Crim 135 Midterm Review

Strengths & Limitations of the Charter

Judicial review Encroachment on Parliamentary Supremacy Hampering police investigation Protecting rights of persons under criminal investigation Focus on individual rights rather than collective Only affluent persons can afford to challenge the rights Nothing relating to economic equality No accountability for judges making politically contentious decisions. S.33, s.1 reduce the power of the Charter Universality in question in a multi-cultural society.

Ayn Rand

"Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual)."

Albert Einstein

"Never do anything against conscience even if the state demands it."

Cicero

"The purpose of laws is to provide for "the safety of citizens, the preservation of states, and the tranquility and happiness of human life." In this view, "wicked and unjust statutes" are "anything but 'laws,'" because "in the very definition of the term 'law' there inheres the idea and principle of choosing what is just and true." Law ought to be a reformer of vice and an incentive to virtue."

Kimberle Crenshaw

"When feminism does not explicitly oppose racism and when anti-racism does not incorporate opposition to the patriarchy, race and gender politics often end up being antagonistic to each other and both interests lose."

Critical Legal Perspective

- > likely to be founded in a moral framework abt notions of equality (blend of secular naturalism and legal realism) - Not content to simply draw out the structural and social critiques of the application of law; seek also to discuss the historical & political underpinnings of laws - developed out of civil rights movements, feminist movements and anti-war mov'ts • includes discussions around language, social construction, economic disadvantage as a result of structural inequality - Laws are entirely political and the idea of being bound by previous case law or by statutes is absurd as judges regularly find their ways around laws/jurisprudence to write the judgment that they see fit - laws are limited to their application; the written words are subjectively interpreted in the interests of the powerful

Persons Cases, 1929

- British Common Law stated that women were "persons in the matter of pains and penalties, but not in the matter of rights and privileges." - challenged by 5 women in 1927 - granted some women status as legal persons - allowed women to exercise official functions (e.g., Senate, judges), attend uni and practice trades • 1960 before Federal gov't abolished all restrictions on Indigenous women's rights to vote

Critiques of Marxist Legal Theory

- Challenging to find a communal society, devoid of capitalist influences and without significant corruption - marx's ideas were developed in the 1800's; today's capitalist societies look considerably diff than the society Marx was reacting to • consider the impact of globalization and technology - Heavily criticized as utopian and unachievable • Marxist theories have strongly influenced ideas around fairness of wealth distribution

Justice Benjamin Cardozo

- US perspective "Law is a malleable instrument that allows judges to mold amorphous words like reasonable care, unreasonable restraint of trade, and due process to justify any outcome they desire."

General Overview

- Where there is a disagreement over the meaning or application of a word, consider both the British and American approaches. --British: look at the words and language in statute --American: Look further at intention of drafters and any other source that helps to shed light on how a term ought to be interpreted - In Canada, first look at the words in the statute. Where conflict remains, use the principles of Statutory Interpretation.

Anti-Colonialism Starting Point

- acknowledging the traditional lands of the Coast Salish peoples (including the Musqueam, Skxwú7mesh, Stó:lo, Tsleil-Waututh (aka Burrard), and Kwantlen nations - unceded territory (never surrendered or handed over; stolen lands) - moving beyond acknowledging to also consider how we interact here and how we continue processes of colonization on a daily basis

Legal Realism Critiques

- criticizes for its lack of cohesiveness, lack of positive action • it's easier to criticize others solutions' than to come up with one's own answers to challenging issues - focus is on the subjective ind framework of judges, assumes each judges is unable to make rational decisions devoid of influences - suspicious in nature; assumes evil-doing, self-interest and politics at heart of all laws

Anti-Colonial Perspective

- different from Anarchists - state oppression • law was/is a primary tool of colonization - "You cannot be the doctor if you're the disease" — Erica-Irene

Critiques of Critical Legal Perspective

- dismissed by positivists as reactionary and w/o solid idea of how to govern - unsupportive of majoritarian rule, on which most understands of democracy are based • diff view of democracy: requirement for protection of minorities from majority tyranny - unclear ultimate vision, often linked with Marxist ideas and therefore the "utopian" society again - level of reform required by critical legal scholars is significant and therefore considered an impossibility in our current regimes EX: Green Party

Role of Law

- essentially the theory of law: why we have it/need it, how it is/should be used; limitations and strengths of the law - abundance of theories - this class focuses on the theories presented to you in the text and supplements w a few recent developments • positivist, naturalist, legal realists, marxists, critical legal theorists, feminists, anarchists, libertarians • addition of intersectionalist, anti-colonial theories - purpose of discussion on theory: to show you the diff ideas that exist about the role of law

Legal Realism

- law is not as simple as either positivists or naturalists make it out to be - law is always context-specific (based on politics, economics and other social factors that are time and place specific), and reflects the beliefs and ideas of the inds who apply/enforce the laws - law is about predicting what ind judges will do/how judges will answer legal Qs • law in action is more telling than law on books - law reflects certain societal views and opinions: those of the ruling, powerful class - focus on the social, economic and political context - socrates: "law are made by the ruling party in its own interest" - skeptical, or critical in nature

Positivism

- law is the body of rules enforced by a sovereign state - founding framework of most Western legal institutions - rooted in the system of parliamentary supremacy - parliament creates and enacts laws; CJS simply enforces and interprets those laws • separate the politic (what should be the law) from the practical (what is the law?) - laws are a matter of logic & interpretation: they stand apart from one's morality or ideology • protects liberty and democratic institutions • prevents the abuse of political power • process of law > specific content of law - key concerns: process and democratic institutions - key principle: no penalty w/o valid law

Libertarian Perspectives **

- libertarians don't have the community, equity-sharing perspective of anarchists • ppl ought to have complete power over their own lives, to ingest what they want, • freedom from state involvement - lessen the degree of state ..

Limitations of Feminist Theory

- many feminist theories pay close attention to power and voice, pinpointing who has the power to be heard as a key issue in discourses around equality and law • basis on which liberal and radical feminisms are critiqued, too! - limited to topics which affect women's rights - critiqued as assuming that gender is the primary basis on which ppl relate, are discriminated against, etc. • no clear evidence that is true - considered by some to be a threat to men's rights - and what of transgender, two-spirited, gender-fluid or otherwise gender variant people? - bill recently passed in Parliament to include gender identity in the Canadian Human Rights Act and as grounds for aggravated sentencing (hate crime).

Marxist Legal Theory

- offered as a "fusion of morality and science"? - Marx believed that capitalist societies would ultimately fail because they were inherently flawed - people would eventually resist their exploitation, rebel and overthrow the structure, resulting in a more equitable redistribution of wealth/resources - legal institution based on capitalism are inherently .. - individuals are products of their social structures; capitalist social structures produce inequality and oppression - socialist structures would not need human rights protections because human rights violations are a component of capitalism

John Locke

- philosopher who wrote about government - "the end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom."

