Fundamental Justice
Last updated : 22/01/01
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Fundamental Justice
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FUNDAMENTAL JUSTICE AND THE CHARTER* Fall
1999
* This syllabus is a work in progress, so please forgive irregularities in citation style and typographical or other mistakes which crop up here and there. What I would like to do is refine the seminar-by-seminar syllabus, as needed, through the home page which, I'm hoping, will be set up in the next week or so. Meantime, this syllabus, while not comprehensive, provides a decent framework for the seminar. I would like to thank Angela Green-Ingham and Aleksandra Nesic for helping me to put these materials together. Professor Jamie Cameron
SEMINAR DESCRIPTION Course #:
3060.03 The object of this seminar is to take a comprehensive and critical look at the jurisprudence under S. 7 of the Charter. Section 7's concern with "fundamental justice", and whether there has been manifest unfairness in the infringements of life, liberty or security interests, has made it conceptually one of the Charter's most elusive guarantees. The project for this seminar is to synthesize the jurisprudence, in an effort to determine whether there is an integral whole, any fundamental assumptions that organize or join the caselaw on adverse topics of substantive and procedural justice. Topics to be pursued in this inquiry include administrative fairness [i.e. natural justice]; "substantive justice" [i.e., principles of criminal responsibility; the autonomy cases]; and fundamental justice in the criminal justice system [i.e., fair trial; full answer and defence; right to remain silent; extradition etc.] Though the focus will be on s.7, aspects of fairness which arise under ss. 8-14 may also be considered. Evaluation: One research paper (75%) and one class presentation (25%). Please note that the 25% allocated to the in-class presentation will also take into account attendance and participation. Seminar not offered in 2000-2001.
SEMINAR SCHEDULE Materials: Comprehensive syllabus ------------------------------------------------------------------------------------------------------------------------------------------- SUMMARY
PART
I PRINCIPLES OF INTERPRETATION
------------------------------------------------------------------------------------------------------------------------------------------- PART I: PRINCIPLES OF INTERPRETATION CLASS 1
August
30 Labour Day September 6 (no class)
Yom Kippur September 20 (no class)
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CLASS
5 October
4
Duress R. v. Langlois
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CLASS
9 November 8
Jury selection
Discipline
proceedings
Right to an appeal
------------------------------------------------------------------------------------------------------------------------------------------- Section 7 is one of the Charter's more intriguing provisions, and the purpose of this seminar is to bring its diverse features into focus. Both in concept and as a matter of text, the guarantee is unbounded. Even after having been limited in certain ways by judicial interpretation, its contours remain somewhat unbounded. As a result, one objective of the seminar is to gain some appreciation of the diversity and complexity of the jurisprudence. In addition, we will try to figure out what underlying assumptions and principles hold this case law together. Perhaps there are none. Perhaps s.7 is no more and no less than an ad hoc, grab bag collection of perceptions of what fundamental justice is in particular circumstances. Then again, maybe the jurisprudence does explain what fundamental justice is. As always, we are also interested in what it can tell us about judicial review, and the way the Supreme Court of Canada understands its mission under the Charter. Take a quick look at s.7. What do the words of this provision promise, and are there two rights or one? There is certainly a case to be made that the guarantee creates two independent rights. Not so said the Supreme Court of Canada. As for the first part of the section, what, if anything, is excluded from the assertion that everyone has the right to "life, liberty and security of the person"? Even on a narrowing interpretation, the language is inclusive of all kinds of entitlements. Do you think that some kinds of interests should be excluded from the guarantee and if so, on what grounds? On the other hand, limiting the scope of s.7 may be objectionable because the resulting interpretation would necessarily be selective and subjective. Opening up the first branch of the guarantee might not accomplish much, other than to shift the question of limits either onto the question of fundamental justice or into section 1. Would either of those options be a bad idea? Now consider "principles of fundamental justice". It's clearly an important concept, but what on earth does it mean? How would anyone, including the justices of the Supreme Court of Canada, have any way of knowing? Is fundamental justice aimed at fairness in the administration of the criminal law? On second thought, why should s.7 be granted any role in the criminal justice system, given the specification of additional guarantees (ss.8-14), which are particular to the criminal law? Should s.7 be confined in scope to questions of natural justice [the right to notice, a hearing, and other elements of "fairness" in the administrative setting]? Should there be definitional limits and if so, pursuant to what criteria? And another thing... What is the relationship between s.7 and s.1? It's hard to imagine any breach of fundamental justice being saved as a reasonable limit under s.1. At the same time, there is nothing in the Charter to suggest that breaches of qualified rights [i.e., only principles of findamental justice are protected by s.7] cannot be saved under s.1. The seminar sessions themselves are structured in a fairly straightforward way. Starting with the "first trilogy" of landmark decisions, the initial three sessions look generally at "principles of interpretation." The second and third sessions are quite different: while the third class presents a potpurri of decisions to consider what kinds of entitlements might be included in the first branch of s.7, the fourth analyzes the Supreme Court of Canada's approach to s.7 in two pivotal cases, and does so with specific reference to principles of fundamental The second and third parts of the seminar examine the substantive, and then the procedural, content of s.7. These sessions are meant to be illustrative, rather than exhaustive or comprehensive, of the kinds of issues that have some up under s.7. Although the topics and cases for study that have been chosen are not exclusive to the criminal law, the interaction of s.7 and the criminal justice system is a key theme throughout the seminar. And that is because, whatever may have been intended at the outset, the Supreme Court of Canada has chosen to place that interpretation on s.7. The syllabus for each session will provide a brief textual introduction, which will be followed by a list of cases and selected readings. The idea of not assigning a casebook is that we are all self-starters. I will almost always indicate what cases or issues we will focus on, and will refine and remind you what you should be reading on a week to week basis. Even though some of the cases are long, you should be able to focus on the issue or issues we will be most keen on discussing in class. I expect good attendance and participation, not for my sake, but because that is how you learn C through your own curiosity and interest in breaking through a convoluted area of Charter jurisprudence to discover what is there, what it amounts to at the end of the day. The class presentation is the final aspect of the 25% evaluation factor for participation. This is a limited adventure, restricted to one 10 minute, spoken piece C or oral editorial C which relates to one of the issues for discussion in the materials. This exercise will give you the opportunity to develop a particular skill, and the format tends to engage the group generally. I'll help with topics. One model that tends to work well is the "case comment", especially when two members of the seminar group present a different point of view. Nor am I opposed to a higher degree of co-ordination/collaboration. If you want to do a presentation in combination with somebody else in the seminar, that is fine; you just have to clear the topic with me and explain how you plan to proceed. I will also try to help with paper topics. Unless you have a broader background in the Charter, the criminal law, or s.7 in particular, I would steer you away from abstract, solve the world topics and recommend that you choose one that is more discrete and manageable. Once again, the case comment is reliable, and a variation on that model is a comparison of cases. Papers that analyze the constitutionality of particular legislative provisions or particular issues [the therapeutic use of marijuana] also tend to work well. You can comment on abstract concepts or principles of interpretation, or questions of structural analysis [i.e., the relationship between s.7 and other Charter guarantees, the relationship between ss.7 and 1]. If you think that economic interests should be protected by s.7, fine, write a paper. If you have views about the immigration cases, that's fine too. It's best that you snoop around on your own and identify an issue or area of interest before asking for help. As much as possible the paper should be your idea, not mine. Last year the faculty was advised by the Associate Dean that seminar papers should be due on the last day of classes, which in this instance, would mean December 3rd. Extensions will only be granted on request, where there is a reason C a good reason C why the paper could not be finished on time. I will require an outline from everyone in the seminar - perhaps around Thanksgiving - but it is your choice whether to submit a draft for comments. If you do, please note that I prefer a more polished than unpolished version. Drafts that are too rough are difficult to read C often I can't tell exactly what you want to say C and it is not the best use of my time or yours. My e-mail is jcameron@yorku.ca and my office number is 416-736-5033. I hope you enjoy the seminar. My own reason for teaching it is that I believe s.7 is the very foundation of the Charter, and that it isn't really possible to understand the Charter without looking at s.7 and the influence of concepts like fundamental justice.
