Law Unit 2 - Rights and Freedoms

Human Rights

• live freely, treated as equal, speak your mind, right to live, right to religion, etc

• can be found in the United Nations, the universal declaration of human rights

Characteristics of Human Rights

Universality: all individuals are equal as human beings and are entitled to the same rights

Indivisibility: all rights are equally important and cannot be separated

Interdependence: the fulfillment of one right often depends on the fulfillment of others

Universal Declaration of Human Rights

The Universal Declaration of Human Rights is a document that states that we are all entitled to Human Rights, while also outlining those Rights.

• it was made as a way to recognize the fundamental rights that everyone deserves and it sets out to protect them

• there are 30 articles

International Criminal Court (ICC)

• The ICC is an independent tribunal headquartered in The Hague, Netherlands

• It has been in operation since July 1, 2002

• The court operates only operates when countries are unwilling or unable to prosecute serious international crimes themselves

• the ICC prosecutes individuals, not states or organizations

Categories of cases in the ICC

• Genocide: acts commuted with intent to destroy a national, ethnical, racial  or religious group

• Crimes against humanity: widespread or systematic attacks directed against any civilian population, including murder, extermination, enslavement, deportation, imprisonment, torture, rape, and other inhumane acts

• War crimes: serious violations of the laws and customs applicable in international armed conflicts (e.g, willful killing, torture, taking hostages, unnecessarily destroying civilian property

• Crime of aggression: the planning, preparation, initiation, or execution of an act of using armed force by a state against the sovereignty, territorial integrity, or political interdependence of another state

Jurisdiction of the ICC

• The effectiveness of the ICC heavily depends on the cooperation of member states. non -cooperation can limit the court’s ability to enforce its mandates

• The ICC complements national judicial systems. It does not replace national courts but steps in only when national systems fail to prosecute serious crimes

Punishment Imposed By The ICC

• Imprisonment: the ICC can impose fixed-term sentences or life imprisonment

• Reparations: offenders may be required to provide reparations to victims

charter of rights and freedoms

• entrenched in 1982

• protects basic rights and freedoms that are essential to keeping Canada a free and democratic society

• protects people from the arbitrary government actions

Section 1 - reasonable limits clause

• While individuals in Canada are granted various rights (ie. life) and freedoms (ie. religion) these rights and freedoms are not absolute

  • The government can limit these rights and freedoms, but only if it can prove that the limitations are reasonable and justified in a free and democratic society

  • How does the court determine if a limit is reasonable? Use oakes test/ proportionality test

Oakes test/ proportionality test

• Is the goal important enough?

• Does the restriction help achieve this goal?

• Is the limitation the least restrictive way to achieve the goal?

• Is the benefit of restricting freedom worth the harm it will cause?

Section 2 - Fundamental Freedoms

• freedom of conscience and religion

• freedom of belief and expression

• freedom of association

• freedom of peaceful assembly

note: provinces feared that these were too broad as a result they were limited by the notwithstanding clause

Section 33 - Notwithstanding Clause

key provision in the charter, it allows federal or provincial governments to pass laws that may temporarily override certain fundamental freedoms and rights guaranteed by the charter

• section 2: fundamental freedoms

• section 7-14: legal rights

• section 15: equality rights

any law that invokes _________ _______ is only valid for up to 5 years, after this it must be renewed or it will expire

Section 3-5 — democratic rights

• the right to vote or run for office. prisoners have the right to vote in Canada as of 2002

• Federal elections are to called once every 5 years

Section 6 - Mobility Rights

• the right to leave, stay and return to Canada

• the right to move anywhere in Canada to live and work

• provinces cannot limit the right of non-residents to own property

Section 7 - right to life, liberty, and security of the person

• limits the power of government to detain or to deny people basic liberty except “in accordance with principles of fundamental justice”

• also includes the admission of evidence in court. the crown has a constitutional obligations to disclose all relevant evidence to the defense before the trail. this includes:

  • police reports

  • witness statements

  • expert reports

  • physical evidence

• ensures that the accused has the ability to make a full defense and is protected against wrongful conviction.