Critiques of Positivism

- separation of state and religion? Have we achieved this in Canada? - positivism assumes that laws are a valid set of rules by which we all agree to be governed (social contract) - but laws w/o moral basis are often considered weak or even harmful - can maintain classism, racism, sexism by invoking colour-blind, gender-blind type measures - allows for the non-intervention in situation where no legal basis to act - consider various international humanitarian crises EX: Komagata Maru

Feminist Legal Theories

- similar to critical legal theory, but focusing specifically on issues of gender - argue that laws have always been framed based on the male POV, that history has been written by men, therefore doesn't reflect women's experiences of life or law - laws reinforce inequality btw genders as they are inherently present to serve the interests of men - focus on issues such as right to divorce, reproductive rights, exposure of domestic violence as unacceptable, gender discrimination in employment, and access to education

Individual Perspective on the Law

- skeleton that structures our economic, social and political lives - nation's view of human relations, whether in the realm of criminal law, taxation, or constitutional law - our attitudes toward law — and the laws that we create — define us as citizens of our society, politically, economically, and morally - ind perception of justice and injustice define our relationship as citizens to the state

Naturalism Critiques

- subjective — who's version of morality counts? Consider again the debate on polygamy - naturalism is sometimes irrational and can result in widely variant conclusions - too conservative, even reactionary - limits human freedom (e.g., assisted suicide) - comes into conflict with democracy - constrains possibilities of social change

Anarchist **

- the law is a tool used by the state to control/oppress - anarchists tend to view government as unnecessary • we are capable of governing ourselves through cooperative communities and power-sharing - egalitarianism as key principle - coerce - consensus-driven - hypothetical to date

Naturalism

- there exists a higher and permanent law which is not dependent on the will of legislators — "natural law" - "Theological" Naturalism vs Secular Naturalism • religious faith sometimes serves as the basis of natural law (laws are derived from a God); however, today we discuss this in secular terms of morality, or universal principles such as human rights law - key principle: an unjust law is no law at all - may save the environment, intervene in human rights abuses, etc. - the Charter Rights and Freedoms as an example of a form of law that supersedes state or ind desires • ascribes to ideals, or ideas, of inherent rights for humans

Indigenization

- to bring into the academy Indigenous faculty, staff, students, elders, and community members - along with this influx of personnel comes Indigenous knowledge, theories, practices, and symbols - this activity influences the development of services, courses, programming, infrastructure, and community outreach from an Indigenous perspective.

Case Law (Jurisprudence)

--Affected by the hierarchy of the courts in Canada as well as jurisdictional issues (courts within a Province have more say than courts from other Provinces) --Higher court decisions are binding on lower courts, and persuasive on future decisions of same level courts --Distinguishing is a common way for courts to put aside binding decisions that they do not want to follow

Other Sources of law

--Boyd argues that there is much more to sources of law than simply those four categories ----He uses the example of the criminalization of drugs to show how the *social, political, and economic* factors affect the interpretation and resulting creation of laws --Now, we are able to consult transcripts of parliamentary debates on bills so we can determine the original intention behind laws, the reason they were deemed necessary, what they meant to do and how people were primarily hoping to accomplish in enacting laws.

Why do we need rules for the interpretation of Statues?

-A broad term may be used in a statute which can give rise to confusion and uncertainty -There may be errors or omissions when the statute is drafted. -New developments in society can make the words used in a statute out of date and they may no longer apply to the current situation -Judges do not always agree on the interpretation of legal terms, either.

Wrongful Conviction

A decision wherein there are reasonable grounds to believe a conviction was obtained on faulty evidence, bad science, or new evidence sheds doubt on the conviction (improperly obtained conviction)

Canada v Bedford, 2013 SCC 72

-Charter challenge brought by three women in Ontario (Terri-Jean Bedford, Valerie Scott, and Amy Leibovitch) who were off-street sex workers -Challenged the Criminal Code provisions related to adult sex industry work (bawdy house, procuring and living on the avails, and public communication) -Argued that the Criminal laws infringed their rights to freedom of expression, liberty and security of the person -SCC Ultimately agreed with the women and struck down the provisions ---Granted a "Stay" on the decision for one year to allow Parliament to write new laws -----An example of constitutional dialogue ---Government Response: Bill C-36 the PCEPA. -----Criminalizes purchase, advertising, receiving a material benefit from another's sexual services, and communicating in a place in view of playgrounds, schools or parks

The Literal Rule (assumptions)

-Courts cannot interpret words differently even if the result is illogical in the context of the statute -Deference to Parliament -Cannot assume legislators made errors/omissions -Dogs on leash at a park does not apply to cats -It is possible to determine the plain meaning of a text simply by reading it -In reading, as opposed to interpretation, the determination of meaning relies solely on textual factors which are apparent on the "face" of the text -Extra-textual factors,such as legislative history or absurd consequences or the presumptions of legislative intent, have no role to play in reading.

Insite: Canada v. PHS Community Services Society

-Established in 2003 with an exemption from the CDSA -2007 Federal government declines to approve another exemption -Insite clients launch a constitutional challenge arguing that it is a health service, not a criminal law issue, and that their rights to life, liberty, ands ecruity of the person would be infringed if the government was able to shut Insite down. -In 2011, the Supreme Court of Canada ruled that closing Insite would jeopardize the lives and health of its members. As a result, other sites across Canada may now open supervised injection and harm reduction sites.

Legislative, Executive, and Judicial Powers

-Legislative Power, in accordance with jurisdiction, is granted to a specific branch of government, where elected members of Parliament are found ---Foundation of Democracy Executive Power: Prime Minister and Cabinet are responsible for executing (or applying) the laws and decisions made by the legislature Judicial Power: Independent branch of government to interpret the laws and ensure they are enforced in accordance with the Charter Some people find judicial power to be legislative - judges can effectively rewrite laws, scale down overly broad laws, alter the definitions of key terms, limit the sections to particular instances, etc. Considered a "dialogue" with Parliament? See Canada v Bedford, 2013

The Rules of Interpretation

-Plain Meaning Rule (Read the statute literally) -The Golden Rule (read the section in context of the statute) -The Rule in Heydon's Case: (read the statute in accordance with its intentions) -Grammatical Rules

Significance of BNA Act

-Sets out the basis for the Parliamentary system existing today -Identified as Canada's original and defining source of law -Now known as the Constitution Act, 1982 -Sets of Division of Powers between branches of government, provinces, and federal levels of government

What can other sources tell us

-Social factors assist us in making sense of legislative and judicial decisions -Today, we have very disparate directions re:drug policy --Judicial decisions have consistently treated marijuana possession differently than possession of other drugs ----Conditional and absolute discharges along with fines are the most common penalties today. This is true of drugs possession in general; incarceration is no longer the most likely sentence in a demonstration of an evolution of attitudes towards punishing drug use --Reflection of societal changes regarding addiction as a health issue rather than a criminal issues --However, we also have legislation such as the Safe Streets and Communities Act which seems to go in the opposite direction ----SCC recently ruled that harsher sentences are unconstitutional because the mandatory requirements interfere with judicial discretion (R v. Summers)