Selected Bibliography J. Cameron, ed., The Charter's Impact on the Criminal Justice System [Carswell: Toronto, 1996]. Colvin, Eric. "Section Seven of the Canadian Charter of Rights and Freedoms". 68 Canadian Bar Review (1989) 560. Cumming, Tom. "Fundamental Justice in the Charter". 11 Queen's Law Journal (1985) 134. Hogg, P. Constitutional Law of Canada [Carswell: Toronto, 4th ed. 1998], Chapter 44. Lee, Tanya. "Section 7 of the Charter: An Overview". 43 UT Faculty of Law Review (1985) 181. Roach, K. Due Process and Victims' Rights:The New Law and Politics of Criminal Justice [University of Toronto Press: Toronto, 1999]. Singleton, Thomas J. "The Principles of Fundamental Justice, Societal Interests and Section 1 of the Charter". 74 Canadian Bar Review (1995) 446. Whyte, John D. "Fundamental Justice: The Scope and Application of Section 7 of the Charter". 14 Manitoba Law Journal (1983) 455. -------------------------------------------------------------------------------------------------------------------------------------------
The 1st trilogy Each of the three trilogy decisions we want to look at here is a landmark in its own right. Not only is Singh important on some basic points of interpretation under s.7, it imposed significant administrative burdens on our system of refugee determination. Today there is a widespread perception, whether rightly or wrongly held, that our system of refugee determination is deeply flawed and lacking in legitimacy. The intersection of immigration law and s.7 might be a good paper, especially for somebody who has taken any of the law school's immigration courses. Though it does not appear to have been decided explicitly under s.7 of the Charter, the Supreme Court of Canada's recent decision in Baker v. Canada [July 9, 1999]- holding that with the best interests of Canadian-born children are relevant in immigration hearings for their parents - might be a viable class presentation or seminar paper topic. Otherwise, Singh is interesting because of the split in the Court: 3 judges decided the case under the Charter and 3 others, under the Canadian Bill of Rights. To this day, the B.C. Motor Vehicle Reference remains one of the Supreme Court's trail-blazing Charter decisions. What I am most interested in hearing is what C if anything C you find striking in Lamer J.'s opinion. In light of the legislative history which viewed s.7 as the Charter equivalent of natural justice, the Motor Vehicle Reference is quite extraordinary for what it accomplished. First is this question: how did the Court rationalize a substantive interpretation for s.7, and was the Court persuasive? Second, what authority does the Court claim for itself in the Motor Vehicle Reference, and is this exercise of judicial review problematic, or is it "free from any lingering doubts" of its legitimacy, as Mr. Justice Lamer claims? Finally, once having given s.7 a substantive interpretation, how does the Court define the content of fundamental justice? Is it acceptable for the Court to determine what it means on a case to case basis, or do you think the content of fundamental justice should be more determinate? It's also interesting to speculate what the Court may have had in mind in striking the motor vehicle provision under s.7. Was the Court simply responding, more or less reflexively, to a single statutory provision that was considered so unfair it could not be permitted to stand? In other words, does the substantive interpretation of s.7 read as a "one-off"? If not, do you think the Court had any idea that the Motor Vehicle Reference could result in the constitutionalization of mens rea across the board? What, if anything, can you tell about the Court's conception of its role and of the proper scope of judicial review? Perhaps we can hold some of these thoughts over to classes 6 and 7. What we want to be thinking, both here and there, is whether the Motor Vehicle Reference was wrongly decided. Should the Court have done something else instead? And if you agree with the Reference, do you also agree with the subsequent case law dealing with the constitutionalization of mens rea? Among the Court's early Charter decisions, I still have to regard Morgentaler as being one of the biggest blockbusters of all. Once again, in defiance of what was apparently a clear intention not to protect the right to seek an abortion, a majority of the Court struck down the Criminal Code's entire framework for therapeutic abortions. With the passage of time, the decision in Morgentaler may seem less momentous; at the time, it was considered incredibly significant, not only because it created a direct confrontation between Parliament, the courts and the Charter but also, because it was part of a whole network of decisions that together signalled the Supreme Court's approach to the Charter. In other words, a Court that was prepared to strike this legislation down surely would not be afraid to invalidate any legislation under the Charter . Three questions are of particular interest to me, and they are closely related to each other. First, why did members of the Court choose such different approaches to this issue, and how do you compare the Dickson/Beetz opinions, which decided the case on procedural grounds; Wilson J.'s reasons, which would have protected the right to an abortion, as a matter of substantive law; and McIntyre J.'s dissent, which argued that the procedural rationale was bogus and that the substantive interpretation was illegitimate? Which do you favour and on what grounds? Second, Morgentaler reveals the flaws of the substance-procedure distinction, and that requires us to come to some sort of conclusion about whether the distinction has any value. If so, do you agree with the role it played here? Third, Morgentaler is an interesting case study in institutional relations C a majority of the Court set out to achieve a certain objective [i.e., vindicate the s.7 right] but to do so without unduly antagonizing Parliament. What is your assessment of this aspect of the case? In the end, being so issue-specific, the decision in Morgentaler has not had a huge impact as precedent. Just the same, it is worth noting Dickson J.'s discussion of "security of the person", as well as Wilson J.'s definition of "liberty". Though hers was a concurring opinion, the passage in which she explains what "liberty" means for purposes of s.7 is cited with some frequency.
