Charter Limits

Question 1

What is in the charter?

Answer 1

Limitation to the authority of states

Question 2

What are the seven rights listed in section 8-14 of the charter? (procedural rights)

Answer 2

1. Everyone has the right ot be secure against unreasonable search or seizure
2. Cannot resort to unreasonable search or procedure
3. Everyone has the right not to be arbitrarily detained or imprisoned
4. Everyone has the right on arrest to be informed promptly of the reason for detention and retention, and to be informed of that right.
5. Informed without delay as to which offence he/she committed
6. Right to be presumed innocent until proven guilty
7. Right to not be denied bail with just cause
   + everybody has the right not to be subjected to torture

Question 3

Notwithstanding Clause

Answer 3

Section 33 can be involved to relax some of the provisions of section 2 (fundamental freedom) and section 7-15 (rights)

Question 4

What constitutes as fundamental justice?

Answer 4

• legal principle
• must be a general societal consensus that it operates fairly
• it’s a meaningful and workable standard (R V malmo-levine, 2003 SCC 74) and it must be sufficiently precise

Question 5

What are substantive limits?

Answer 5

What the parliament can’t do (section 2: fundamental freedoms) and right to life, liberty and security unless it’s in violation of the principles of fundamental justice (section 7)

Question 6

Examples of Fundamental Justice

Answer 6

1. Solicitor Client Privilege
2. Right to silence
3. Right to make full answer and defence and disclosure of all relevant evidence whether it is inculpatory or exculpatory

Question 7

Inculpatory

Answer 7

prove guilty

Question 8

Exculpatory

Answer 8

prove innocence

Question 9

Salutary

Answer 9

positive effects

Question 10

Deleterious

Answer 10

harmful/bad effects

Question 11

Reverse Onus

Answer 11

burden of proof lies on the accused to find evidence to disprove

Question 12

What violates principles of fundamental justice?

Answer 12

1. If there isn’t a high level of fault of moral blameworthiness, the offence will violate it
2. Laws that are vague, arbitrar, overboard and grossly disproportionate violates it too

Question 13

Vagueness

Answer 13

1. Do not provide sufficient notice to what constitutes crime
2. Stigma level and fault level has to be equal
3. They must read-in on certain conditions

Question 14

Arbitrary

Answer 14

No direct connection between purpose of the law and its impugned effect on the individual

+ Morgentaler and PHS cases: effect of the law contravenes its purpose

+ Chaoulli v Quebec: Sometimes the effect of the law is simply not connected to its objectives

Question 15

Overbreadth

Answer 15

Overbreadth refers to an overly broad definition, and thus it bears no relationship with its purpose

+ R v Heywood: sexual predators and parks

Question 16

Grossly Disproportionate

Answer 16

Effects are out of sync with its objective

The key to it is balance

Question 17

The Oakes Test

Answer 17

1. Pressing and substantial objective
2. Rational Connection between the objective and the provision
3. Minimal impairment to the rights
4. Overall proportionality between the saultary and deleterious effects

Question 18

R V Oakes

Answer 18

An examination on the violation of section 11 (presumed innocence, which was YES), and on the possibility of a reasonable limit (are objectives proportionate? IT WASN’T SAVED BY SECTION 1 and IS UNCONSTITUTIONAL)

Question 19

R V Butler

Answer 19

An examination on freedom of expression and porn. 1. Undue exploitation definition is on Canadian’s tolerance of other Canadian’s standards

2. it violated freedom of expression; depiction conveys meaning and not in the form of violence + provision criminalises expressive activities
3. Provision was saved under section 1 because it passed the Oakes test

Question 20

What is the relationship between section 7 and section 1?

Answer 20

Section 7 can’t be saved by section 1 because cases that aren’t in accordance to the PFJ have limits

Question 21

Difference between section 7 and 1?

Answer 21

Section 7 focuses on the PURPOSE OF THE LAW and its effect QUALITATIVELY (claimant must show that deprivation is not in accordance to PFJ)

Section 1 focuses on EFFICACY OF THE LAW and the EFFECT ON SOCIETY BOTH QUALITATIVELY AND QUANTITATIVELY (state must show evidence of violation is justified)