Criticisms of Canada's system:

-Typically governing party only wins 30-40% of the popular vote -Senate as power to revise or reject laws out of the HoC - unelected

E.g.: the word, "adultery"

-While not a criminal offence itself, grounds for divorce and remains a component of child endangerment (s. 172: corruption of morals) --Everyone who, in the home of a child, participates in adultery... and thereby endangers the morals of the child or renders the home an unfit place for the child to be in, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. --Undefined in legislation -Courts have determined that adultery must involve actual intercourse, other sexual acts not enough, nor bestiality, nor homosexual acts (Babineau v. Babineau, 1924). --It is the proprietary interest that initially sparked concern about adultery - first because a wife was considered property of her husband, but also because it was important to trace the children of marriage to a particular "sire" for inheritance

Types of Feminist Legal Theory

1. Liberal Feminism - challenges the laws but also • calls attention to lack of women in Parliament, on the bench, as partners in firms • seeks reform from within the institutions 2. Radical Feminism - minority view within feminism, but the view that most people seem to equate with feminism • equates intentional oppression with legal institutions, that rather than individuals being influenced by societal values, individuals actively strive to maintain women's oppression through the use of laws. • believes reform of the current systems is impossible as the institutions are built on patriarchal underpinnings in the interests of men

s.15 of the Charter: Equality Rights

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Fundamental freedoms

2. Everyone has the following fundamental freedoms: freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

Enforcement/ Remedies

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Aboriginal Rights and Freedoms

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. 35.(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit, and Metis peoples of Canada. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

Democratic Rights

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. 4. (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members. (2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be. 5. There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Application of the Charter

32. (1) This Charter applies to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

Mobility Rights

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada. (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province. (3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

ss. 7-14 of the Charter: Legal Rights

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has [certain] rights on arrest or detention 11. Any person charged with an offence has the right to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again. 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

R v Oakes

Accused charged with possession of drugs for the purpose of trafficking (s.8 NCA). S. 8 contained a reverse-onus clause. Shifts the burden to the accused when the burden to prove legal issues is generally on the Crown. I: Validity of the reverse onus. Did it violate the accused's right to the presumption of innocence and a fair trial contained in s. 11 of the Charter? If it violates the right, is the violation demonstrable justifiable in a free and democratic society (s.1)? Is the violation considered necessary (or saved)?

R v Askov, 1990 (OVERTURNED)

Accused persons charged with conspiracy. Nearly three years goes by before trial takes place. Accused moves for an acquittal based on the delay. S. 11 (b) Right to trial within a reasonable time infringed? Saved by s. 1? Yes and not justified by s.1. Four factors to consider: 1) The length of the delay, 2) the explanation for the delay 3) a waiver of the right by the accused 4) prejudice to the accused

R v Butler, 1992

Accused sold materials which depicted explicit sex and violence. Charged with publishing obscenity (s. 163 (8) Criminal Code). Issue: How to determine 'obscenity' and does the obscenity provision unjustifiably infringe s.2(b) of the Charter? Yes, s.2 (b) infringed and not justified. Obscenity is explicit sex with violence or explicit sex that places women in positions of subordination, servile submission or humiliation. Pornography that is not degrading or dehumanizing and involves only adults is not obscenity. Test is based on community standards of tolerance.

Self governance of indigenous peoples: example

Akwesasne creates first court in Canada for and by Indigenous people

Operation of Stare Decisis (Chart p. 87)

Binding -SCC -Prov. courts of appeal -Provincial superior courts -Provincial/district courts Persuasive -Equal or higher level courts of other provinces -Privy council

Mobility Rights in Practice

All citizens have the right to come and go from/to Canada. All citizens and permanent residents in Canada have the right to move to, live in, work or have businesses in any province or territory in Canada. Deportation of permanent residents/revocation of citizenship in specific circumstances E.g.: serious criminal conduct People may have to meet provincial requirements to work in some occupations. Provinces may also require people to meet residence rules to receive social services like welfare (Black v Law Society of Alberta, 1989). Extradition: Citizens can be forced to leave Canada through court proceedings to be prosecuted for crimes in another country (Sriskandarajah v USA, 2012).

Superior Provincial Court Jurisdiction

All indictable offences under s. 469 (e.g. murder) where accused has no election (no choice of jury trial) or elected to jury trial Civil Cases over $25,000, libel, defamation Divorce Appeals from lower courts on summary convictions

Restorative Justice (RJ)

Alternative model to the traditional, adversarial style of justice in Canada. Emerged from dissatisfaction with retribution and punishment as "justice" Two Key Elements: Offender Responsibility Reparation of Harm

The Literal Rule (the plain meaning)

Ask: what is the literal, grammatical sense of the word? The Class Rule: --"It is known by its associates; words in the same "Class" should be treated alike The Exclusionary Rule: --The expression of one thing necessarily implies the exclusion of another

Adversarial

Assumption: the "truth is most likely to emerge from a contest of two competing arguments." --Lawyers face off and judge or jury makes a decision. Judge/jury is limited to considering the arguments presented by the lawyers (representing their clients). An "impartial arbiter;" fair process is given more attention than seeking "truth." Self-representation rare, but increasing. o Due to cuts to legal aid and prohibitive costs for legal counsel. o Increased use of paralegals

Rights of Appeal to the SCC

Automatic where Provincial Appeals Courts produce a split decision OR where an appeal overturns an acquittal Otherwise, SCC will grant permission: "leave of appeal"

Original of Canada's Constitutional Law

BNA act, 1867 Act passed by Britain, outlining how Canada should be formed Set out a Division of Powers (ss.91 and 92) between the federal and provincial governments Provided for a "bicameral Parliament" where the senate is in place to approve legislation passed in the house. Required final approval for legislation

BoP standard of proof

Balance of Probabilities; plaintiff must demonstrate more likely than not that respondent is liable

BARD standard of proof

Beyond a reasonable doubt; crown must demonstrate accused's guilt beyond a reasonable doubt

Act to prohibit the importation, manufacture, and sale of opium for other than medicinal purposes, 1908

Boyd suggests that the criminalization of opium in 1908 was not the result of identified public concern or safety issues ---The substance had been regulated in the provinces for over 40 years and was not criminalized in England or anywhere else in the British Empire at the time ---Instead, Boyd suggests that the criminalization of opium had economic and racial motivations

Patriation

Bringing home the constitution Since the BNA, 1867 was a British document, Canada wanted to draft its own, Canadian version. --Problematic as there was no predetermined way of changing the constitutional document (amending formula) --Require unanimous consent of Provinces? Veto powers for the two largest Provinces?