Cohen, R. "Fundamental (in)justice: The Deportation of Long-Term Residents from Canada" (1994) 32 O.H.L.J. 457 Gold, Alan D. "Case comment on Motor Vehicle Reference", 26 Criminal Law Quarterly (1983)29- 31. Goldberg Edward, "The Bad Law Argument in Morgentaler v. The Queen" (1989/90) 3 Can.J.Women & Law 584. Hathaway, J. & Neve, A. "Fundamental Justice and the Deflection of Refugees from Canada" (1996) 34 O.H.L.J. 213 Hogg, P., Constitutional Law of Canada [1998 Student edition at 891-96]. Lessard, Hester. "Relationship, Particularity, and Change: Reflections on R. v. Morgentaler and Feminist Approaches to Liberty" (1991) 36 McGill L.J. 264. Morton, Frederick, Morgentaler v. Borowski: abortion, the Charter and the courts [Toronto: McClelland & Stewart, 1992]. Wydrzynski, C. "Case Comment, Singh" (1986) 64 Can. B. Rev. 172 (Author?) "Fundamental Justice and Family Class Immigration: The Example of Pangli v. The Minister of Employment and Immigration" (1991) 41 U.Tor.L.J. 484 ------------------------------------------------------------------------------------------------------------------------------------------- Class 3: September 16 (when Thursday is Monday) "Life, liberty and
security of the person" For example, one of the early questions that surfaced under s.7 is whether liberty and security should encompass different sorts of economic or social interests. Two of the more important cases to discuss that question are the Prostitution Reference, and Wilson v. B.C. Medical Services Commission. In the Prostitution Reference, Lamer J., speaking only for himself, decided to address this issue and, in doing so, to articulate a particular conception of s.7 which would exclude these kinds of claims. He was critical of Wilson, the B.C. Court of Appeal decision that conferred s.7's protection on members of the medical profession whose right to practice was subject to certain restrictions. I would like to spend some time on this issue and, more specifically, on the question whether there is any reason to exclude social or economic liberty interests from s.7. On a related point, there are a number of cases in which s.7 has been invoked to try and protect a property interest or some sort of social entitlement. Fernandes and Bernard are illustrative of a number of decisions which express the view that s.7 was not intended to cover that kind of claim or to give rise to an affirmative entitlement against the state. Once again, the question is whether claims that have some sort of social or economic aspect should be absolutely excluded under s.7. Is the decision to exclude certain entitlements based on the text of s.7, on grounds of principle, or on some other rationale having to do, somehow, with the "legitimacy" of review? The point in going through this exercise is to test Chief Justice Lamer's particular conception of s.7, which was introduced in the Motor Vehicle Reference and then elaborated in the Prostitution Reference, but also to consider whether - if we don't like his view - there are any principles that can provide direction in defining the first part of s.7. As to "security of the person", the cases to look
at there include R. v. Morgentaler [as per Chief Justice Dickson];
Energy Probe v. A-G Canada; and R. v. Stillman, which we look at
in more detail in Class 10 dealing with the freedom from self-incrimination. Of
these cases, Energy Probe may be the most interesting, as there the issue
was whether legislation limiting liability in the event of nuclear energy
accidents was in breach of security of the person. Again the question is whether
the Court should be reading this part of s.7 narrowly or broadly. On one view, a
broad reading would trivialize the entitlements that are protected by s.7. On
another view, however, it may not be necessary to read this part of s.7
restrictively, given that limits can still be imposed either under the
"fundamental justice" part of the analysis, or under s.1. The General Division's judgment in Horsefield is also worth a look; there, the question was whether the suspension of a driver's license without proper procedural safeguards violates s.7, and in answering it the Court addressed both the liberty branch of the guarantee and the requirements of fundamental justice. For a decision on prisoners' rights see Cunningham v. Canada, [1993] 2 S.C.R. 143. Finally, although I have only found one citation for it, R v. Campbell is an interesting case - it illustrates just how broadly the concept of liberty can be interpreted. There, the accused challenged the constitutionality of laws which limited the rights f citizens to possess and use intoxicants on an Indian reserve. How should a court handle a claim of this kind? Should it be excluded from s.7 because the guarantee does not protect "lifestyle choices", or should it be determined on the grounds that the prohibition does not violate fundamental justice? Can you think of any "lifestyle" claims that have succeeded or should succeed under s.7 of the Charter? To conclude, what we want to think about in this session is how that first part of s.7 should be interpreted. That will depend, in part, on how broadly or narrowly we think s. 7 should be interpreted as a whole. It also depends on how we perceive the relationship between the first and second parts of s.7, and in turn, how we also see the relationship between ss.7 and 1. Maybe we won't come up with an unanswerable definition of "life, liberty and security of the person". Just the same, I would hope that we might be able to identify what should be included, and what should be excluded, if anything, and to have some idea why that interpretation of s.7 makes sense.
