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Difference between revisions of "Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX)"
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Criminal Law and the Canadian Charter of Rights and Freedoms (1:IX) (view source)
Revision as of 00:05, 30 August 2022
, 00:05, 30 August 2022→B. Section 1 of the Charter
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== B. Section 1 of the Charter == | == B. Section 1 of the Charter == | ||
The ''Canadian Charter of Rights and Freedoms'', enacted in 1982, changed criminal law so that an accused had constitutionally guaranteed rights that could not be infringed unless the government could show that such an infringement was demonstrably justified in a free and democratic society. | The ''[https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html Canadian Charter of Rights and Freedoms]'', enacted in 1982, changed criminal law so that an accused had constitutionally guaranteed rights that could not be infringed unless the government could show that such an infringement was demonstrably justified in a free and democratic society. | ||
Section 1 of the ''Charter'' is often referred to as the “reasonable limits clause” because it is the section that can be used to justify a limitation on a person’s ''Charter'' rights. ''Charter'' rights are not absolute and can be infringed if the Courts determine that the infringement is reasonably justified. | Section 1 of the ''Charter'' is often referred to as the “reasonable limits clause” because it is the section that can be used to justify a limitation on a person’s ''Charter'' rights. ''Charter'' rights are not absolute and can be infringed if the Courts determine that the infringement is reasonably justified. | ||
Section 1 arises in cases where a ''Charter'' infringement is being argued. In order for the ''Charter'' infringement to be justified, the government has to prove to a court that its actions satisfy the steps in a section 1 analysis. The standard of proof is the civil standard | Section 1 arises in cases where a ''Charter'' infringement is being argued. In order for the ''Charter'' infringement to be justified, the government has to prove to a court that its actions satisfy the steps in a section 1 analysis. The standard of proof is the civil standard, 'on the balance of probabilities', which is not as difficult to prove as the criminal standard of 'beyond a reasonable doubt'. | ||
The ''Oakes'' Test is a legal test created by the Supreme Court of Canada in the case ''R v Oakes'', [1986] 1 SCR 103. ''[https://www.canlii.org/en/ca/scc/doc/1986/1986canlii46/1986canlii46.html?searchUrlHash=AAAAAQAJciB2IG9ha2VzAAAAAAE&resultIndex=1 R v Oakes]'' provided the Court with the opportunity to interpret the wording of section 1 of the ''Charter'' and to explain how section 1 would apply to a case. The result was the ''Oakes'' Test – a test that is used every time a ''Charter'' violation is found. | The ''Oakes'' Test is a legal test created by the Supreme Court of Canada in the case ''R v Oakes'', [1986] 1 SCR 103. ''[https://www.canlii.org/en/ca/scc/doc/1986/1986canlii46/1986canlii46.html?searchUrlHash=AAAAAQAJciB2IG9ha2VzAAAAAAE&resultIndex=1 R v Oakes]'' provided the Court with the opportunity to interpret the wording of section 1 of the ''Charter'' and to explain how section 1 would apply to a case. The result was the ''Oakes'' Test – a test that is used every time a ''Charter'' violation is found. | ||
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# There must be a rational connection between the objective (i.e., the policy) and the means chosen (i.e., the law); | # There must be a rational connection between the objective (i.e., the policy) and the means chosen (i.e., the law); | ||
# The means chosen should constitute a minimal impairment of that ''Charter'' right; and | # The means chosen should constitute a minimal impairment of that ''Charter'' right; and | ||
# The harm done by the means chosen should be proportionate to the government’s objective (e.g., the more harmful the violation, the more important the objective must be). | # The harm done by the means chosen should be proportionate to the government’s objective (e.g., the more harmful the violation, the more important the objective must be). | ||
== C. Right to a trial within a reasonable time: s 11(b) == | == C. Right to a trial within a reasonable time: s 11(b) == | ||
