Canadian Charter of Rights and Freedoms - Essay Example

Assignment One By virtue of Section 52 of the Constitution Act 1982, the Constitution is the Supreme law of Canada.(Constitution Act 1982, Section 52(1)) Essentially what this means is that any statute or judgment that is inconsistent with any of the provisions contained in the Constitution Act is void. The court seized of the Clarke’s matter may refer the matter to the Supreme Court of Canada for a hearing on the constitutional challenge provided there is a legal issue. (Quebec Veto Reference [1982] 2 S.C.R 79) In any event, a finding of unconstitutionality by any court can be appealed to the Supreme Court of Canada for a final determination of the lower court’s ruling. The judge seized of the matter agreed that Clarke had a prima facie case in his argument that the Criminal Code under which he was sentenced contravened the Charter of Rights and Freedoms under the Constitution Act. It therefore follows that Clarke’s matter has the necessary legal component to justify a reference on a constitutional challenge. The right to challenge Canadian statutes and laws is founded on the rule of law principle, one of the four pillars of the Constitution. The rule of law mandates that no one is above the law. (Reference re Secession of Quebec [1998]2 SCR 217) The next step for Clarke is to be prepared for legal arguments and an appeal by the crown in the event his arguments succeed. In any case, the judge may also submit the matter to the Supreme Court by way of reference. As a person whose constitutional rights under the Charter are impacted he has the necessary standing to petition the court. The Crown as the agent of the government seeking to enforce the Code that Clarke is challenging is the proper respondent in the matter. At the hearing before the Supreme Court, Clarke will be required to satisfy the Supreme Court that his rights to freedom has been infringed by the Canadian Criminal Code.(R v Oakes [1986]1 SCR 103) In other words Clarke will be required to prove that a right guaranteed by the Constitution Act 1982 has been violated. (Constitution Act 1982, Section 1) On the other hand it is for the Crown to argue that the infringement is justified under Section 1 of the Constitution Act 1982. The standard of proof is on a balance of probabilities. Clarke will be expected to argue that the specific section of the Code is too confining in is application, permitting the imposition of an order that restricts his freedom of movement in a manner inconsistent with the Charter. As argued before the judge at first instance, Clarke will likely submit that the anti-loitering provision are too wide in its application, unduly confining his freedom of movement with the result that he is virtually imprisoned. The consequences of his arrest appears to give effect to a broad definition of loitering. Clarke had been an a restricted area, but it was not clear whether or not he had been loitering in a strict sense of merely passing through. Section 1 of the 1982 guarantees the protections contained in the Charter of Rights and Freedoms. It also sets limitations on those guarantees ensuring that those rights and freedoms are not absolute and can by constrained in a manner consistent with a democratic and free society. To this end Section 1 is also known as the reasonable limitations clause. The onus however, is on the crown to prove that: The act providing the limitations on rights and freedoms under the Constitution Act is in fact prescribed by law; and The limitations are justified in a democratic and free society. Section 1 of the Canadian Charter of Rights and Freedoms reads as follows: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” (Canadian Charter of Rights and Freedoms, Section 1) Under the first leg of Section 1, the Crown will be required to prove that the order commanding that Clarke stay away from certain areas where children might be expected to be gather was legally grounded. To this end the Crown has the benefit of the Criminal Code which authorizes such an order to be made. The Supreme court previously held that if the authority to take action which limits rights and freedoms under the Charter is vague, it will fail the prescribed test. In other words the relevant part of the code will fail: “..where there is no intelligible standard and where the legislation has given a plenary discretion to do whatever seems best in a wide set of circumstances.” (Irwin Toy Ltd. v Quebec (Attorney General) [1989] 1 S.C.R. 927) Assuming that the enabling provision in the criminal code is sufficiently clear to permit a restraining order of the kind made against Clarke the Crown should have no difficulty passing the first part of the Section 1 limitation test. Once the Crown establishes that the Criminal Code authorities the restraints on Clarke’s freedom, the crown under the second leg of Section 1, they will then be required to substantiate the second leg of the Section 1 test. The second leg of Section 1 is more problematic for the Crown in that it must prove on a balance of probabilities that the relevant section under the Criminal Code is a limitation of rights and freedoms as is justified in a free and democratic society. It was previously held by Chief Justice Dickson in R v Big M Drug Mart Ltd [1982] 1 SCR 295 that limitations on Charter rights are required to be motivated by an objective that had sufficient importance. (R v Big M Drug Mart Ltd [1982] 1 SCR 295 ) The test for determining whether or not action taken or an order given is justified in a free and democratic society was expanded on by Dickson in the case of R v Oakes 1 SCR 103 and is commonly referred to as the Oakes test. (R v Oakes [1986] 1 SCR 103) Under the Oakes test the Crown will be required to prove that the limitation of rights under the Charter had a “pressing