Johnstone, Ian. "Section 7 of the Charter and Constitutionally Protected Welfare". 46(1) Faculty of Law Review (1988) 1. Lepofsky, David. "A Problematic Judicial Foray into Legislative Policy-Making: Wilson v. B.C. Medical Service Commission". 68 Canadian Bar Review (1989) 615. Scassa, Teresa. "Social Welfare and Section 7 of the Charter: Conrad v. Halifax". 17 Dal. Law Journal (1994) 187. ------------------------------------------------------------------------------------------------------------------------------------------- Class 4: September 27 A conception of fundamental justice I have titled this class "A conception of fundamental justice" because I am wondering if it is possible, at this stage, to begin to articulate a vision of what s.7 means and how the guarantee functions. In more concrete terms, I have three kinds of issues that I would like to pursue in our discussion. The first concerns the relationship between the first branch of s.7 and the principles of fundamental justice. The second concerns the content of "fundamental justice" and the interpretation that concept is given by members of the Court in Rodriguez and Children's Aid Society. The third question addresses the relationship between s.7 and other guarantees in the Charter: section 15, for example, in Rodriguez and s.2(a) in the Children's Aid Society decision. Rodriguez is a fascinating case from the perspective of plotting how different members of the Court approached their responsibility under the Charter, on a difficult issue that divides the public. Justices Sopinka and McLachlin treated the Criminal Code prohibition against assisted suicide as a s.7 issue, but came to a different conclusion as to its constitutionality. In the circumstances, it was easier to agree that s.241 interfered with security of the person than to interpret the principles of fundamental justice. Are you surprised, either that Justice Sopinka found no breach of s.7, or that Justice McLachlin found a breach which, in her view, was not justified under s.1? As for Chief Justice Lamer, why does he choose, instead, to analyze s.241 under s.15 of the Charter, and do you find his equality analysis convincing? Which route do you think was preferable to decide the case: s.7 or s.15? And what about remedy and the so-called "institutional consequences" of judicial activism in this area? Are you with Sopinka J.'s approach on this, or do you favour the result that was endorsed by the dissenting opinions? Although we have more on our bibliography for Rodriguez than Children's Aid Society, it is a compelling question whether a child's parents are protected by s.7 in their decision to refuse medical treatment [i.e., blood transfusions] on religious grounds. Once again, the decision is somewhat frustrating because members of the Court were unable to agree what approach to s.7 should govern. Although no other member of the Court agreed with it, the Chief Justice's conception of s.7 warrants our attention. Does his view of s.7 seem to be off the rails, or can you see some merit in the way he would like to see the guarantee interpreted? Under his approach, of course, the claim would fail. Justice La Forest offers an alternative interpretation of s.7, and comes to the conclusion that attempts to balance the interests of the parents and children through the principles of fundamental justice. In the circumstances, he found that the constitutional requirements of fundamental justice had been met. Perhaps most interesting of all, in the "Sheena B" case, is the exchange that takes place between Justices Iacobucci and Major JJ. [who formed a team, with Cory J., concurring] and La Forest J., whose opinion essentially mustered five votes of support [L'Heureux-Dube J. wrote at length on the cross-appeal of costs; do not bother with that issue]. In their opinion, there was no infringement of any of s.7's entitlements or of s.2(a). Basically, their position is that "[t]here is simply no room within s.7 for parents to override the child's right to life, liberty and security of the person." It is a bit unusual C in the sense that you don't see this often in Supreme Court of Canada case law C that La Forest J. included an addendum to his reasons specifically to answer what Iacobucci and Major JJ. have to say about his interpretation of s.7. Although Rodriguez is a much higher profile case, the Children's Aid case provides a very interesting glimpse of a Court that simply cannot agree on an interpretation of s.7. As we head, next week, into specific aspects of the s.7 jurisprudence it is worth asking: is there any conception of s.7 that can be found in the Supreme Court of Canada decisions? And if not, do we have any suggestions, ourselves, as to how the Court should be interpreting s.7? Although I don't expect that we'll be able to answer these questions or come up with a coherent model for s.7, we should have two objectives in mind: the first is a critical analysis of the Court's decisions, and second is a constructive attempt either to cull principles or to create guidelines for the interpretation of this guarantee.
Dundas, Ian. "Rodriguez and Assisted Suicide in Canada". 32(4) Alberta Law Review (1994) 811. Jackman, Anne. "Solutions in Sciences Outside of the Law? Rodriguez v. British Columbia". 17 Dal. Law Journal (1994) 206. Myktiuk, Roxanne and Jeremy Paltiel. "Terminal Care, Terminal Justice: The Supreme Court of Canada and Sue Rodriguez". 5 Constitutional Forum (1994) 38. ------------------------------------------------------------------------------------------------------------------------------------------- Class 5: October 4 Vagueness and Overbreadth Introduction Where vagueness and overbreadth ought to fit into the Charter's analytical framework raises another important question. There, Gonthier J. stated that, "'the doctrine of vagueness' is a single concept, whether invoked as a principle of fundamental justice under s.7 of the Charter or as part of s.1...." (Nova Scotia Pharmaceutical). Does it make any difference whether vagueness is treated as a s.7 or as a s.1 issue? To try and answer that question, walk yourself through a vagueness analysis: what would you have to ask to establish a prima facie breach under s.7? And then what would be required under s.1? In the first instance, we will spend a few moments thinking through the structure and relationships of Charter analysis. How do overbreadth and vagueness relate to one another; how do ss.7 and 1, including the "prescribed by law" element, relate to one another? A second important point concerns the standard the Court has established to test the vagueness of statutory provisions. Nova Scotia Pharmaceutical provides a summary of the Supreme Court's wisdom on this issue in a number of cases (including the Prostitution Reference, Osborne v. Canada (Treasury Board), and R. v. Butler). As you'll see, the Court constantly speaks in terms of an intelligible standard, and asks searing questions like, can the provision be, or has it been given, sensible meaning by the courts? (per Lamer J., the Prostitution Reference). But what kind of standard is that, to ask whether a provision can be sensibly interpreted [i.e., after the fact], and whether it still remains vague, once having been given "the benefit of judicial interpretation", to use the words of Chief Justice Dickson in the Prostitution Reference? Is the test too deferential? Why or why not? Would it be problematic, do you think, for the courts to take a more demanding approach to the question of vaguely worded laws? Does the failure to do so make a mockery of the whole point of a vagueness doctrine, which is to protect individuals from the arbitrary application of laws? On the other hands, are important institutional interests served by the Court's decision to set a relatively high threshold on this issue? In terms of readings for class and the focus of discussion, Nova Scotia Pharmaceutical is a cornerstone case, and you should read it as an introduction to the topic. This case may well set out basic principles but they tend to be abstract and Nova Scotia Pharmaceutical does not strike me as being all that riveting a case for discussion purposes. I think it would be more useful to focus attention on Heywood (where the claim succeeded but the Court was divided), and on Morales (where the claim likewise succeeded under s.11(e) of the Charter - bail - and the Court was likewise divided). In these two cases I am interested in teasing out the reasons why the Court divided, and trying to articulate what general principles, if any, we can extrapolate from this area of s.7 jurisprudence.