Hybrid Offences

Can be dealt with as summary or indictable based on discretion of crown counsel Consideration to seriousness and context

Statutes

Canada subscribes to Parliamentary Supremacy ---As such, statute law (codified law) should take precedence over every other source of law Theoretically, Parliament represents the will of the people (elected) and Parliament is accountable to the people via elections. ---Judges, since they are appointed and not elected, are not thought to be as accountable Laws are created both by the federal and provincial governments, in the House of Commons (federal) or the Legislative Assemblies (provincial)

Charter Violations

Charter violation related to law -(if related to acts 24(1) or (2) --S.1 Oakes Test ---Conclusion: Unjustifiable limitation ----Case Successful -----Seek appropriate remedy --S.1 Oakes Test ---Conclusion: justifiable limitation ----Case dismissed -----Law upheld

Youth and Family Division of Provincial Court

Child Custody, family maintenance, guardianship issues Youth Criminal Justice Act measures Notably less formal

Federal Court of Canada Jurisdiction

Civil disputes relating to federal government and responsibilities E.g.: maritime cases, immigration, tax law Has trial and appeals divisions, administered by the federal government

Burdens of Proof

Civil: Balance of Probabilities (BoP) Criminal: Beyond a Reasonable Doubt (BARD)

Goodwin v BC (Superintendent of Motor Vehicles) 2015 SCC 46

Concerned BC's automatic roadside prohibition scheme challenged by several persons who received various suspensions. They asserted that the Arp scheme invaded federal jurisdiction related to criminal law. SCC determined that Provinces are welcome to enact legislation concerning driving regulations under Provincial "property and civil rights" jurisdiction. While there may be similar criminal offences, having "mirror civil offences does not violate the division of powers.

Levels of BC Courts

Court of Appeal: Lawyers' court, hears appeal Supreme Court of BC: BC's superior court - hears serious criminal charges, summary appeals, etc Provincial Court: most criminal, all youth and family, small civil, and traffic/by-law cases

Ultra Vires and Intra Vires

Courts are often called upon to determine whether a law is intra vires a level of gov't leg. Authority --Intra vires means that the govt has legal authority to act found in its legislative powers --Ultra vires means the government has overreached and tried to legislate in an area over which is does not have powers

Amending Formula

Created what becomes known as a 7/50 Formula: --Requires support from the House of Commons and the ---------Senate, but also support from 67% of the provinces representing at least 50% of the population of Canada --Could be only 7 provinces in agreement; must include either --Ontario or Quebec to make it to the 50% mark. --But, no Province officially given veto power

Criminal Division of Provincial Court

Criminal Code s. 553 offences Summary Conviction offences Provincial Offences *May* hear some indictable offences

Provincial Court Jurisdiction

Criminal Division, Youth and Family, and Small Claims Divisions

Rights to Appeal

Crown: against acquittal on questions of mistakes in law Accused: against conviction on questions of law or law and fact Either party: against sentences except where such is fixed by law

Legal Conflicts

Division of powers has been subject of much statutory interpretation Often legal areas overlap and there is a dispute as to which govt ought to be able to legislative --Consider the case of PHS CSS v. Canada To complicate matters further, intergovernmental cooperative agreements are often in place --E.g. equalization payments to poorer provinces so that all Canadians have equal access to similar services

R v Luxton (1990)

Does the 25 year (life) sentence constitute "cruel and unusual punishment" and therefore infringe s. 12 of the Charter Example of judicial deference to Parliament: View that parliament made the rule, and that is the public opposed it they could vote new government Example of judicial deference to Parliament

Categories of Law

Domestic Law: --Public (constitutional, criminal, administrative, taxation, international) --Private (Contracts, torts, family, property, wills, etc) International Law: --Countries sign on to treaties/conventions and agree to bring their domestic laws into alignment with international laws --Challenge becomes what to do when a country doesn't ratify the laws

Features of Youth Court

Due process Open Court Conducted by a judge alone Publication of names is prohibited

Enacting the Charter

Due to the criticisms of the Bill of Rights, and after much debate for nearly two decades, then Prime Minister, Pierre Trudeau drafted the Charter of Rights and Freedoms. Considered a necessary restraint on Parliamentary Supremacy, needed to secure the core principles of justice on which Canada was founded. Major legal distinction from the Bill of Rights: Entrenched as Constitutional Law in Canada. Due to the limitations clauses in the Charter, others suggest that Parliamentary Supremacy has not actually been affected.

Charter of Rights and Freedoms

Emerged out of the limitations of the Canadian Bill of Rights, 1960 and the international movement to protect human rights and civil liberties. Universal Declaration on Human Rights, 1948. Entrenched in the Constitution Act, which means it, too, is supreme law in Canada. All other legislation must come into alignment with the Charter, unless the courts find that a certain right or freedom needs to be limited in accordance with the principles of a free and democratic society.

Division of Legislative Powers (SS. 91 and 92)

Each province considered self-governed, with limitations --Allows provinces a significant degree of control over matters that are seen to be local The Federal government has jurisdiction over matters deemed national in nature, yet the Provinces retain power over their individual territories. --Feds retained the residual power (POGG: Peace, Order, and Good Government Exactly which level of government gets control over what is detailed in ss. 92 and 92 of the Constitution, and has been the subject of much legal debate over the years.

Effect on Parliamentary Supremacy

Effect on Parliamentary Supremacy Some suggest that legislation such as the Bill of Rights, or the Charter, undermines parliamentary supremacy. Elected members ought to legislate; they are accountable to the citizens though democracy. Others suggest that the inherent rights and freedoms in these documents allow citizens to exercise their democratic rights more fully, thereby increasing democracy and citizen engagement in Parliament. Freedom of Expression, Association, Religion, Right to Equality, security of the person, etc.

British North America Act, 1867

Establishes Canada as a self-governing nation with few ties to the United Kingdom Ultimate legislative authority retained by England through Governor General First constitution - the document that establishes the legal foundation of a Canadian state Originally composed of Ontario, Quebec, Nova Scotia, and New Brunswick American invasion key instigator for move towards a united system Dates for remaining provinces: Man. 1870, BC 1871, PEI 1873, Alb and Sask 1905, Nfld 1949

Grammatical Principles

Expression of excludes the other Tax law: since employment, property specifically listed, other sources of income not taxable Ambiguous words can be interpreted based on the context in which they appear "Same kind/nature" rule: where specific words are followed by general words, then the general words are limited to things of the same kind (that have appeared prior). E.g.: Cats, dogs, and other animals = other domestic animals. No lions. "Associated words' rule: a word is known by the company it keeps (Subsequent specific words). E.g. sins, such as sloth, gluttony, envy, or pride = safe to assume referring to seven deadly sins Mirror images of same principle

Supreme Court of Canada

Final appeals court composed of: Nine judges appointed by federal government (3 from QC, 3 from ON, 2 from West, 1 from Atlantic) "Lawyers' Court": no evidence heard, no witnesses, merely questions of law

