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1990 SCC
- defines reasonable probable grounds for arrest (for s.9)
- subjective and objective component. |
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Arbitrary detention. Defines detention. (s.9)
Not just physical, also psychological
Look at what objective person would perceive, characteristics of the detained, conduct of police. |
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| 1987, first case to define 24(2) |
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| 1997, built on Collins to define 24(2) |
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Grant test, overruled Collin and Stillman
2009
Grant test: look at three things
1. Seriousness of the Charter-infringing state conduct
2. impact on the accused's interests
3. society's interests in an adjudication of a case on its merits. |
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Definition
First real due process victory
over 80, hit tree. Breath samples, no counsel.
Application under 24(2) - evidence excluded
appealed to SCC, SCC refused to limit right to counsel to those arrested.
Might be minor but still important.
Veneer of fairness. |
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Due process revolution retreat
SCC upheld RIDE checkpoints
application under 24(2), failed.
Violates 10(b), saved under s.1 - deterrent to drinking/driving |
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Murder suspect, confession without counsel - inebriated.
Court said person has to understand rights in order to waive them.
Tons of backlash
SCC defining holding off requirement |
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| Case which stood for proposition that police have obligation to hold off until suspect has a reasonable opportunity to gain counsel |
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Legal aid
"Free legal advise" "have something to hide?"
right to counsel includes legal aid and ability to talk to someone at any time.
police complied, provinces set up 1800 numbers |
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first of iron triangle
2000 - ruled that confession will not be admissible if made under circumstances which raise a reasonable doubt as to its voluntariness - high barier to exclusion of statements |
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second of iron triangle
2007 - arrested, right to silence 18 times, inculpatory statements
voluntary statements, weren't excluded |
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third of iron triangle
2010 - no right to counsel in interrogation room
right to counsel=one phone call, unless jeopardy changes |
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| Investigative stops could be misused. Can cloak random stops of HTA investigative stops that you're allowed to do on a whim. |
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| OCA - crackhouse, pulled out, used HTA, OCA said not reaosnable suspicion, misusing HTA power. |
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| Upheld preventative detention on basis that bail system does not function properly if people commit crime while on release. |
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| expanded tertiary grounds for denying bail. |
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DNA sample taken, crown said can't consent without full knowledge
parliament amends CC to say you don't need consent, just need warrant
shows retreat of DP |
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1995, defines what is required for stay of proceedings
"Extreme" "most clear of cases" |
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Term
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Definition
1990 decision.
1983-1986, orders stay of proceedings because too long delay.
background - judges unhappy
OCA reverses, SCC reverses again.
Should have opportunity to clear name/reputation at earliest possible time
said 24(1) is close to quasi-absolute exclusionary rule like therens
trials should start 6-8 months.
looked at data, said shortcoming was from system.
gov fall out |
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Term
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Definition
Appeal of drunk driving case. Stayed for 13 month.
SCC goes, crap we've made a mistake, lets clarify
says 6-8 months shouldn't be mechanical.
13 months wasn't unreasonble
1992, says 4 specific factors:
1. Length of delay
2. any waiver of time
3. reason for delay (inherent, crown, accused, limitations, other)
4. prejudice to the accused |
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Term
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Definition
| 2009, can infer prejudice based on length of stay for 24(1) applications |
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Term
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Retreat for 11(b) rights.
Stay of proceeding application, justice says no.
1. Expands inherent
2. questions Godin - says only for run-of-mill
3. makes some institutional shortcomings into inherent
4. makes harder to prove inferred prejudice |
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Definition
Lawyer, embezzlement
court - general principle that crown was required to disclose all relevant, non-privileged info at an early stage.
enforced idea of crown role
said disclosure would help backlog - ironic. |
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Definition
1982, injunction, granted. Appealed to SCC, against freedom of speech.
Said trial judge could grant standing to a third party. |
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| Families of victims granted intravenor status. |
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Reverse onus against presumption of innocence.
other reverse onuses (guns, in care and control) ok. |
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Cautious and unlucky robber
Culpable homocide under party provision s.21
Charter challenge - murder needs subjective foresight, and he actually took steps to avoid murder
SCC struck down his murder conviction. Highest penalty, highest mens rea.
court also upheld normal 1st degree murder sanction in general - due process and victims rights came together |
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| Once you pass a minimum threshold of harm, the extent of the harm should determine society's response |
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| BC Motor Vehicles Reference |
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Definition
driving with suspended license, absolute liability
jail time. Charter application of s.7 (jail with absolute).
Court struck down absolute liability, made strict |
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Definition
Most successful prostitution DP victory, pre-Charter.
1978, quashed conviction of a woman who explained to undercover that she was a prostitute.
Said assembly line=bad. |
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Definition
Upheld the three laws made under the charter.
Challenge had said it violated freedom of association.
shows court almost moving backwards |
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SCC recently revisited. SCC struck down all three laws (prostitution as violating charter rights).
Why? Prostitution wasn't illegal. So putting them at higher risk through laws was state-imposed trauma.
Gov responds with bill c-36 against johns. Same stuff. |
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Term
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Tried to argue on harm principle for decriminalization of marijuana.
SCC said no. |
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Due process victory
right after charter (few months)
charged - conspiracy for facilitating abortion without committee approval.
SCC struck down sanction - delay/uncertainty of committee approval=state imposed trauma
attempts to reintroduce criminal sanction.
court sanction also used for opposite side. |
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1993
s.241 aiding suicide. Wanted exemption.
scc - majority held it did violate s.7 but justified under s1 because human life shouldn't be depreciated. Slippery slope. |
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Assisted suicide, 2015
found 241 unjustifiably violated s.7
struck down 241 |
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Definition
SCC upheld CC provision of willful hatred against an identifiable group as consittutional under freedom of expression.
high school teacher.
10 year prosecution.
brought charter application for freedom of speech
fined.
Risk discourse mixed with rights discourse. |
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Definition
SCC - AG refused to prosecute holocaust denial.
willfully publishing news that is false.
first trial, convicted. Second, convicted. SCC - said law was unjustifiable based on freedom of expression. |
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Obscenity/porn.
SCC - creates three categories of porn. 1. explicit with violence. 2. explicit without violence but degrading/dehumanizing. 3. explicit sex without violence, degredation, dehumanization.
aftermath - parliament new laws. |
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