See also:
MacIntosh, Donald. "The Vagueness Doctrine and Overbreadth: A Comment on Canada v. Pharmaceutical Society (Nova Scotia)". 2 N.J.C.L (1992) 242. Notes and comments, "R. v. Nova Scotia Pharmaceutical Society". 35 Criminal Law Quarterly (1992) 18. Ross, June. "R. v. Heywood: Overbreadth in the Law or in the Judgment?". 6 Constitutional Forum (1995) 88. Stuart, D. "The Canadian Void for Vagueness Doctrine Arrives with no Teeth" (1990, 67 C.R. (3d) 101. ------------------------------------------------------------------------------------------------------------------------------------------- Class 6: October 18 The constitutionalization of mens rea
We have already seen what the B.C. Motor Vehicle Reference
had to say about absolute liability offences. But what about Sault Ste. Marie's
other two categories, and to what extent would the Supreme Court of Canada
constitutionalize all of mens rea? The answers the Court has provided to
those questions are not particularly satisfying. Absolute and strict liability offences In Hess, the Court upheld a challenge to the statutory rape provision of the Criminal Code, which made it an offence to have intercourse with a female person under the age of 14, "whether or not [the accused] believes that she is of fourteen years of age or more." It is that latter part of the Criminal Code provision that created an absolute liability offence which was in breach of fundamental justice, and not saved by s.1. Instead of invalidating the provision, the Court struck the offending words, which foreclosed any opportunity for a defendant to establish a defence based on reasonable belief or due diligence as to age. In Pontes, the s.7 issue arose under a provision that
any driver who was convicted of a driving-related Criminal Code offence
was "automatically and without notice" prohibited from driving for 12
months. The Court divided on the question whether it should be classified as an
absolute liability or as a strict liability offence. Cory J., for a majority,
concluded that the statute effectively barred due diligence, and Gonthier J.,
for a minority of 4, held that due diligence was not pre-empted and that the
provision created a strict liability offence. The majority managed to
"save" the provision nonetheless, by reading any penalty of
imprisonment out of the measure. Wholesale Travel is significant, in part, because of the
distinction the Court drew between "true crimes" and regulatory
offences. Not surprisingly, its reliance on the distinction brought this
question to the fore: so how do you tell the difference between the two? What
criteria are used by the Court to decide what the minimum fault requirement is
under s.7? True crimes Vaillancourt challenged the constitutionality of the heavily criticized felony murder rule, which permitted an accused to be convicted of murder if a death occurred in the course of certain specified crimes being committed. The whole point of the felony murder rule is to dispense with any requirement that the Crown establish mens rea as to the death; the commission of the underlying offence is sufficient to satisfy the fault requirement for murder. Without committing itself to a view of subjective versus objective fault, the Court found that the felony murder rule was unconstitutional. Justice Lamer's lead in Vaillancourt was followed in Martineau, which decided C by a majority C that s.7 required subjective fault to be shown in the case of murder. Pausing here to make a few observations and raise a few points C the first question is whether the results in Vaillancourt and Martineau follow from the Motor Vehicle Reference. To put it another way, how much of an extension do these decisions represent, and are they a legitimate extension of the basic principle or principles of the Motor Vehicle Reference? A second question is C by what criteria does the Court decide whether subjective mens rea is required? Here, you should pay close attention to Justice Lamer's references to stigma and penalties. Is that a useful way to decide what level of fault is required by s.7, and what do you think of the critiques that are offered by the dissenting opinions of McIntyre J. [Vaillancourt] and L'Heureux-Dubé J. [Martineau]. Third, what are the implications for any number of other Criminal Code provisions which prohibit "true crimes" but don't necessarily impose a requirement of subjective fault? Here is where the Supreme Court of Canada jurisprudence breaks down and becomes extremely difficult to defend. The five cases we could look at to determine how successfully the Court has applied its own criteria are: DeSousa [unlawfully causing bodily harm]; Nova Scotia Pharmaceutical [competition]; Hundal [dangerous driving]; Finlay [storing a firearm]; Naglik [failing to provide the necessaries of life]; and Creighton [unlawful act manslaughter]. In each of these cases a majority of the Court concluded that fundamental justice did not require a subjective element of fault. In Hundal, the Court cited Wholesale Travel for the proposition that "in the appropriate context, negligence can be an acceptable basis of liability." The concept of "an appropriate context" became a recurring theme in the cluster of cases decided around the same time. It would probably be best for you to read Vaillancourt, Martineau, maybe one of Hundal, Finlay and Naglik, and then Creighton. In terms of class discussion, I would like to focus on three questions. The first is whether this group of cases has any merit, coherence or redeeming value. In other words, can we salvage any principles from this case law that would explain and rationalize it. Second is whether, in hindsight, this jurisprudence casts doubt on the initial decision in the Motor Vehicle Reference, to constitutionalize the substantive criminal law. Third, where would we like to see the Court go from here? At present, this area of s.7 appears to be dormant in the main. Should the Court back off in this area, or press on?
Carlton, Ted. "A Principled Approach to the Constitutional Requirement of Fault". 24(3) Ottawa Law Review (1992) 613. "Criminal Reports Forum: Objective Fault in the Supreme Court", (1993) 23 C.R. (4th) 240-79. France, Simon. "Gains and Lost Opportunities in Canadian Constitutional Mens Rea". 20 Queen's Law Journal (1995) 533. Gold, Alan. "Constructive Manslaughter Should Not Have Survived" (1993) 23 C.R. (4th) 262. Grant, Isabel. "The impact of Vaillancourt v. The Queen on Canadian Criminal Law". 28 Alberta Law Review (1990) 443. Healy, Patrick. "Wholesale Travel and B.C. Motor Vehicle" (1990) __Can. Bar Rev.761. Hogg, P. Constitutional Law of Canada [1998 Student edition, at 896-911.] Litkowski, R., "The Charter and the Principles of Criminal Responsibility: a Long and Winding Road", in J. Cameron, ed., The Charter's Impact on the Criminal Justice System, Chapter 14. McManus, Kathleen. "The Sleeping Giant of Rights: Section 7 and Substantive Review". 3 Dal. Journal of Legal Studies (1994) 35. Stuart, Don. "The Implications of Desousa for the Crimes of Aggravated Assault and Dangerous Driving". 16 C.R. (4th) (1993) 326. __________ "The Supreme Court Drastically Reduces the Constitutional Requirement of Fault: A Triumph of Pragmatism and Law Enforcement Expediency" (1993) 15 C.R. (4th) 88. ------------------------------------------------------------------------------------------------------------------------------------------- Class 7: October 25 The constitutionalization of defences If we take the view that the defences must include an element of fault that is in accordance with principles of fundamental justice, which ones, if any, fall short of that standard? The two that have attracted the most attention under the Charter thus far are intoxication and insanity, which we now refer to as "not criminally responsible by reason of mental disorder." Included in the list of cases are two decisions dealing with s.17 of the Criminal Code, dealing with the defence of duress, and R. v. Finta, which addresses a variety of issues about war crimes (such as the requisite level of mens rea C subjective knowledge of the facts that constitute the offence C and the status of obedience to military orders and whether that can provide a defence under s.7). Our seminar discussion will focus primary attention on the