and substantial objective.” (R v Big M Drug Mart Ltd [1982] 1 SCR 295) If the limitation has an objective that is not discriminatory in nature it will typically pass the objective purpose under the Oakes test. (Vriend v Alberta[1998] 1 SCR 493) It is entirely possible that the Crown will argue that the objective purpose of the limitation is to prevent recidivism and to protect children from the risk of harm associated with sexual offenders. To this end the Crown will likely argue that the limitation is not discriminatory since it does not target a specific gender, class or race and applies to all persons previously convicted of crimes against children regardless of age, gender, race or class. The second part of the Oakes test is related to the objective purpose test. This part of the Oakes test requires that the Crown prove that the limitation measure is proportionate. To this end the Crown must prove that the right restrained is proportionate to the harm it seeks to prevent or the objective purpose of the measure. It is likely that the Crown would argue that children a particularly vulnerable to strangers, particularly in public places. Secondly, the Crown would likely produce evidence that child predators typically target children in places like those contained in the measures taken against Clarke. In further support of the proportionality test the Crown may also produce evidence that adults with antecedents in crimes against children will typically re-offend if the opportunity presents itself. The proportionality test is typically successful if the Crown can prove a rational connection. For example in R v Morgentaler [1988] 1 SCR 30, anti abortion laws failed because it violated health rights and could not be rationally connected to its objective which was to protect the health of the pregnant woman and the fetus. (R v Morgentaler [1988] 1 SCR 30) In Clarke’s case a rational connection can be made between enjoining sexual offenders from public places where children are likely to be gathered. The measure is designed to protect children from the risk of sexual or criminal victimization which is arguably heightened in circumstances where a sexual or child offender has access to children. Clarke’s strongest argument however is that the particular measure is vague and this comes under the proportionality requirements within the Oakes test. The onus is on the Crown to prove that the measure meets the minimal impairment ambit of the proportionality test. This test is the most important part of the Oakes test and the most difficult to prove. (Hogg, 2003, 809-810) The question is typically whether the objective could be met by a less intrusive measure. To this end an absolute or widely intrusive ban would fail the minimal impairment test. (R v Edwards Books and Art Ltd.[1986] 2 SCR 713) It can be argued by the Crown that the measure is not absolute and excessive in that it only targets a specific class of offenders rather than all offenders. It is based on proof that persons previously convicted of crimes against children are likely to re-offend and that likelihood is increased when the offender is exposed to children. The only other method of safeguarding against this likelihood would be to commit the offender to surveillance and expose the children to extensive security. Such measures would violate Charter rights of both the children and the offender in a far more sever manner than the current measures. It is likely that the court will find that the measure restraining Clarke’s rights under the Charter passes the prescribed test in that it is authorised by law. In other words the legislatures had the requisite authority to pass the act under the rule of law which requires that acts be implemented under Constitutional powers. The court will also likely find that the measures pass the Oakes test in that it is proportional to its objective. However, if the court is not satisfied with the evidence that persons with previous convictions of crimes against children are likely to re-offend and that children in public parks and playgrounds are particularly vulnerable to child offenders, Clarke’s constitutional challenge will succeed. More importantly, if the court finds that the measure is proportionate, but is not satisfied that it is clear or could meet its objective in a less intrusive manner Clarke’s constitutional challenge will succeed. If Clarke’s constitutional challenge is successful the court will likely make an order declaring the enabling section of the Criminal Code invalid and impose an order for suspension of that part of the Code giving Parliament an opportunity to review the provision. Bibliography Constitution Act 1982 Hogg, Peter. (2003) Constitutional Law of Canada. Scarborough, Ontario: Thomson Canada Ltd. Irwin Toy Ltd. v Quebec (Attorney General) [1989] 1 S.C.R. 927 Quebec Veto Reference [1982] 2 S.C.R 79 Reference re Secession of Quebec [1998]2 SCR 217 R v Big M Drug Mart Ltd [1982] 1 SCR 295 R v Edwards Books and Art Ltd.