Charter Limits Flashcards
What is in the charter?
Limitation to the authority of states
What are the seven rights listed in section 8-14 of the charter? (procedural rights)
- Everyone has the right ot be secure against unreasonable search or seizure
- Cannot resort to unreasonable search or procedure
- Everyone has the right not to be arbitrarily detained or imprisoned
- Everyone has the right on arrest to be informed promptly of the reason for detention and retention, and to be informed of that right.
- Informed without delay as to which offence he/she committed
- Right to be presumed innocent until proven guilty
- Right to not be denied bail with just cause
+ everybody has the right not to be subjected to torture
Notwithstanding Clause
Section 33 can be involved to relax some of the provisions of section 2 (fundamental freedom) and section 7-15 (rights)
What constitutes as fundamental justice?
- 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
What are substantive limits?
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)
Examples of Fundamental Justice
- Solicitor Client Privilege
- Right to silence
- Right to make full answer and defence and disclosure of all relevant evidence whether it is inculpatory or exculpatory
Inculpatory
prove guilty
Exculpatory
prove innocence
Salutary
positive effects
Deleterious
harmful/bad effects
Reverse Onus
burden of proof lies on the accused to find evidence to disprove
What violates principles of fundamental justice?
- If there isn’t a high level of fault of moral blameworthiness, the offence will violate it
- Laws that are vague, arbitrar, overboard and grossly disproportionate violates it too
Vagueness
- Do not provide sufficient notice to what constitutes crime
- Stigma level and fault level has to be equal
- They must read-in on certain conditions
Arbitrary
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
Overbreadth
Overbreadth refers to an overly broad definition, and thus it bears no relationship with its purpose
+ R v Heywood: sexual predators and parks
Grossly Disproportionate
Effects are out of sync with its objective
The key to it is balance
The Oakes Test
- Pressing and substantial objective
- Rational Connection between the objective and the provision
- Minimal impairment to the rights
- Overall proportionality between the saultary and deleterious effects
R V Oakes
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)
R V Butler
An examination on freedom of expression and porn. 1. Undue exploitation definition is on Canadian’s tolerance of other Canadian’s standards
- it violated freedom of expression; depiction conveys meaning and not in the form of violence + provision criminalises expressive activities
- Provision was saved under section 1 because it passed the Oakes test
What is the relationship between section 7 and section 1?
Section 7 can’t be saved by section 1 because cases that aren’t in accordance to the PFJ have limits
Difference between section 7 and 1?
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)