relationship between s.7 of the Charter and the defences of intoxication
and NCR under s.16 of the Code. Intoxication Daviault is controversial because, on facts that are ugly and cannot be easily sanitized, the Court allowed an accused to raise a defence of intoxication in answer to a charge of sexual assault. In doing so, a majority of the Court, led by Cory J., re-confirmed the validity of the distinction between general and specific intent offences, but held that the relevant mens rea for sexual assault was the mens rea to commit the assault, and not the mens rea to become intoxicated. As a result, he concluded that s.7 does not permit the accused's fault in becoming intoxicated to be substituted for the mens rea that would ordinarily have to be shown to secure a conviction for sexual assault. Sopinka J., in dissent, found both that self-induced intoxication was sufficiently blameworthy in and of itself to support a conviction for sexual assault, and that policy dictated against a defence of intoxication being permitted in the circumstances. As a matter of common sense, it hardly seems right that an individual who has committed an offence can be better placed to defeat a conviction by virtue of being purposely drunk rather than sober. Most members of the public would regard the drunkenness as more of an aggravating or exacerbating factor than as a mitigating or excusing aspect of the offence. On the other hand, Cory J. may well be right in principle, that if a individual is so intoxicated as to be an automaton, then he or she lacks both the elements of volition and of fault for the act that is committed in those circumstances. Punish such individuals for what they can properly be held responsible [i.e., intoxication], but not for what was done involuntarily. One question we might discuss is whether the Charter adds anything to this debate. As you may recall, differences of opinion at the Supreme Court of Canada pre-date the Charter, and can be tracked through its decisions in Leary and Bernard. Another question is this: exactly what principle of fundamental justice is violated by a doctrine that would remove the defence of intoxication for general intent offences? Where does such a principle come from, and what is its content? Finally, is this the kind of violation that could be justified? Further issues to think about are whether Cory J. is
successful in his attempt to explain how very narrow the defence is that the
majority constitutionalizes in Daviault. In addition, take a look at
s.33.1 and spend a moment considering whether Parliament's response to Daviault
is Charter-proof. Alternatively, is this the kind of situation in which
Parliament ought to have invoked the s.33 override? NCR [insanity] A second issue in Swain was whether the Criminal Code provisions dealing with the disposition of those acquitted by reason of mental disorder are in breach of fundamental justice. There the Court also found a violation of s.7, in that custodial dispositions are made without a hearing, and the accused is detained indefinitely, as a result. To avoid an hiatus in the system, the Court granted an order of temporary validity C which effectively suspended its finding of unconstitutionalityC for a period of six months. This enabled Parliament to re-legislate in a way that would not offend s.7. Early in the summer of 1999, the Court decided a cluster of decisions that raised s.7 challenges to the assessment criteria which are set out in s.672.54 of the Criminal Code, to determine the status of accused persons who have been committed following a finding of NCR. In each of these cases the Supreme Court of Canada upheld the legislation.
Mental disorder Intoxication Obedience (military orders) Duress
Healy, Patrick. "Another Round on Intoxication". 33 C.R. (4th) 269. ____________ "Intoxication in the Codification of Canadian Criminal Law". 73 Canadian Bar Review (1994) 515. ____________ "R. v. Chaulk: Some Answers and Some Questions on Insanity" (1991), 2 C.R. (4th) 95. ____________ "Self-Induced Intoxication no Defence: R. v. Penno". Kirewskie, Cassandra. "Intoxication without Responsibility: Are there no Limits to the Defence?" 7 N.J.C.L 110. Kirewskie, Cassandra. "R. v. Daviault: Expanding the Intoxication Defence". 5 N.J.C.L. Paciocco, D. Getting Away With Murder: The Canadian Criminal Justice System (Toronto: Irwin Law, 1999), Chapter 15 [Disordered minds: Insanity, Automatism and Intoxication] Quigley, T. "Developments in Criminal Law and Procedure: The 1990-91 Term", [1992], 3 Supreme Court Law Review 121. Shaffer, Martha. "Criminal Responsibility and the Charter: The Case of R. v. Daviault", in J.Cameron, ed. The Charter's Impact on the Criminal Justice System, Chapter 16. Stuart, D. "Will Section 1 Now Save Any Charter Violation? The Chaulk Effectiveness Test is Improper" (1991) 2 C.R. (4th) 107. Wilkinson, Joseph. "The Possibility of Alcoholic Automatism: Some Empirical Evidence". 2 Can. Crim. Law Rev. (1997) 217. ------------------------------------------------------------------------------------------------------------------------------------------- Class 8: November 1 Extradition Introduction Still, Kindler and Ng remain the Court's two most controversial decisions in this area. A majority of the Court in each rejected the applicability of s.12 and found that the Minister of Justice's decision to order extradition without first seeking assurances that the death penalty would not be sought did not violate s.7. Justices Sopinka and Cory wrote separately in dissent, with Sopinka J. reaching his decision under s.7 and Cory J., under s.12. The test in determining whether an extradition order breaches fundamental justice was established in Canada v. Schmidt, [1987] 1 S.C.R. 500. There, the Court held that an extradition order that would "shock the conscience" would be in violation of s.7. Justices La Forest and McLachlin J., in separate opinions, explain their conclusion in Kindler that surrendering the accused unconditionally, to face the prospect of capital punishment, does not offend the principles of fundamental justice. Here, I am interested in the following issues. What kind of standard is a "shock the conscience" test, and if it's not satisfied by the death penalty, what would it take for a majority of the Court to conclude that an extradition order would be unacceptable as to violate fundamental justice? Torture? I also have some questions about the kinds of rationales that Justices La Forest and McLachlin offer to rationalize their decisions. Are their reasons persuasive, or is there just a hint of expedience in the decision to offer fugitives up to another country that would happily prosecute them for the offences they are said to commit? On the other hand, what are Justices Sopinka and Cory thinking, and why should fugitives of this ilk be harboured C and protected from accountability for their crimes C by our Charter? How do you think the Court should deal with questions of extradition? Time permitting, I would like to spend a few minutes talking about the Hurley case, because it raised a s.15 challenge to an extradition order. More specifically, the claim was that to surrender the extraditee would expose him to discrimination in Mexico, where he was likely to be mistreated because of sexual orientation. Should Hurley have a better chance of resisting extradition than a person who will face the death penalty? Why or why not? A final question about extradition is this: where does it fit into the general scheme of s.7 and the principles of fundamental justice? Does it fit within a conception of the guarantee or does it strike you more as being miscellaneous C miscellaneous in the sense of not being analogous to, or a part of, the rest of the jurisprudence?
