Public Law II February 3/06

1. Letter to editor assignments to be handed back after class today What will be on the mid-term exam? Objective questions only (eg. Matching, fill-in-the-blanks) Know an overview of human rights in Canada, and events leading up to the Charter Know the main human rights cases prior to the Charter. Know the Charter Know the Oakes test for Section 1 For the cases we’ve studied: What is the impugned legislation? Was it upheld or struck down? What does the case teach us about how the Court interprets the Charter? Public Law IIFebruary 3/06

2. S.7: right to life, liberty, & security of person unless deprived thereof through fundamental justice s.8: Unreasonable search and seizure is forbidden. 9. Arbitrary (illegal) detention or imprisonment is forbidden. 10. Everyone who is arrested or detained has the right: a) to be told why immediately b) to retain a lawyer and be told of this right c) habeas corpus (to be freed if illegally detained) 11. Persons charged with offences have the right a) to be informed reasonably quickly of the charge b) to a trial within a reasonable time c) not to be a witness against oneself d) to be presumed innocent until proven guilty before an independent and impartial judge Legal Rights

3. e) to bail unless unreasonable f) to trial by jury if liable to 5 yrs in jail 12. No one can be subjected to cruel or unusual treatment or punishment. 13. Evidence given by a witness in court can't be used against that witness later on. 14. Everyone has a right to an interpreter. Today: Singh: S. 7, & and fundamental justice in Canadian Bill of Rights Therens: right to counsel: S. 10(b) (in text) B.C. Motor Vehicle Act Case: S. 7: substantive or procedural? Valente: S. 11(d): right to ind & impartial tribunal (in text) Askov, Rodriguez, Mills, and Edelson article Can Fdn for Children case Legal Rights (2)

4. Refugee determination process pre-Singh: those not approved abroad apply at airport; examined by an officer; transcript sent to Ref St Adv Comm. Rec to Min. Ap allowed to Ap Bd; can det with minister’s evidence and transcript, & no oral hearing Both Charter & Bill of Rights issues court requested additional submissions on Bill. Impugned: ref det process under Imm Act Wilson: decided under s. 7 of Charter. “Everyone” covered. Is it life, liberty or sec of person at stake here? Sec of person. Is this violation in accord with fundamental justice? No. Fundamental justice nat justice prin of “hear both sides.” App has a rt to know case against self, and reply to it. Therefore, oral hearing required. S. 1: crown presented no arguments. Singh (1985)

5. Beetz: Bill of Rights still there right to “a fair hearing acc to fundamental justice to det rights and obligations” violated Beetz strikes down part of Immigration Act; other judges concur decision resurrects the Bill of Rights. Beetz also refers to statutory bills of rights as “constitutional or quasi-constitutional.” After Singh: Fed gov’t totally unprepared backlog in ref cases: 3 yrs some took advantage of backlog; some bona fide refugees stopped at border (Charter does not apply outside) May 1987: C-55, “safe 3rd cty” C-84: apprehend ships at sea; penalty for assisting ref applicants who had not applied abroad tremendous opposition to bills CRDD created, but members mostly patronage appointments then Singh (2)

6. 1982: Therens collided with tree in Moose Jaw; taken to police station for breathalizer test. Not told of right to counsel. If he’d refused test, would have been charged with refusing: same penalty Police didn’t inform because operating on Bill of Rts precedents: requesting a breath’zer test not “detention.” Le Dain: B of Rts precents don’t necessary apply to Ch Is preventing contact with counsel a “reasonable limit?” No: not “prescribed bylaw,” and there’s time in 2 hrs. Would admitting the evidence bring admin of justice into disrepute? (s. 24 - 2)? Majority (Estey): yes Dissent on this issue: Le Dain says admit evid here; exclude in future. McIntyre dissented too: not to admit brings admin of justice into disrepute. Aftermath: 1000s of cases dropped Therens (1985)

7. 1982: BC gov’t created an “absolute liability” offence: if you drive with license suspended, automatic jail term. Mens rea not applicable. Issue: does an ab liab offence violate “fund justice” in s. 7 of Charter? BC gov’t sent ref question to BC CA in 1982; app’d to SCC Should “fundamental justice” be interpreted in a procedural or substantive way? Procedural: life, lib and sec of person can always be limited, if correct procedures followed Substantive: in some cases, even correct procedures cannot justify limiting life, lib or sec of person debates in Parliament: framers wanted S. 7 interpreted in a procedural way; fear of repeat of “Lochner era” in U.S., where U.S. js interpreted “due process” in a substantive way, and stopped social welfare reforms B.C. Motor Veh Act Case (1985)