R v Jordan & R v Williamson (2016) (NEW LAW)

F: Dial-a-dope operation; accused charged in Feb 2009, trial began in Sept. 2012. Accused asserted his Charter rights under s. 11(b) were infringed by the 50 month delay. TJ dismissed application applying case law and asserting institutional delay less impact than Crown delay. I: Correct application of Morin/Askov? Time to revisit delay framework? R: Previous framework served to facilitate a "culture of delay" in the system. Time for a new framework with "presumptive ceilings". 18 months for provincial court trials, 30 months for superior court trials. Where exceeding the ceiling, onus on Crown to demonstrate the delay was reasonable

R v Boudrealt (2012)

F: Intoxicated accused waits for cab in his car. Leaves engine running for heat. Cab arrives and calls police. I: Did the accused have "care and control" contrary to s. 253(1) of the Criminal Code? H: No, look to the purpose of the offence and interpret accordingly. R: Provision as intended to deter, or prevent intoxicated person from driving. Here, there was no risk of the accused driving, given that he had called a cab. Accused was able to show that he did not intend to assume "care or control," meeting the evidentiary threshold in s.258

The Golden Rule: Example (R v Audet)

Facts: 22 y/o man, shortly after his teaching contract ended, had sexual contact with a 14 y/o girl whom he had taught the previous year in eighth grade. At the time of the sexual encounter the accused was aware that his contract would be renewed the following year and that the girl might become his student again ---153. Every person who is in a position of trust or authority towards a young person... and who for a sexual purpose touches... the body of a young person... is guilty of an indictable offence Question for the court: Did he occupy a position of trust or authority at the time of the sexual contact ---Authority: any relationship in which the accused exercises power; not necessary for formal relationship (teaching contract) to exist. Current approaches to determining "meaning" -Text ---Case law ---Legislators' intentions ---Dictionary/books of authority ---Consequences application ---Audience ---Context

Canadian Bill of Rights, 1960

Federal statute, applied only to Federal laws and governments. Began the codification of a set of core principles on which Canadians generally agree. Increased the role of judges as interpreters of the laws and as a restraint on governmental power.

How does something become law?

First Reading: introduce Bill into the legislative body (federal or provincial) --Bills mostly die at this stage Second Reading: the government sets out the purpose of the bill and a debate occurs. Sent to a committee for further debate, even requiring public debate or consultation Third Reading: The bill is returned to the legislative body. Vote and then over to either the Senate (Federal), then Governor General, or straight to the Lieutenant Governor (provincial) for approval

Additional amending formula

For matters concerning the queen's representatives, restructuring in the House of Commons or Senate, use of French of English, comp. of SCC --Note, if language matter is localized to a Province, only the federal government and the province in question need to agree Requires unanimous approval from Federal and Provincial governments Thought to be of such national significance that a higher threshold for amendment was necessary

R. v Oakes cont'd

H: Yes, the section violates s. 11 rights. No, this violation is not necessary. R: In general, does the benefit to be derived from the legislation outweigh the seriousness of the infringement? Ultimately fails the proportionality test: no rational connection between the fact of possession and the presumption of trafficking. Result: the section of the NCA declared to be unconstitutional- of no "force or effect."

Related Case Law to Democratic Rights

Harper v. Canada, 2004: The Court decided that a law limiting spending in election advertising was justified under section 1 of the Charter. Spending limits in elections can be important to encourage fairness and help voters have confidence in the election process. Sauvé v. Canada, 2002: People do not lose their voting rights because they are in prison . McEwing, 2013: Robocalls misleading residents as to their polling stations. Considered fraudulent behaviour (result in 9 month incarceration).

appeals courts' jurisdiction

Hear questions of law alone based on previous evidence presented - no evidentiary trials

R v Keegstra, 1990

Highschool teacher who taught students anti-semitism, espousing hate speech contrary to s. 319(2) of the Criminal Code: Everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group. Hate speech is included in freedom of expression under s.2 of the Charter. Hate speech conveys meaning, even though the meaning is offensive to many people. But, limiting hate speech was justified under s. 1 of the Charter. The goals of protecting people from harm and encouraging tolerance were more important.

Judicial Precedence

Historical decisions by judges on similar issues or facts ---Based on the idea that we should all be treated the same way as a matter of fairness ---But, of course there are mitigating and aggravating factors to consider ----Mitigating: circumstances that make someone's actions more reasonable or understandable ----Aggravating: Circumstances that make someone's actions more reprehensible, more serious Ability of the SCC to reverse itself ----Consider again, Canada v Bedford. The applicants had to show there was a change in circumstances, or new evidence, that justified the SCC's revisiting of the issue due to the 1990 Prostitution Reference [1990] 1 S.C.R. 1123

Alternative Styles of Justice

Inquisitorial system where judge asks the questions directly of key persons involved. Common in European countries under civil law, as opposed to common law. Lawyers can still represent clients and make arguments, but judges have more flexibility in questioning. Modern approaches in common law systems also increasingly offer alternative dispute resolution such as arbitration, mediation, diversion, restorative justice.

Remedies

If a law the violates Charter, the court can: strike out the part of the law that violates the Charter interpret a law narrowly so that it fits Charter rights 'Read in ' features to the law so that it meets Charter requirements declare that you are not affected by the law that violates your Charter rights (a "constitutional exemption") Where government action under a law violates the Charter: Declarations (Statement) Injunctions (Making someone act a certain way) Damages (Money) If Charter rights are violated in a criminal case: Stop the criminal prosecution, order a new trial. Exclude evidence under section 24(2),

The Oakes Test

If right/freedom is violated, turn to s.1 and determine. -The objective of the legislation ----must be pressing and substantial -The means employed to meet the objective ----Must be rationally connected ----Must be minimally impairing ----Must be proportional

The Golden Rule

If the literal rule makes no common sense, then use common sense Tones down the 1st rule to avoid absurdity The Narrow Application: where words are capable of having more than one meaning the meaning which is least absurd in the section should be used. The Wider Application: This is used to avoid a repugnant result (contradictory result against general Canadian Law).

S.10 - Rights upon arrested

If you are arrested or detained, you must be given reasons for this right away; the police must tell you of your right to a lawyer; if you say you want a lawyer, police must stop questioning you until you have a chance to speak with a lawyer privately. If your detention is not legal, you must be released. R v Orbanski, 2005 generally police need to inform people of rights prior to detention, except in the case of drinking and driving roadside stops. R v Brydges, 1990 If a person who has been arrested is hesitant to speak to a lawyer because of cost, the police must let the person know of free legal help.