Michell, Paul
"Domestic
Rights and International Responsibilities: Extradition under the Canadian Charter"
(1998), 23 Yale J. Int. Law 141 Schabas, William. "Kindler and Ng: Our Supreme Magistrates Take a Frightening Step into the Court of Public Opinion", (1991) 51 R. du Barreau 673. Spencer, Amanda. "Fugitive Rights: the role of the Charter in Extradition Cases", (1993) 51 U.Tor.Fac.Law Rev. 54. Williams, Sharon. "Extradition from Canada Since the Charter of Rights", in J. Cameron, ed., The Charter's Impact on the Criminal Justice System, Chapter 22. _____________ "Extradition to a State That Imposes the Death Penalty" (1990) 28 Can.Y.B. Int. Law 117. ------------------------------------------------------------------------------------------------------------------------------------------- Class 9: November 8 Bias Introduction I am not sure it is right to label the first two entries as "abuse of process". Certainly abuse of process has generated an impressive jurisprudence under s.7. The two cases mentioned here are interesting for different reasons. In Latimer the problem was that the prosecution interfered with the jury pool, the first time he was tried, in a way that undercut the fairness and impartiality of the proceedings. Meanwhile, though R.D.S. is not a Charter case per se, it raises important questions about bias and reveals an interesting difference of opinion among members of the Court. R.D.S. has generated a certain amount of case commentary, and you might want to keep it in mind as a class presentation topic, or even as a paper topic. The next set of cases have to do with juries and the question of jurors who might consciously or unconsciously harbour biases against certain kinds of criminal defendants. There has been a great deal of writing, obviously, about "the jury", and the question of bias has received quite a bit of attention. Still, this is an issue that is relatively new in Canada and so class presentations or papers on these kinds of questions might also be interesting. [I might add, parenthetically, that access to jury deliberations C while going more to the issue of wrongful conviction C has been controversial in Canada and might be another viable paper topic.] Finally there are questions about bias in institutional settings C professional discipline hearings for example, and perhaps even in the context of military justice. The right to an unbiased hearing being one of the elements of natural justice, there may not be as great a need for Charter activity in this area. I may want to refine this session in the next few weeks, to give the readings and issues to be discussed a sharper focus. Anyone who is interested in doing either a presentation or a paper on this type of question should get in touch with me.
Abuse of process Jury selection Discipline proceedings
Graycar, Regina. "The Gender of Judgments: Some Reflections on Bias". 32(1) U.B.C. Law Review (1998) 1. Forum on R. v. R.D.S.: Dalhousie L.J. 199 Hughes, Patrick. Case comment "S. (R.D.): A New Direction in Judicial Impartiality?" 9 N.J.C.L. 251. Manning, Morris. "Administrative Tribunals, Charter and Constitutional Issues in Disciplinary Proceedings", (1994) 7 C.J.A.L.P. 109. Omatsu, Maryka. "The Fiction of Judicial Impartiality". 9 C.J.W.L. (1997) 1. Razack, Sherence. "R.D.S. v. her Majesty the Queen: A Case About Home". 9 Constitutional Forum (1998) 59. Tanovich, David. "The Future of the Challenge for Cause in the Wake of Williams". 15 C.R. (5th) 250. ------------------------------------------------------------------------------------------------------------------------------------------- Class 10: November 15 The right to remain silent; freedom from self-incrimination Introduction For my money the most interesting question in all these cases C and they are linked but diverse C is what holds them together and what links them to s.7. For example, the right to remain silent is not specifically guaranteed elsewhere by ss.8-14. So how does it surface under s.7 and what is its content [i.e., where does that content come from and what makes the entitlement a "fit" under s.7?]. By the same token, freedom from self-incrimination is dealt with elsewhere in the Charter, so what is the remainder that is left under s.7? Why is there any need to deal with the issue under s.7, how does the Court rationalize its decisions, and what, again, is the glue that holds this aspect of s.7 together? To be sure, there are interesting and legitimate doctrinal questions to pursue in this seminar session. In terms of the right to remain silent, what is the source of the principle, and what does it add to s.7, given the right to counsel, the privilege against self-incrimination, and the common law doctrine of confessions? And what is the scope of the right; should it be defined in objective or subjective terms? Finally, to what extent is this a question of balancing, and how do we, as a seminar group, respond to the choice between ad hoc choices between competing interests [i.e., what's "right" in the circumstances] and bright line rules, more absolute principles about what is and is not appropriate. As for self-incrimination, there it is important to separate the investigative and testimonial branches of the entitlement. In that regard, Stillman is quite important on the investigative side, and other cases, like R. v. S.(R.J.) and Branch, are more significant on issues of compellability. We may want to define what we focus on in this seminar discussion; much depends, perhaps, on whether there are any class presentations and whether they take a case comment approach. Allowing for flexibility on those issues, I guess my main concerns and issues are about how this branch of the s.7 jurisprudence fits in with the rest, what it adds, and how we define, in concrete terms, what it means to say that these entitlements are independently protected under s.7, despite the overlap with other Charter guarantees.
Goddard, Tom. "Stillman: the Majority Could not have Intended to Exclude Alternative Conscriptive Means from Consideration under the 'Discoverability' Principle". 5 C.R. (5th) (19970 110. Stuart, Don. "Eight Plus Twenty-four Two Equals Zero". (Stillman) 13 C.R. (5th) (1998) 50. Wall, Gordon. "Doubts cast on Hebert Limits on the Pre-Trial Right to Silence". 36 C.R. (4th) 134. ------------------------------------------------------------------------------------------------------------------------------------------- Class 11: November 22 Fair trial: full answer and defence - part 1 Introduction Before turning to that issue, I should remind members of the seminar that there are other fair trial issues that would make very good paper topics and could even be the subject of a class presentation. In order not to foreclose any possibilities, I have left our last session open to creative maneuver. So if anyone or more of you would like to address a topic that is not specifically mentioned or is not addressed in the planned sessions, there is room in our final session. Back to full answer and defence. One of the first issues is to determine what this concept means, and to consider what the accused "gets" under s.7 of the Charter which wasn't available before. Stinchcombe is a leading decision because it articulated the Crown's obligation of disclosure as part of the accused's right of full answer and defence and, in turn, of the broader guarantee of a fair trial. Although it raised questions of application, the principle for which Stinchcombe stands did not appear to be all that controversial. But then it took on all kinds of freight when the duty to disclose was extended to third parties in possession of records, notes or documents which C if held by the Crown C would be subject to Stinchcombe. It is at this point that the rights of the accused began to butt up against the rights of victims or complainants in sexual assault cases, and s.7 came potentially into conflict with ss. 8 and 15. The result is a series of cases which consider when an accused can lay claim to third party records, as an element of full answer and defence under s.7, and when protection of the privacy interests of complainants should prevail instead. There have been three Supreme Court of Canada decisions on point: O'Connor, Carosella, and A.B. v. L.L.A. As you will see, the Court divided in these cases, with some judges adopting an approach that tipped the balance in favour of full answer and defence, and others, showing greater reluctance to allow access to such records. There has been a tremendous amount of writing and discussion about these cases. In addition, Parliament responded to O'Connor with Bill C-46, which was introduced in 1996. [see s.278.2 and following of the Criminal Code, dealing with the production of records to the accused]. The constitutionality of parts of these amendments has been called into question in some lower court decisions. There are a number of ways to deal with this collection of issues in our seminar session. We can and should look at the Supreme Court of Canada decisions in some detail, and in doing so should try to identify the underlying assumptions of full answer and defence, as well as to determine what conception of criminal justice emerges in the different opinions, and whether the extension of disclosure to third parties is an unwarranted intrusion or a logical consequence of Stinchcombe. I think we should also look at Parliament's response and how it has fared thus far in the courts. Comparing Parliament's response to Daviault and O'Connor might be an interesting paper topic. Somewhere in here, whether in this session or the next, we should also take a broader look at the whole question of the Charter and the impact it has had on the conceptual underpinnings of the criminal justice system. If it has enhanced the rights of the accused, it has also increased expectations on the part of certain categories of victims that their interests will be better protected. There has been some interesting writing on this as well. I'd like to leave it at this for now, give you a chance to identify what parts of this issue you find most interesting, and structure the actual seminar session accordingly.
