PO 209 lesson 1
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School
Wilfrid Laurier University *
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Course
209
Subject
Law
Date
Jan 9, 2024
Type
docx
Pages
7
Uploaded by CoachUniverseKomodoDragon32
PO 209 lesson #1
Each time you begin to read a case you should be asking yourself:
1.
What court is making the decision?
2.
When was the case decided?
3.
Which Judge wrote the decision?
4.
Is there more than one Judge involved in the decision? 5.
Are all the Judges in agreement? 6.
Is there a majority decision and a dissenting decision?
7.
Who are the plaintiff and defendant? Who are the appellant and respondent if the case is an appeal?
8.
Are there other parties involved in the case?
9.
What are the important facts of the case?
10.
What is the procedural history of the case in terms of legal decisions that precede the case?
11.
What are the legal issues that the court is being asked to decide?
12.
What is the holding of the court on each legal issue? A holding is another word for a legal determination on an issue. You will often see the word “held” signalling a judicial determination.
13.
What analysis did the court use in making its determination(s)?
14.
Did the court apply existing precedent in deciding the case or did the court establish a new legal principle?
Public Law and Private Law
Laws can be divided into public and private law. Public law
covers what affects society as a whole. It includes criminal, constitutional and administrative law. Constitutional law deals with interpreting and applying the Constitution of Canada by the Courts. Administrative law deals with the actions and operations of the Canadian government and governmental agencies.
Private law
covers relationships between individuals. It sets rules for contracts, property ownership, the rights and obligations of family members, damage to someone or to their property, etc. A civil case is an action between private parties, mainly to settle private disputes.
The Canadian Constitution
The Constitution is the supreme law of Canada. It defines the powers of the different levels and branches of government.
The power to make laws is divided between the Parliament of Canada (also referred to as the federal government) and the provinces and territories.
The federal government mostly deals with issues that affect all of Canada, such as trade between provinces, national defence, criminal law, immigration, divorce, and money. It is also responsible for Yukon, Northwest Territories and Nunavut. Laws made by Parliament apply to all
of Canada.
The provinces can make laws about issues of a local or private nature within the provinces such as education, property, and the private rights of persons. For example, provincial laws indicate what rights we have when we buy or lease property. Provinces also make laws about the administration of justice, which means they make laws about how the courts and police keep the peace within a province. They also make laws about hospitals such as how health care is provided, and municipalities (cities) such as the creation of offices to ensure things run smoothly in the city. Territories elect councils with powers similar to those of the provinces and govern themselves.
Local governments are created under provincial laws and can make laws regulating local matters
such as zoning, smoking, pesticide use, parking, business regulations, and construction permits. These types of laws are called bylaws.
Aboriginal peoples in Canada have different types of government. Examples include Indian bands with powers over reserve lands, and self-governments with powers from special agreements negotiated with the federal and provincial or territorial governments.
Rights and Freedoms in Canada
Human rights in Canada are protected by the Constitution through the Canadian Charter of Rights and Freedoms
. As part of the supreme law of Canada, the Charter
takes priority over all other legislation. It applies to the provincial legislatures and Parliament. This means that the Charter
is supposed to protect individuals rights and freedoms from being violated by government action or laws.
If you believe your Charter
rights have been violated, you can seek help from the courts who may declare the law invalid as far as it conflicts with the Charter
. Courts can also make other orders to help you in other ways.
However, the Charter also recognizes that rights and freedoms have limits. For example, we cannot yell “bomb” in an airplane for no reason or spread hate speech against someone. Parliament or a provincial legislature can limit our rights if they can show the limit is reasonable to ensure people’s safety and the proper functioning of society.
Rights Protected under the Charter
The Charter protects your fundamental freedoms:
Fundamental freedoms: Everyone in Canada has a right to practice any religion or no religion at all, have freedom of speech, are free to gather peacefully into groups and associate with others, to print and broadcast news and other information. Each person’s rights are present as long as the rights of others are not infringed.