S. 11 - Rights when charged

If you are charged with a criminal offence you have the right: To be informed of the offence without unreasonable delay To a trial in a reasonable time To be silent (the right not to testify at your own trial) To be presumed innocent until proven guilty To a fair and public hearing by an impartial and independent court. To reasonable bail (unless there is good reason to be refused bail) To trial by jury for serious crimes (except for military offences decided by a military tribunal) Not to be convicted of a crime unless the act was a crime at the time it happened Not to be tried or punished twice for the same crime (the rule against double jeopardy)

Open Access

In general, all Canadians can observe the proceedings of courts. Exceptions: youth trials where in the interest of "public morals the maintenance of order, or the proper administration of justice." Can bar public access to adult trials under similar grounds (s. 486(1). o Ban on publication of proceedings more likely. o General ban on publication of youth names. o Ban on publication of preliminary hearings (mini-trial to determine if enough evidence to proceed) common. o Publishing names raises issues of trial fairness, presumption of innocence.

Current issues re: Federalism

Indigenous rights to self-government land treaties Quebec as a society in Canada Senate reform Continued tensions regarding the charter of rights and freedoms Judicial activism v deference to parliament

Canadian Youth Legislation

JDA: Juvenile Delinquents Act of 1908 YOA: Young Offenders Act, 1984 YCJA: Youth Criminal Justice Act, 2003

Current Controversies in the Legal Sphere

Juries: are they actually one's peers? can they comprehend legal issues? Court delay and resources Wrongful Convictions Victim involvement in sentencing and trials Increased use of alternative dispute resolution measures

Intersectional Theories

Kimberle Crenshaw - draw out other forms of oppression (race, class, sexual orientation, age, ability, religion) as equally as important as gender in analysis, and perhaps more important than gender in some times and places - dismisses idea of one form of feminism or a feminist perspective; while gender discrimination is present in all societies, other forms of oppression like classism, racism, homophobia are also present and can have more impact - anti-racism/anti-oppression requires those with privilege in society to make room for the voices and perspectives of those without - generally see the law as a tool that could be used for good, although it has historically been a tool of oppression

Custom (convention) and Books of Authority

Laws are often codified customs If area without written law, turn to custom (or convention for constitutional issues) to determine how to proceed ---Space for oral histories and Indigenous legal principles, too. Books of Authority- same as current practice of using textbooks, research reports and expert witnesses to provide court with information about a law, phenomena, or practice. ---Charter challenge in Bedford v. Canada decision has 25,000 pages of evidence ---Use of "experts" by the courts increasing as social impacts of laws and enforcement become more clear.

Branches of Government

Legislature --Parliament, MPs, committees, GG --Examine debate bills, GG assents to statutes ----Makes law The executive --Cabinet ministers, public sector ----Decide policy draft bills, enforce and administer Acts ------Initiates and administers laws The Judiciary: judges interpret law

Summary offences

Less serious offences. Maximum penalty of $5000 and/or 6 months in jail

Sources of Law

Main sources --Statutes (legislation) --Cases Other sources: --Convention --Books of Authority Note - source of law are not solely Canadian: we used to be bound by English laws and today still consider English, American, Australian laws to be HIGHLY INFLUENTIAL

Small Claims Division of Provincial Court

Minor civil cases, amounts less than $25,000

Indictable Offences

More serious offences. Maximum penalties vary (life in prison) Some have minimum penalties Offenders can elect to by tried by a judge alone in provincial or superior court, or by judge and jury in superior court

Youth Sentencing

Most common: Probation (58%) Community Service (25%) Conditional Discharge and Other (37%) Custody - followed by period of community supervision (15%) Restitution (3%)

Defining "Aboriginal rights"

Much debate re definitions. Must the activity have been practiced prior to European contact ? What kind of evidence is satisfactory to prove the case? (oral history, scientific verification?) Does this "freeze" rights to some point in the 1500-1600's and ignore rights, freedoms, activities that evolved after that point? Generally includes rights to land (treaty issues), rights to hunting/fishing/gathering, right to self-determination/self-governance, rights to practice culture, language, religions (cultural integrity), right to enter into treaties.

Statutory Interpretation

Necessary to Define Terms in statutes and determine whether statues apply in particular contexts ---The judge's role Example: if a hound is not a "dog" and a statute refers specifically to "dogs", then the legislation does not apply to hounds

Characteristics of Canadian Courts

Open access, Formality, Adversarial

Peaceful assembly & association

Peaceful assembly has not had a major impact on the case law. includes the right to meet as part of a committee or as workers. Association provides individuals the right to establish, belong to and maintain to any sort of organization. Used in the labour context allowing employees the right to associate with their or other similar group to represent their interests in labour disputes or negotiations. Includes a procedural right to collective bargaining. Concerns re: if national security issue, can be targeted for association with "terrorist" groups. Unclear definitions, suspension of Charter procedural rights, no accountability for CSIS.

Leave of Appeal from the SCC

Permission from the SCC to hear a case on appeal, granted where decision is: of national interest and of public importance e.g. constitutional issues in statutes, common law rules, etc e.g. a conflict between courts of appeal in different provinces or decision requiring uniformity across provinces e.g. a novel point of law e.g. interpretation of federal law or laws held across multiple provinces

R v Bedford (2013)

Plaintiffs argued ss. 210, 212 and 213 infringed s.7. SCC agreed and declared the prohibitions unconstitutional violations of their rights. "the laws do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks." Results in the PCEPA: Protection of Communities and Exploited Persons Act. Same laws re-enacted, with new "objective" to pass s.1 analysis: the prevention of the institutionalization of the commodification of sexuality and exploitation of women and children.

What are the 7 legal perspectives?

Positivism, Naturalism, Legal Realism, Marxist Legal Perspective, Critical Legal Perspective, Feminist Legal Perspective, and Anarchist Legal Perspective

Overview of the Charter of Rights and Freedoms

Preamble: Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law S.1: Limitation Clause: No right is absolute. S.2: Fundamental Freedoms Ss.3-6: Voting & Mobility Rights Ss.7-14: Legal Rights S.15: Equality Rights (implemented 3 year after initial promulgation of the charter) - provincial governments in the early 80s requested more time to bring their laws up to standard Ss.16-23: Language Rights S.24: Remedies: exclusion of evidence, other remedies. Ss. 25-29: Specific protections: Aboriginal Rights, multicultural heritage, gender equality Ss.32-33: Application & opting out provision. S. 35: Rights of Aboriginal Peoples of Canada

Key Conflicts under s. 2(b): Freedom of Expression

Prohibited Speech (still considered expression as it conveys a meaning): "Hate Speech" Criminal laws prohibiting people from advocating genocide or inciting hate against an "identifiable group" is constitutionally justified. Indictable offence valid (Keegstra) Look for "extreme speech" that goes beyond ridiculing (Whatcott). Obscenity Ban on publishing "obscenity" upheld under s.1 due to concerns about minority rights and equality rights. (Butler, Little Sisters, Sharpe)