Disclosure
Busby, Karen. "Discriminatory Uses of Personal Records in Sexual Violence Cases". 9 C.J.W.L. (1997) 148. Epp, John. "Production of Confidential Records Held by a Third Party in Sexual Assault Cases: R. v. O'Connor". 28 Ottawa Law Review (199601997) 191. Feldthusen, Bruce. "Access to the Private Theraputic Records of Sexual Assault Complainants". 75(4) Can. Bar Review (1996) 537. Gilmour, J. "Counselling Records: Disclosure in Sexual Assault Cases" in J. Cameron, ed. The Charter's Impact on the Criminal Justice System, Chapter 13. Gold, Alan, "Case Comment C shredding rape crisis centre records" (1997) 40 Crim.L.Q. 28. Holmes, Heather. "Access to Third Party Records: Does R. v. O'Connor Occupy the Field?" 44 C.R. (4th) 144. Holmes, Heather. "An Analysis of Bill C-46, Production of Records in Sexual Offence Proceedings". 7 Can. Crim. Law Rev. (1997) 71. Martin, D. "Rising Expectations: Slippery Slope or New Horizon?..." in J. Cameron, ed. The Charter's Impact on the Criminal Justice System, Chapter 5. Mitchell, Graeme G. "A Criminal Reports Forum on O'Connor and B.(a): Abuse of Process, Disclosure and Access to Therapeutic Records C Abuse of Process and the Crown's Disclosure Obligation". 44 C.R. (4th) 130. Mitchell, Graeme G. "R v. Carosella: Difficult Cases Make Dangerous Law" (1997) 4 C.R. (5th) 209. Neufeld, Andrea "A Case Comment on the Production of Sexual Assault Counselling Records" (1995) 59 Sask. L. Rev. 335. Notes and comments "Charter of Rights - Full answer and Defence - Shredding Rape Crisis Centre Records". 40 Criminal Law Quarterly (1997) 28. Paciocco, D. "In Defence of R. v. Carosella: the Continuing Need for prejudice" (1997) 4 C.R. (5th) 199. _________, "The Constitutional Right to Present Defence Evidence in Criminal Cases" (1985) 63 Can. B. Rev. 519 Peters, Martin. "Third Party Disclosure under O'Connor: Defence Concerns". 44 C.R. (Th) 178. Renke, Wayne, "Records Lost, Rights Found", (1997) 35 Alta. L. Rev. 1083. Roach, K. Due Process and Victims' Rights, Chapters 5 & 9. Stuesser, Lee. "Abuse of Process: The Need to Reconsider". 29 C.R. (4th) 92. van Dieen, Jodie. "O'Connor and Bill C-46: Differences in Approach". 23 Queen's Law Journal (1997) 1. ------------------------------------------------------------------------------------------------------------------------------------------- Class 12: November 29 Fair trial: full answer and defence - part 2 Introduction For example, limits on cross-examination may limit an accused's right to probe or pursue certain lines of questioning that may raise a reasonable doubt as to guilt. The scope of cross-examination has been most controversial in the context of sexual assault, and changes in the law such as the "rape shield" which was challenged under s.7 of the Charter in R. v. Seaboyer. There, a majority of the Court held that s.276 of the Criminal Code violated ss. 7 and 11(d), against a strong dissenting opinion by Madam Justice L'Heureux-Dubé [which was concurred in by Gonthier J.]. Seaboyer unleashed a storm of controversy, in which a tremendous amount of criticism was aimed at Madam Justice McLachlin, who authored the majority opinion. Parliament responded with measures addressing the meaning of consent [s.273.1] and provisions regulating access to evidence of a complainant's sexual activity [s.276]. There are a number of possibilities for class discussion or presentations arising from Seaboyer. Though the decision may be dated at this point in time, it is worth looking at the majority and minority opinions for their differing conceptions of criminal justice values. It also might be interesting to compare McLachlin J.'s majority opinion in Seaboyer with her decision to join L'Heureux-Dubé J. in the third party disclosure cases, and to dissent in Osolin. Has she taken a consistent position in these cases? Why or why not? Another related decision is Osolin v. the Queen, which deals with the constitutionality of s.265(4) of the Criminal Code [i.e., the requirements pertaining to the accused's belief as to consent], as well as with the accused's right to cross-examine the complainant on her medical record. Once again, the array of opinions in Osolin are revealing of the different conceptions of the criminal justice system that are held by members of the Court. We may want to look at Seaboyer and Osolin together, in sequence, or in comparison with the third party disclosure cases. Other decisions that have been included in this unit deal with limits on the accused's right to confront his or her accuser through mechanisms that have been introduced to protect "vulnerable" witnesses. Two such provisions in the Criminal Code are s.486(2.1) which contemplates that certain testimony may be taken outside the courtroom, and s.715.1, which allows for the prospect of videotaped evidence. Although such measures do not appear to be as controversial, they do constitute a limit on full answer and defence. I have included a reference to the right to an appeal in this section. It doesn't seem to fit at all, does it? I am going to leave it in anyway, as there are other "fairness" issues floating around s.7, like the right to an appeal and the right to reasons, which one or more of you may have an interest in pursuing.
Confrontation Right to an appeal
Mewett, A., Editorial: "Child Witnesses" (1993) 35 Crim. L.Q. 401 Roach, K., Due Process and Victims' Rights, Chapter 5. Stuart, D. "Charter Protection Agsint Law and Order, Victims' Rights and Equality Rhetoric" in J. Cameron, ed., The Charter's Impact on the Criminal Justice System, Chapter 17. The right to reasons MacDonell, I.
"Reasons
for Judgment and Fundamental Justice",
in J. Cameron, ed., The Charter's
Impact on the Criminal Morris, M. "Administrative Decision-makes and the Duty to Give Reasons: An Emerging Debate" 11 Can.J.Admin.L.Practice 155 |
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