[1986] 2 SCR 713 R v Morgentaler [1988] 1 SCR 30 R v Oakes [1986]1 SCR 103 Vriend v Alberta[1998] 1 SCR 493 Assignment Two Trociuk v.British Columbia (A.G.), [2003] 1 S.C.R.835. Issues The primary issues in Trociuk v.British Columbia (A.G.), [2003] 1 S.C.R.835 was whether or not the provisions contained in the Vital Statistic Act RSBC 1996 Sections 3(1)(b), 3(6)(b) and 4(1)(a) infringed Sections 1 and 15(1) of the Canadian Charter of Rights and Freedoms. Section 15 of the Canadian Charter of Rights provides for equal treatment and protection of all individuals regardless of gender, class, race and national or ethnic origin. (Canadian Charter of Rights and Freedoms, Section 15(1)) Section 1 permits derogation from the provisions of Section 15 provided those limitations are justified in a free and democratic society. (Canadian Charter of Rights and Freedoms, Section 15(1)) Section 3(1)(b) of the Vital Statistics Act 1996 provides for the mother of a child to register that child in British Columbia within 30 days of the child’s birth if the father is either “incapable” or is “unacknowledged by or unknown to the mother.” (Vital Statistics Act 1996, Section 3(1)(b)) Section 4(1)(a) of the Vital Statistics Act goes on to provide that the child’s surname “must be registered” as the surname chosen by the registering parent. (Vital Statistics Act 1996, Section 4(1)) Section 3(6)(b) permits registration rectification by the child’s mother “if the father is incapable or is unacknowledged by or unknown to the mother.” (Vital Statistics Act 1996, Section 3(6)(b)) The main question was whether or those provisions of the Vital Statistics Act 1996 violated Section 15(1) of the Charter of Rights and Freedoms. If the provisions contained in the Vital Statistics Act 1996 did violate Section 15(1) of the Charter of Rights and Freedoms, a second question followed. Were those violations capable of justification under Section 1 of the Charter of Rights and Freddoms. Background Facts The appellant father and the respondent mother parented triplets. Following the birth of the triplets the mother filled out the birth registration records and reflected the fact that the father was “unacknowledged” and did not use his surname for the children. The father was denied the opportunity to amend the birth records under Section 3(6)(b) of the Vital Statistics Act 1996 and therefore his relationship to the triplets were not a matter of public record. Upon suit to the British Colombia Supreme Court the father’s application for a declaration that the relevant sections of the Vital Statistics Act 1996 contravened Section 15(1) of the Canadian Charter of Rights and Freedoms, the father’s application was denied. On appeal to the Court of Appeal the decision of the British Colombia Supreme Court was affirmed. The father then appealed the matter to Supreme Court of Canada. The Majority’s Opinion The majority opinion found that Sections 3(1)(b), 3(6)(b) and 4(1)(a) of the Vital Statistics Act 1996 infringed Sections 1 and 15(1) of the Canadian Charter of Rights and Freedoms. In simple terms the court found that each of the provisions amounted to “discrimination on the basis of sex.” (Trociuk v.British Columbia (A.G.), [2003] 1 S.C.R.835) This was so because the provisions cited served to: “...draw a distinction on an enumerated ground, and the claimant was subject to differential treatment on the basis of that ground.” (Trociuk v.British Columbia (A.G.), [2003] 1 S.C.R.835) Having excluded the father from the registration process on the basis of his having been “unacknowledged” by the mother represented differential treatment on the basis of sex. As such the father was vulnerable to what amounts to no more than “arbitrary exclusion of his particulars” from the birth registration records of his own children and could not participate in the surname selection process. The court went on to add, that the fact that the Vital Statistics Act 1996 made no provision for redress, only heightened the discrimination. The majority noted that: “Arbitrary exclusion from these means of participation negatively effects an interest that is significant to a father.” (Trociuk v.British Columbia (A.G.), [2003] 1 S.C.R.835) Moreover, there is no sound basis for permitting the mother to “unacknowledge” the father. It was no more than an arbitrary method of permitting exclusion from compiling and participating in the permanent birth record of the child. As such it served no “legitimate interests nor the best interest of the child”. (Trociuk v.British Columbia (A.G.), [2003] 1 S.C.R.835) In order to determine whether or not the provisions complained of, are justified under Section 1of the Canadian Charter of Rights and Freedoms the court would consider the significance of the purpose of the provision and whether or not there are other alternatives to achieving the important purpose of the act. In other words the court would determine whether of not the legislative measure’s purpose could be achieved without compromising protected rights within the Canadian Charter of Rights and Freedoms. The court, having determined that the 1996 Act did not serve a legitimate interest, considered the significance of Sections 3(1)(b), 3(6)(b) and 4(1)(a) of the Vital Statistics Act 1996. The court determined that the Act intended to facilitate the “accurate and prompt recording of births” and such an objective is “sufficiently important to warrant overriding Charter rights.” (Trociuk v.British Columbia (A.G.), [2003] 1 S.C.R.835) However, the court went on to rule that these objectives could be achieved by: “means that do not negatively affect unjustifiably unacknowledged fathers’ interests.” (Trociuk v.British Columbia (A.G.), [2003] 1 S.C.R.835) Conclusion The court’s decision reflects the significance of gender equality in today’s world. Obviously the presumption that the mother is was the child’s natural parent has been eroded by today’s egalitarian family arrangements where both parents share responsibilities for the welfare of the child and providing income for the maintenance of the family. The compilation of birth records as provided for in the Vital Statistics Act 1996 reflected an age-old concept that placed the welfare of the child with the mother. This old tenet has been replaced by current trends in equality and equity among genders and transcends to parents and parental rights and obligations. It is these concepts of equity and equality that influenced the judiciary’s decision in Trociuk v.British Columbia (A.G.), [2003] 1 S.C.R.835. Bibliography Trociuk v.British Columbia (A.G.), [2003] 1 S.C.R.835 Canadian Charter of Rights and Freedoms Vital Statistic Act RSBC 1996 Read More