Rejection of the Constitution Act, 1982

Quebec's legislative assembly voted to reject the constitution in 1981 --Petitioned the SCC to declare that constitutional amendments required the agreement of Quebec and that Quebec should therefore have a veto power. SCC dismissed arguments, finding no requirement for unanimity in the BNA act nor in customs. --Found that customs/conventions showed the Federal government ought not proceed unilaterally

Structure of Canada's government

Queen's Representative: Governor General -Legislative Power (Parliament) ---House of Commons ---Senate -Executive Power (Prime Minister) ---Cabinet -Judicial Power (Supreme Court of Canada) ---Provincial and Federal Courts ---Lower, superior, and appeals

S. 7: Life, liberty & security

R v Morgentaler, 1988 Accused performed abortions in contravention of the criminal code. Did the section requiring women to obtain a certificate of approval prior to being allowed to have an abortion violate women's s.7 rights? Was the violation justified? Yes, it does violate; and no, it is not justifiable. It was "state interference with bodily integrity and serious state-imposed stress." The delay involved in the process increased complication and mortality rates during an abortion, and had a psychological impact upon women. This was contrary to the principles of fundamental justice. "A defence should not be illusionary or so difficult to attain as to be practically illusionary."

Role of the Charter

Restrains elected governments from passing discriminatory laws by enabling the court to review legislation against protected rights and freedoms. Examples of discriminatory laws: 1884 - Indian Act outlaws cultural and religious ceremonies, like potlatches 1900 - Chinese Immigration Act sets head tax at $10 1900 - Dominion Elections Act prevents minorities from voting in elections 1928 - Supreme Court rules that women are not "persons" under the law 1928 - Alberta government passes a law ordering sterilization of patients in psychiatric hospitals 1940 - Communist Party is outlawed under the War Measures Act 1942 - Japanese Canadians have their property taken away and are sent to internment camps 1960 - Status "Indians" were not allowed to vote until 1960. Under the pre-Charter Indian Act, Aboriginal women lost their Indian status if they married non-Aboriginal men.

Formality

Ritual garments robes, formal business attire Language: my lord/my lady; your honor; my friend Essential to maintain respect for the courts? Elitism? Demonstration of the seriousness of the situation?

R v DB, 2008

Ruled presumptive offences' reverse onus unconstitutional

Language Rights (ss.16-23)

S. 16. (1) English and French are the official languages of Canada and have the equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. S. 22: existing rights to use languages besides English and French are not affected by the fact that only English and French have language rights in the Charter. if there are any rights to use Aboriginal languages anywhere they would continue to exist, though they would have no direct protection under the Charter. S.23: Right to Minority Language education French in English majority provinces, English in French majority provinces.

Return to the "persons" case

S. 24 (BNA 1867)) The Governor General shall from time to time, summon qualified persons to the senate; every person so summoned shall become a member of the Senate Were women included in the word, "persons?" Decision: SCC said, no. "person was used on many statutes which did not apply to women. In the political and social context, women were not considered to be "persons" Appeal to the privy council overrides SCC

The Constitution Act, 1982

S. 52(1) The Constitution of Canada is the Supreme Law of Canada and any law that is inconsistent with the provision of the constitution is, to the extent of that inconsistency, invalidated

Ss. 12-14

S.12 - Protection from cruel and unusual punishment People are protected from cruel and unusual punishment such as punishment that degrades human dignity, is out of all proportion to the offence, or shocks the public conscience. John Howard Society v Canada, (2015) S. 13 - Protection from self-incrimination If you are a witness, what you say in court cannot be used against you in another court case, except in perjury charges. If you tell a falsehood while under oath/affirmation, you can be convicted of perjury. S. 14 - Right to an interpreter You have the right to an interpreter in a courtroom if you are a party or a witness in a case and do not understand or speak the language used in the court. You also have this right if you are hearing impaired.

The Notwithstanding Clause

S.33(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in s. 2 or ss 7-15 of this Charter. Operates for up to 5 years Quebec used s. 33 to override freedom of expression and equality by requiring signs to be in French. Saskatchewan and Alberta used it to bar essential services employees from striking. A government cannot use section 33 to ignore democratic mobility or language under the Charter.

(Hierarchy of Canada's Courts)

SCC -Federal Court of Appeal --Federal Court -Provincial Courts of Appeal --Provincial Superior Courts ---Provincial Court

Division of Powers

SS. 91 and 92 delineate which level of govt' has jurisdiction (right to govern) over legal matters S 91 identifies all areas to be governed by the fed gov. Essential everything not in 92 and matters in 91 and the POGG power S. 92: all matters to be governed by Provincial governments -Exclusive jurisdiction - the FEDGOV not allowed to create contradictory laws in the province Shared powers -Old age pensions -Immigration -Agriculture -Health -Environment

Scope of s.15

Section 15 recognizes the dignity and worth of everyone in society. It is not always a question of treating everyone the same, but looking at circumstances to ensure everyone benefits equally from the law. - Gladue & s. 718.2 of the Criminal Code entirely constitutional. It means protecting vulnerable people from discrimination, and removing discriminatory barriers that put people at a disadvantage. Remember, the Charter applies to laws and government actions. It generally does not apply to private business or personal relationships.

Principles of Sentencing (s.718.1 and 7.18.2

Sentence proportionality to gravity of offence and degree of culpability of the offender Offender should retain liberty unless more restrictive sanctions are appropriate Any sanction other than imprisonment that are reasonable in the circumstances should be considered - especially for indigenous offenders (and other groups facing over-incarceration)

Statute of Westminster, 1931

Severed Canada's legal system from England No law hereafter made by the Parliament of the UK shall extend to any dominion otherwise than at the request and consent of that dominion In practice, developed into severed judicial system too.

Leskun v Leskun, 2006

Spousal Support: s. 17(6) of the Divorce Act prohibits the court from considering spousal misconduct in awarding support to a spouse Not meant as a revenge award, or penalty But, Leskun v Leskun tells us that the courts can consider the "emotional consequences" of the misconduct as a matter of the "condition, means, needs, and other circumstances of the spouse." Reading in, "emotional consequences of misconduct" Example of a case where judges engage in judicial activism

Types of Criminal Offences

Summary Offences, Indictable Offences, Hybrid Offences

Key conflict areas (s.2(a))

Sunday closing laws - (infringes non-christian's rights) Accommodation of religious practices (accommodation for religious practices, holidays, etc. in public services) Parental Rights (re blood infusions and other medial treatments) Marriage solemnizing Education (access, curriculum, wearing of a "kirpan," (employing Buddhist practices of mindfulness?) Religious accommodation in court proceedings. (R. v. NS (2012); Ishaq v. Minister of Citizenship and Immigration (2015))

Canada's Court System

Supreme Court (highest) - Military Courts - Federal Courts - Provincial Courts of Appeal --Provincial/Territorial Superior COurts ---Provincial Courts

Difference in focuses between Traditional Justice (TJ) and RJ

TJ: Focus is on which laws have been broken, due process, then punishment for unacceptable behaviour. RJ: Focus is on what harms have been experienced by victims, how to meet their needs to heal, and how to repair relationships prevent future harm.