Democratic rights: Canadian citizens have a right to vote in elections for Members of Parliament and representatives in provincial and territorial legislatures. The government must call an election at least once every five years, except during national emergencies. Parliament and legislatures must also sit at least once a year.
Mobility rights:
Canadian citizens have the right to enter, stay in, and leave the country, as well as work anywhere in Canada. Some restrictions may apply to immigrants to Canada depending on your immigration status. The provinces and territories cannot discriminate against Canadian newcomers from other provinces.
Legal rights:
Everyone in Canada has the right to fairness during legal proceedings, especially in criminal cases. This includes:
o
The right to challenge being held by the police (detention) and to be found innocent until proven guilty;
o
The right to be free and safe from harm, and to be free from unreasonable searches and seizures, excessive police force, and arrest without reasonable suspicion of having committed a crime;
o
The right to know the reasons for being arrested or held by the police, to consult a lawyer without delay, to be informed of this right, and to have the court inform quickly if the detention is lawful; and
o
If charged with an offence, the right:
To be told quickly of the offence;
To have a trial within a reasonable time;
Not to be forced to testify at our own trial;
To be found innocent until proven guilty beyond a reasonable doubt in a fair and public hearing by an independent tribunal that is not biased;
Not to be denied reasonable bail without reason;
Not to be subjected to any cruel or unusual punishment;
To be tried by a jury for serious charges; and
Not to be tried or punished twice for the same offence.
o
During trial, both witnesses and the accused have the right to an interpreter if they do not understand the language or are hearing impaired. Witnesses have the right not to have any incriminating evidence used against them in later proceedings.
Equality rights: Every individual is equal before the law and has equal protection and benefit under the law, regardless of race, place of birth or origin, colour, religion, sex, age, or mental or physical ability.
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Language rights: English and French are Canada’s official languages. They both have equal status, rights and privileges. Everyone has the right to use English or French in Parliament or court proceedings, and to receive services in English or French from the central offices of federal institutions and other federal offices where there is a significant
demand in either language. In New Brunswick, Quebec, and Manitoba these conditions also apply at the provincial level.
Minority-language educational rights: In predominantly English-speaking provinces and all the territories, people have a right to send their children to French-language schools. Likewise, in Quebec, people have a right to send their children to English-language schools. These rights apply where there are enough children to allow instruction in these
languages.
Aboriginal rights: The Charter
and other sections of the Constitution specifically protect the rights of Aboriginal peoples. These rights recognize and protect the Aboriginal and treaty rights of Aboriginal peoples, and are supposed to help Aboriginal peoples preserve their cultures, identities, customs, traditions and languages. The Charter
cannot
be used to take away rights of Aboriginal peoples.
Other Rights
The Charter
does not list all the rights of Canadians; it only guarantees basic minimum rights. Canadians have other rights that come from federal, provincial, territorial, international and common law. Parliament or a provincial or territorial legislature can also always add to the rights of Canadians.
A Supreme Court of Canada decision is considered binding authority in that all courts in Canada would be obligated in our common law system to follow and apply the legal precedent set by the Supreme Court of Canada. We will discuss this principle in greater detail as we move forward.
In Ontario the hierarchy of courts is as follows, from highest to lowest:
1.
Supreme Court of Canada (SCC)
2.
Ontario Court of Appeal (ONCA)
3.
Divisional Court
4.
Ontario Superior Court (ONSC)
5.
Ontario Court of Justice (OCJ)
Another central aspect of our Canadian legal system that you need to be aware of is the Canadian Charter of Rights and Freedoms. It is essential to understand how the Charter interplays with Canadian legislation and jurisprudence. The major assignment in this course will be to write about a Canadian judicial decision that you believe has been wrongly decided. As the Charter is the supreme law of Canada, many fertile areas for appeal consider Charter issues.
1.
Does the Canadian Charter of Rights and Freedoms apply to disputes between private individuals? If it does not, why not?
-
the Canadian Charter of Rights and Freedoms primarily applies to disputes involving government actions, and it does not directly regulate the conduct of private individuals. Other laws and regulations exist to protect individuals' rights in private interactions.
