or non medical professionals
* liberty: women didn’t have the right to make choices about their own bodies bc they couldn’t access abortion
* security of the person: women had to carry unwanted pregnancies bc they had no other options → emotional & physical difficulties

Carter v Canada

* MAID is legal in Canada bc its ban violates s. 7 → was illegal before bc the SCC believed that people would be pressured into it if they were terminally ill
* life: people killed themselves before they wanted to die bc they had no other options
* liberty: people couldn’t make choices about their death (bodily autonomy)
* security of the person: people had to endure the horrible pain from their diseases bc they couldn’t access MAID

What rights do S. 7 never cover?

property rights

* expropriation is allowed & there are no legal arguments that can be made about it

Fundamental justice

laws that impinge on life, liberty, or security of the person must not be **arbitrary**, **overbroad**, or have consequences **grossly disproportionate** to their object

* if any part of the test fails s. 7 has been violated → s. 1 and Oakes test → if Oakes test isn’t satisfied, remedy must be ordered

Section 8

everyone has the right to be secure against unreasonable search or seizure

s. 8 - search incidental to arrest

* at the moment of an arrest the police can search person’s property NOT INCLUDING their home or electronics
* cannot search home or electronics bc there are higher expectations of privacy here and people store personal items here

s. 8: fearon test

test to search an accused’s electronics at the time of arrest (if the devices are physically with the accused at the time of the arrest)

conditions


1. arrest must be lawful w reasonable grounds
2. the search must be incidental to arrest (must be a reason to look - i.e. to preserve evidence)
3. the nature of the search must be tailored to the purpose - must be looking for relevant things on the electronic device
4. officers must give a play by play of their actions and keep diligent records in searching the electronic

s. 8: customs

* customs officers have wider & more authority
* reduced expectation of privacy at the border
* only one chance to prevent a dangerous person from entering Canada
* customs officers can search electronic devices w/o a warrant only if there’s reasonable suspicion that something is wrong

s. 8: search warrants

* when the police get a valid search warrant, they can search the premise (the address) & the receptacles (drawers, cabinets, etc) & additional attached structures on the privacy (like an attached garage)
* they need to get additional unattached structures (like a shed) added to the warrant to search them
* they need to get additional permission for searching electronic devices on the premise
* telewarrant or seize the electronics to get the permission later

s. 8: Breathalyzer tests

* officers can demand Breathalyzer tests w no signs of impairment
* field sobriety tests (i.e. get out of car and walk in a straight line) require signs of impairment

Section 9

everyone has the right not to be arbitrarily detained or imprisoned

s. 9: 2 types of detention (detention: a person is stopped by a government agent & cannot walk away)

* physical detention - officer physically holds a person in a space (holding cell, arrest, etc)
* psychological detention - officer creates a sense of detention where the person is detained w/o the use of physical force

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__test for psychological detention__


1. person felt detained
2. a rational person in the same situation would also feel detained

s. 9 - exceptions to arbitrary detention

CSBA can give random detentions at the border, RIDE program where people are stopped randomly roadside

Section 10(a)

the right to be informed promptly of the reason for the detention or arrest

* first reasonable opportunity
* substantive - told of reason w sufficient detail
* timing - must be told promptly of the reason for their arrest at the first reasonable opportunity

Section 10(b)

the right to be given counsel & retain & instruct counsel w/o delay given at the first reasonable opportunity → will be provided with names and phone numbers of lawyers if needed

exceptions to s. 10(b)

* at roadstops
* before a Breathalyzer test
* at customs

why? → timing, feasibility, substances can dissipate