Constitutional Law

Tells us about Canada's governing structure, how the separation between provincial and federal governments should work, the rules by which our governments must goern and the rights, freedoms, and to a certain degree responsibilities of Canadians Includes both the Constitution Act and the Charter of Rights and Freedoms Constitutional law is unique in how it can be altered: Cannot simply pass a new law in parliament. As entrenched has its own unique amending formula (Provincial involvement)

S. 1: Limitation Clause

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Any limitation of rights/freedoms must be demonstrably justified in a free and democratic society.

Freedom of Conscience

The freedom has not created a great deal of case law. R v Morgentaler (1988). Finding laws against abortion to be a breach of the rights under s. 7 of the Charter, J. Wilson then argued this infringement could not be justified as it was inconsistent with fundamental justice, too. Abortion laws breached freedom of conscience: "the decision whether or not to terminate a pregnancy is essentially a moral decision, a matter of conscience "... conscientious beliefs which are not religiously motivated are equally protected by freedom of conscience in s. 2(a)."

Modern "Cardinal Rule"

The principles are guidelines to be used as dictated by the specifics of individual cases. + Consider textual meaning, legislative meaning, acceptable consequences, presumptions of intent = Consider the words in their entire context, in their grammatical sense harmoniously

Scope of s. 7 Rights

The rights under s. 7 are not just about criminal law. the right to life might involve health care. The right to liberty can mean the right to act without state interference - such as a person deciding when to die (Rodriguez v Canada, 1993), or seeking safer methods of injection for an addiction (Canada v PHS Community Services Society). Security of the person is about protecting people from serious harm to physical or psychological well-being. This might arise where the state was taking children from parents (NB. v. G (J), 1999) or deporting someone to a country where he or she faces torture (Suresh v. Canada, 2003).

Most common youth crimes

Theft, simple assault, B&E, possession of stolen goods (Youth violent crime relatively rare)

What are the 2 different naturalist perspectives

Theological and secular

External Aids to Statutory Interpretation

These aids found outside of the statute which may help judges understand the meaning of a statute more clearly Dictionaries (can include looking to French term, too Historical setting (note changes in understanding terms) Previous statutes Earlier case law Hansard (record of Parliamentary debates) Law Commission Reports International Conventions

Internal Aids to Statutory Interpretation

These are things found within the statute which help judges understand the meaning of the statute more clearly: The long and the short title The Preamble: Preambles often used to establish a statute's general purpose, to determine if it is a declaratory or public order statute, to ascertain its jurisdiction over person and its territorial effect. Used to refer to the social mischief - the social problem it was attempting to remedy Definition sections (eg. S.2 of the Criminal Code) Schedules Procedural component to enact legislation Headings

Legal definition of youth in Canada

Those aged 12-17

Purposive v Literal Approaches

Today, most Canadian courts follow a purposeful approach to interpretation. With the literal approach, (plain meaning) judges give their literal meaning Their job not to make the law, but to apply it With the purposeful approach, judges try to decide the purpose of the statute Ask: What was Parliament attempting to achieve The courts respect the actual words used but rather than stick rigidly to them, interpret them in the context in which they appear

Royal Proclamation of 1763

Tries to bring British rule to Quebec (Civil law system) Recognizes "Aboriginal" right to self-government; land claims continue today.

The Province of Canada

Upper Canada -Ontario ---Assigned most powers ---Use of Britain's Common Law system Lower Canada -Quebec ---Civil Law ---Roman Catholic Influence

The Rule in Heydon's Case (The Mischief Rule)

What mischief was the statute trying to prevent? Interpret the wording accordingly Mischief: a defect of limitation that the law was attempting to control/remedy Gorris v Scott: sheep go overboard Act's purpose was to prevent the spread of disease, not ensure livestock remained on the ship The failure to cage the sheep did not fall within the "mischief" of the act Early iteration of the 'purposive approach'

Interpretation in Criminal Law

Where there is ambiguity in criminal law, "that interpretation which is more favourable to that accused must be adopted." (USA v Dynar, 1997) Underlying principle requiring conflicts to fall in favour of accused person wherever there is more than one reasonable interpretation

R v McGraw: literal rule in practice

Whether a threat to sexually assault a young woman was contrary to s. 264.1 of the Criminal Code, uttering a "threat to cause death of serious bodily harm to any person." Should "serious bodily harm" take its meaning from death, or does serious bodily harm refer to harm of a lower threshold than death On plain reading, no interpretation as no ambiguity in the term. "Other serious bodily harm" refers to harm other than death, that is serious in nature.

Can youth receive an adult sentence?

Yes, if over 14 years of age and old for an offence where an adult can be sentenced to 2 or more years

S.9 - Arbitrary detention

You have the right not to be arbitrarily detained or imprisoned. This means you cannot be stopped, held for questioning, arrested or put in jail unless the police have a good reason to do so. R v Mann, (2004) (Detention for the purpose of investigation does not violate s. 9) R v Ladouceur, (1990) (Random spot checks of drivers can violate s.9, but might be justifiable under s. 1

S.8: Unreasonable Search and Seizure

You have the right to a reasonable expectation of privacy. Limits how and when police or other officials can search you personally; search your property; or use wiretaps. Limits the power of the state to take your property. In most situations, police or other officials must get a search warrant from a judge before they can search you or your property. R v Tessling (2004) Heat-seeking helicopters ok.

To prove a s. 15 violation you must show:

You were treated differently from others because of a ground of discrimination: race, national or ethnic origin, colour, religion, sex, age, mental or physical disability) or an analogous reason(a personal trait like sexual orientation, marital status, or citizenship) E.g.: Halpern (2003), The common law definition of marriage, which defined marriage as between one man and one woman, violated s.15. The unanimous Court found that the exclusion of same-sex couples was a clear violation of the Charter; an unreasonable infringement of s.1. Results in a change to law, redefinition of civil marriage to involved two persons.

Types of Provincial or Territorial Courts

Youth Justice Court Family court Traffic Court Drug Treatment Court Domestic Violence Court Community Court First Nations/Indigenous Court Criminal Division

Objectives of Sentencing (s. 718)

a) to denounce unlawful conduct b) to deter the offender and other persons from committing offences c) to separate offenders from society, where necessary d) to assist in rehabilitating offenders e) to provide reparations for harm done to victims or to community f) to promote offender responsibility and acknowledgement of harm to victims and community

Decolonization

is about openly and truthfully acknowledging the colonial past and dealing straightforwardly with the consequences of this past, be it physical, psychological, or social. 'Decolonization' involves Indigenous peoples and their allies, who work together to 'decolonize-Indigenize'. This work is action-oriented, reflected not only in social movements like Idle No More but in improvements in the everyday lives of people and communities. Education, including the renewal and strengthening of Indigenous cultures and languages, are key components of these processes."