-
The reason for this limitation is that the Charter is part of Canada's Constitution, which
governs the relationship between individuals and the state. It is a set of principles and rules that guide how the government must treat its citizens. It does not directly regulate or govern the actions of private individuals or entities in their private interactions.
2.
Familiarize yourself with at least three Charter-protected rights. Please make note of three rights that may resonate with you as being important in your study notes.
-
Freedom of Expression (Section 2(b)):
This right protects Canadians' freedom of thought, belief, opinion, and expression, including freedom of the press and other media of communication. It is a cornerstone of democracy, allowing individuals to express their ideas, criticize the government, and engage in open public discourse. Freedom of expression is essential for a vibrant and informed society.
-Right to Equality (Section 15(1)):
This section guarantees that every individual is equal before and under the law without discrimination based on various grounds, including race, national or ethnic origin, sex, and religion. It ensures that all Canadians are entitled to equal protection and benefit of the law, promoting a more inclusive and just society.
-Right to Life, Liberty, and Security of the Person (Section 7):
This section safeguards an individual's right to life, liberty, and security of the person. It ensures that government actions that could deprive someone of their life or liberty must conform to the principles of fundamental justice. This right provides a fundamental protection against arbitrary detention and punishment.
3.
Familiarize yourself with the section 1 test in the Charter.
Rights and Freedoms Guarantee:
Section 1 begins by affirming that the Charter guarantees the rights and freedoms outlined in it. These rights are fundamental and protected by the Constitution.
Subject to Limits:
However, these rights and freedoms are not absolute. They are subject to limitations.
Reasonable Limits:
The limitations imposed on Charter rights and freedoms must be "reasonable." This means that they should be justifiable in a democratic society and not overly broad or arbitrary.
Prescribed by Law:
Any limits on Charter rights and freedoms must be established
by a valid law. This means that a law passed by a legislative body (e.g., Parliament or a provincial legislature) must exist to justify the limitation.
Demonstrably Justified:
The most critical element of Section 1 is the "demonstrably justified in a free and democratic society" clause. To limit a Charter
right, the government must demonstrate that the limitation serves a pressing and substantial objective and that it does so in a way that is proportionate and minimally impairs the right. This requires a careful balancing of individual rights against societal interests.
4.
Familiarize yourself with the section 24 test for the exclusion of evidence.
1.
Threshold Requirement:
The first step of the Section 24(2) test is to establish a threshold requirement. The court must determine whether there has been a violation of
the accused person's Charter rights. If there has been no Charter violation, there is no need to proceed with the test, and the evidence is generally admissible.
2.
Analysis of Factors:
If a Charter violation is established, the court will then consider a series of factors to determine whether the evidence should be excluded. These factors include:
a. The seriousness of the Charter-infringing conduct:
The court assesses the degree of misconduct by law enforcement or other state actors. More serious violations are more likely to lead to exclusion.
b. Impact on the Charter-protected interests of the accused:
The court considers how the violation affected the accused's rights and interests. For example, did it undermine the right to a fair trial or the right to be free from unreasonable search and seizure?
c. Society's interest in the adjudication of the case on its merits:
The court weighs the importance of having all relevant evidence presented at trial in order to determine the truth. This includes considering the seriousness of the charges.
d. Society's interest in the enforcement of Charter rights:
This factor involves the court's assessment of whether excluding the evidence would promote respect for Charter rights and deter future Charter violations by law enforcement.
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3.
Balancing Test:
After considering these factors, the court engages in a balancing exercise. It weighs the impact of admitting the evidence on the accused's Charter-
protected interests against the societal interest in prosecuting the case fairly and effectively.
4.
Overall Justice:
The court's ultimate goal is to achieve overall justice. If, after the balancing exercise, the court determines that admitting the evidence would bring the administration of justice into disrepute, it will exclude the evidence. If, on the other hand, the court believes that admitting the evidence is necessary to maintain the integrity of the justice system, it may allow it.