Section 8 - to be free from unreasonable search and seizure

• this means that any search conducted must be reasonable, both in terms of why it’s conducted and how it’s carried out. if a search is deemed unreasonable, the evidence obtained can be discounted

• exceptions include:

  • consent searches

  • search incident to arrest

  • plain view doctrine

  • reasonable cause

warrantless searches can also take place under certain federal or provincial statues such as:

• controlled drug and substances act

• food and drug act

• liquor control act

Section 9 - No person can be arbitrarily detained or imprisoned

• this section protects individuals from being held by authorities without being allowed to leave or imprisoned without a good reason

• key word *arbitrarily* - without reasonable justification, cause, or legal authority

Section 10 - rights of arrested citizens

5 components to a proper arrest procedure:

1. officer identifies him/herself

2. the person is informed that they are under arrest

3. the person is informed of the charge

4. the person is informed of their right to legal counsel without delay

5. the officer touches the accused to signify that the person is in custody

arrest has to be in person

every person appearing before the court has the RIGHT to legal counsel

• legal aid

• duty counsel

Arrest

legally taking a person into custody, because they are suspected of committing a crime. they are informed of the reason of their arrest and their legal rights

Legal Aid

a government funded program that helps people pay for a lawyer if they can’t afford one. will assign a lawyer to handle your case all the way through

Duty Counsel

Lawyers who work for Legal Aid Ontario and give immediate advice, speak for you in court, or help you temporarily. Don’t handle the whole case, they are a quick, same-day help or short-term guidance, often for people who are unrepresented

Section 11 (d) - To be presumed innocent until proven guilty

the burden of proof is on the crown who must prove guilt beyond a reasonable doubt

reverse onus: some offenses appear to put the onus on the accused to prove he/she did not commit the offence

needs to have mens rea and actus reus

components of a crime

• Actus Reus: the illegal act or omission of an act

• Mens Rea: the guilty minded or wrongful intent

if even one is absent at the time of the offence, the crime has not been committed

Section 11 (e) - not to be denied reasonable bail without just cause

if someone is charged with a crime, they have the right to be granted temporary release while awaiting trial. this is because they are considered innocent until proven guilty

a judge can deny bail based on factors of public safety such as

1. the accused will commit another offense

2. the accused will harass the witness or tamper with evidence

3. the accused will fail to appear

4. if it is within the best interest of the public that the accused is held in custody

3 types of pre-trial releases (under section 11e)

1. undertaking

   1. the police can release the accused without a bail hearing with a signed agreement to follow certain conditions. used for less serious offences

2. recognizance

   1. accused pays a set amount of money to the court until they return for their hearing. used for repeat offenders or more serious crimes

3. bail with surety

   1. a friend, family, or someone responsible agrees to watch over the accused and ensure they follow the court’s rules. the surety is usually financially on the hook if the accused breaks the conditions

Section 12 - not to be subjected to cruel and unusual punishment or treatment

• capital punishment (death penalty)

• corporal punishment

  • physical correction (flogging or whipping)

  • removed from CCofC in 1972

  • placing inmates in solitary confinement for extended periods might be considered cruel and unusual punishment

• dangerous offenders

  • a person who poses a threat to the life, safety, physical, or mental well being of others

  • courts balance the offender’s rights against the public’s right to safety. the dangerous offender status is used in rare, extreme, and high-risk cases, the system is seen as justifiable and constitutional

Section 13 - Witness Protection

evidence given by a witness cannot be used against that witness in another case

Section 15 - Equality Rights

• every individual is equal

• the government cannot discriminate in its laws or programs on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability

  • the courts have held that this section also protects other characteristics that are not specifically written in it

Employment Equity Act (1986)

enforces increasing the representation of women, aboriginal persons, persons with disabilities and visible minorities in the federal public sector

The Canadian Bill of Rights (1960)

• one of the first federal laws to protect human rights and fundamental freedoms in Canada. it guarantees rights such as freedom of speech, religion, equality before the law, and protection from arbitrary government action

• was introduced to protect individual rights and freedoms in response to concerns about government overreach. but it was limited and only applied to federal laws

• while still in effect, the has largely been overshadowed by the Charter of Rights and Freedoms, which provides stronger protections and is constitutionally entrenched

Ontario Human Rights Codes (1962)

Ontario Human Rights Code was the first provincial law of its kind in Canada and protects individuals from each other in areas like discrimination of employment, housing, and services based on grounds such as race, gender, disability, and religion

• it was enacted to promote equal rights and opportunities for all Ontario residents and to prevent and address discrimination against other people and organizations

Canadian Human Rights Act (1977)

the Canadian Human Rights Act is a statute passed by the parliament of Canada with the goal of allowing equal opportunity to individuals who may be victims of discrimination based on sex, sexual orientation, race, marital status, gender identity or expression, creed, age, colour, disability, political or religious belief

• it was passed to strengthen protects against discrimination towards individuals by federally regulated agencies (such as banks, telecommunications, airlines)