8. Lamer: legislative history should be admitted but given “minimal weight,” as no proof that a maj of MPs and Senators agree with the views of some Lamer: combination of an absolute liability offence, and a jail term, results in a violation of fundamental justice. S. 1: it’s possible that the crown could prove a reasonable limit, but crown did not present any evidence on this issue. Therefore, a “reasonable limit” has not been established. B.C. Motor Veh Act Case (2)

9. Valente (1985) • Shortly after Charter came into effect, Valente went to trial, charged with dangerous driving causing death (criminal code offence). He claimed that the Provincial Court judge he appeared before was not an “independent” tribunal under Charter S. 11(d). The SCC declared that Prov. Ct. judges in Ontario are independent, even though the guarantees of their independence are different from those for Superior Court judges. • The decision established that there are 3 “essential conditions” for jud ind: • security of tenure: there must be impartial inquiry before a j can be removed • financial security: legislated right to a salary • institutional independence: judges must control those aspects of case flow directly affecting adjudication

10. Issue: 11(b) rt. to trial within a reasonable time In this decision, court developed the “Askov” test for unreasonable delay. Consider length of delay explanation of delay was there a clear waiver of right to trial within reasonable time? has the delay prejudiced accused (hurt the case of the accused)? In this case: length of delay is unreasonable the cases of Askov et al have been prejudiced explanation: Delays in Peel are shocking. Relies on Carl Baar’s evidence no clear waiver of right Baar’s 1993 article commenting on Askov: judges misinterpreted the stats (Can Bar Rev 1993) Askov (1983-1990)

11. S. 241(b) of criminal code: prohibits assisted suicide. Rodriguez:dying of Lugerrig’s disease. Wanted declaration that 241(b) violates her s. 7 right to security of person, & s. 12 rights (cruel treatment) & s. 15 rights (equality), because it prevents her from arranging an assisted suicide once life becomes unbearable, and she will be physically unable to end her life. Majority (5) Sopinka no infringement of any rights. Even if s. 15 violated, s. 1 saves. Minority: (3 dec’s) McLachlin & L’Heureux-Dubé: s. 241(b) violates fundamental justice (s. 7), & can’t be saved by s. 1. Lamer: s. 241(b) violates s. 15, & can’t be saved by s.1. Rodriguez (1993)

12. Issue: Privacy vs. right to fair trial O’Connor decision (1995): Ct requires 2-step process. 1. Acc’d to show pte rec’s likely to be of value in defence. 2. Judge will release records if satisfied that: Private record is necessary for full defence Extent of reasonable expectation of privacy allows Request for record not based on bias Victim’s dignity or sec of person not unreasonably affected Bill C-46 (1997): did new legislation comply with O’Connor? C-46: requires application in writing by accused for pte records judge holds in camera hearing re whether to review if necessary, judge reviews the private record judge decides whether record or parts should be provided to accused judge can order restrictions on media publication Court: advocates dialogue with legislature C-46 is acceptable balance between privacy and rt to fair trial Mills (1999)

13. Impugned: S. 43 of Crim Code that justifies “reasonable use of force” by parents and teachers against children. Foundation sought declaration that S. 43 violates ss. 2, 12 & 15 of Charter. SCC: 6-3 charter violations can be upheld under s.1 (Oakes test passed) McLaughlin +5: S. 43 adversely affects security of the person, but fundamental justice is protected. Force is limited by what is “reasonable under the circumstances.” What’s “reasonable” is clear enough to pass muster. What’s reasonable is determined by international treaty obligations, circumstances, expert evidence, social consensus, and case law. spanking is not “cruel and unusual” (s. 12) No violation of S. 15 (equality). There’s no discrimination. A child’s dignity not offended. Children need guidance and discipline. Canadian Foundation for Children, Youth and the Law v. Canada (2004)

14. Spanking case, cont’d • Dissenters •         –    Binnie        •    S. 43 violates s. 15 (equality).  Children are marginalized, and their dignity is offended.  However, S. 43 passes the Oakes test for parents.  The objective of preventing criminalization of corporal punishment is important.  Rights are minimally impaired because the law permits only minimal force.  Overall, the good outweighs the harm.  Not so for application to teachers:  expectations are different.  None of the Oakes test is passed for teachers.        –    Arbour:        •    S. 43 violates S. 7 of Charter (security of person).  Fundamental justice is violated because the section is so vague.  (What is reasonable force?)  Therefore, the limit is not “prescribed by law,” as required by S. 1 of the Charter.        –    Deschamps        •    There’s a violation of S. 15 based on age.  Children are vulnerable.  The objective of giving parents & teachers reasonable latitude in nurturing children is important.  There’s a rational connection between this objective and S. 43.  However, children’s rights are not limited as little as necessary, and overall, the current wording of S. 43 may do more harm than good.  Therefore, the Oakes test isn’t passed for Deschamps.