12-03: Law Test 2 Notes

Section 32: Jurisdiction

^^Charter applies only to government action^^

  • No government, no Charter

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^^ (and courts can then order any remedy they see fit)

  • Important because having the ability to challenge a government ^^prevents an abuse of power and regulation of government power^^ regarding Canadians

Remedies

A ^^tailored manner of rectifying an issue^^, ^^judges^^ have the power to do so in order to ensure a proper rectification, no one size fits all solution

  • In order for a judge to order a remedy: a Charter violation occurred and such violation was not justified
  • Potential remedies: a law is struck down, the wording of the law is changed

Section 24(2)

^^Exclusion of evidence^^: illegally obtained evidence must be excluded unless the judge uses their ^^discretion^^ and the ^^test^^ laid out for the exclusion of evidence

  1. ^^Seriousness of Charter breach in obtaining the evidence^^: worse breach = more likely to be excluded
  2. ^^Impact on the Accused if evidence is allowed^^: worse impact = more likely to be excluded
  3. ^^Societal perspective^^: threat to public safety, shattering trust in the justice system
  • There is no good outcome if a judge uses this:
    • If it is used: the message is sent that police are permitted to interfere with the lives of Canadians and illegally obtain evidence in ways not in line with the Charter
    • If it is excluded: a guilty person can walk free if that evidence is the sole/main piece of evidence against the Accused

Charter Cases

  • ^^Applicant^^ must prove that the ^^violation occurred^^
  • ^^Government^^ must prove that the ^^violation was justified^^
  • Standard of proof: ^^balance of probabilities^^

Oakes Test

Specific legal test to determine whether or not a Charter violation is valid

Part 1: the objective must be ^^pressing and substantial^^ - i.e. issue must be important enough

<<Part 2: proportionality test<<

2a. ^^rational connection test^^, i.e. methods must match purpose

2b. ^^minimal impairment test^^, i.e. limit must interfere with individual rights as little as possible

2c. ^^proportionality test^^, i.e. the limitation must have a proportionate impact to its outcome

  • If ^^any part fails^^, the violation is ^^not justified^^
  • The courts impose a remedy if the violation is not justified (fails the Oakes test)

Fundamental Freedoms

- Apply to everyone in Canada, regardless of status

- ^^Violence is never protected^^ under the Charter

2a. Freedom of Conscience and Religion

a person’s ^^beliefs^^ are protected under the Charter and ^^people are allowed to act on these beliefs^^

Multani Case:

  • Sikh male student at a public school in Quebec has a kirpan (ceremonial knife) and it falls out of his sheath. ^^Supreme Court challenge: ruled that he is allowed to have his kirpan because of freedom of religion^^

Created a test for freedom of religion:

  1. There must be a ^^genuine belief with a nexus^^
  2. The violation is ^^not trivial or transitory^^ - i.e it is a significant with a long lasting impact

2b. Freedom of Expression

Anything that ^^conveys meaning is protected^^ unless it is violent - including words, acts, gestures, pictures, music, advertising, etc in the conveying of one’s beliefs

2c. Peaceful Assembly

^^Right to gather peacefully in groups^^ - e.g. pickets, rallies, parades - regardless of the reasoning or group

2d. Freedom of Association

^^Right to be a member of a group or organization^^ - including the constitutional protection for a meaningful right to collectively ^^bargain and strike^^ - e.g. unions, religious groups, etc.

B(R) v Children’s Aid Society of Metropolitan Toronto:

  • Child of Jehovah’s witnesses needs a blood transfusion but parents do not consent because of their religion. ^^Child ultimately recieves the blood transfusion^^
  • ^^Civil^^ case
  • ^^Freedom of religion (2a) is trumped by section 1 of the Charter^^

R v Sharpe:

  • ^^Child pornography^^ was found on Sharpe’s computer. He is ^^criminalized for this, because it can lead to a child getting hurt.^^
  • ^^Criminal^^ case
  • ^^Freedom of expression (2b) is trumped by section 1 of the Charter^^

Section 3

^^Canadian citizens who are 18+ can vote in Canada^^

Section 6(1)

The right to ^^enter, leave, and remain in Canada^^

  • Only for Canadian ^^citizens^^

Section 6(2)

The right to ^^move, live, and work anywhere in Canada^^

  • For ^^citizens and permanent residents^^

Section 7

<<The right to life, liberty, and security of the person in accordance with fundamental justice<<

  • ^^Everyone^^ is entitled to these rights

Life

Protection from government action ^^directly/indirectly causing death/risk of death^^

Liberty

Freedom to ^^act without unnecessary government interference^^

  • Quality of life: the right to make choices about one’s own body, personal integrity and ^^autonomy^^

Due Process Rights:

  • Fair trial rights are included because of the consequences stemming from a ^^guilty verdict, a person’s liberty is severely hindered^^ if they are found guilty which is why a fair trial is so important
  • ^^Disclosure^^: the Accused is ^^entitled to the Crown’s evidence against them pre-trial^^
  • ^^Cross examination^^: Lawyers ^^question witnesses that are not theirs^^ in order to ensure fairness in the questioning (and seeing their face and body for non verbal queues)
  • ^^Right to remain silent^^: A person ^^cannot be forced to answer questions^^ (from an official or in court)

R v NS:

  • A woman accuses her uncle of rape, they are muslim and she wears a ^^niqab^^ (very protective face covering) → she ^^must remove her niqab in testifying because of the right to fair trial^^
    • Non verbal queues and considerations are essential in the questioning process
  • ^^Freedom of religion is trumped by the right to a fair trial^^

Security of the Person

Protection against situations where ^^physical/mental health, safety, and bodily integrity are jeopardized^^ by government action

R v Morgentaler
  • ^^Abortion^^ is legalized because of this case and its violation of section 7
  • Life: women took matters into their own hands and ^^died because of unsafe abortions^^ that they did themselves (“back alley abortions”)
  • Liberty: women ^^didn’t have the right to make choices about their own bodies^^ because they didn’t have access to abortion
  • Security of the person: women had to ^^carry unwanted pregnancies^^ because they had no other options, this led to ^^emotional and physical difficulties^^
Carter v Canada
  • ^^MAID^^ is legal in Canada because of this case and its violation of section 7 - previously was illegal because the SCC believed that this would infringe on people’s decision making as they may be ^^pressured^^ into MAID
  • Life: people were ^^killing themselves before they wanted to die^^ because there was no access to MAID
  • Liberty: people ^^couldn’t make choices about their bodies and deaths^^
  • Security of the person: people had to ^^suffer through horrible diseases^^ because of government action with ^^no relief^^ through MAID

- ^^Property rights^^ are never protected under section 7 → ^^expropriation^^ is allowed and ^^no legal arguments^^ can be made under section 7

Fundamental Justice

Laws that impinge on life, liberty, or security of the person ^^must not be arbitrary, over broad, or have consequences that are not grossly disproportionate to their object^^

  • Arbitrary: random
  • Overbroad: too large of a scope
  • Grossly disproportionate: object and impact must be balanced
  • If ^^any part of the test fails, section 7^^ has been violated:
    • If section 7 was violated, ^^then we use the Oakes test, and if it isn’t satisfied, then the courts order a remedy^^
    • If fundamental justice has been complied with then there is no issue regarding section 7’s violation

Section 8

^^Everyone^^ has the ^^right to be secure against unreasonable search or seizure^^

Search Incidental to Arrest

  • At the ^^moment of arrest^^, the police ^^can search personal property that is not a person’s home or electronics^^
    • Cannot search these things due to the expectation of privacy expected → ^^higher expectations^^ of privacy here and will likely store personal/intimate items outside of these places

Fearon Test

  • Searching an ^^Accused’s electronics at the time of the arrest^^ requires this ^^test^^
  • These are the electronic devices physically with the Accused at the time of the arrest

  4 conditions

  >   > 1. The ^^arrest^^ must be ^^lawful with a valid reason^^   > 2. The ^^search^^ must be ^^incidental to the arrest^^, to preserve evidence (reason why they need to look)   > 3. The nature of the search must be ^^tailored to the purpose & they need to be looking for relevant/recent things^^   > 4. Officers must give a ^^play by play of what they are doing^^ and ^^keep records^^ diligently

Customs

  • Customs officers have ^^more authority^^
  • ^^Reduced expectation of privacy^^ at the border
  • There is ^^only one chance for a dangerous person to be denied entry into a country^^
  • Customs officers ^^can search electronic devices without a warrant if there is a reasonable suspicion^^ that something is wrong

Search Warrants

  • When the police get a ^^valid search warrant they can search the premise and the receptacles^^ (like drawers) and ^^additional attached structures^^ at the property
  • They need to get ^^additional structures added to the warrant^^ if they aren’t attached to the property (e.g. a shed)
  • They also need to get the ^^permission for electronic devices found on the property in the warrant^^ - otherwise they can’t search electronics (but they can get a telewarrant or seize it)
Brethalyzer Tests
  • The new law allowed ^^officers to demand a brethalyzer test - even with no signs of impairment^^
  • ^^Field sobriety tests require signs of impairment^^

Section 9

^^Everyone^^ has the ^^right not to be arbitrarily detained or imprisoned.^^

  • 2 types of detention: a ^^detention^^ means that ^^a person is stopped by a government agent & cannot walk away^^
    • ^^Physical^^: an officer ^^physically holds a person in a physical space^^ (e.g. an arrest or holding cell)
    • ^^Psychological^^: officer creates ^^a sense of detention without the use of physical force^^
    • Test: 1. the ^^person feels detained^^, 2. a ^^reasonable person^^ in the ^^same situation would feel detained^^
  • Arbitrary: without valid reason
    • Exceptions^^: 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^^

  • ^^Substantive^^: person must be ^^told of the reason for their arrest^^ with ^^sufficient detail^^
  • ^^Timing:^^ must be ^^told promptly of the reason for their arrest, first reasonable opportunity^^

Section 10(b)

The ^^right to counsel^^ and retain and instruct counsel without delay given at the ^^first reasonable opportunity^^ - provided with names and phone numbers of lawyers

  • Informed of legal aid and duty counsel
  • Must be given ^^privacy^^
  • Police or government agents must ^^ensure that this right is understood^^ will have to ^^give the right again^^ if the person is ^^impaired/provide an interpreter if needed^^
  • Must be diligent in ordering this right
  • Right to counsel may be renewed
  • Exceptions: no right to counsel at ^^roadside stops^^, ^^customs^^ or ^^before a breathalyzer test^^ because this would ^^take too long^^ for all of these tests & ^^substances can dissipate^^