Legal Rights I Mid-term Exam Paper PDF, October 16, 2024

Legal Rights I Ryan Koo [email protected] Mid-term – October 16, 2024 Format 2-hour, open-book exam Requires a laptop/tablet Option #1: Answer all 10 short-answer questions (each worth 5 marks and consider allocating 12 minutes per question, making it 50 marks i...

Legal Rights I Ryan Koo [email protected] Mid-term – October 16, 2024 Format 2-hour, open-book exam Requires a laptop/tablet Option #1: Answer all 10 short-answer questions (each worth 5 marks and consider allocating 12 minutes per question, making it 50 marks in total) and DO NOT answer a fact-pattern question Option #2: Answer only 5 short-answer questions of your choice (25 total marks) and DO ANSWER a fact-pattern question (25 marks; 1 hour) = 50 marks in total For Option #2 - if you choose to answer more than 5, I will consider the best 5 Zoom Q&A session – when do you want it? Fact-pattern question Section 7 of the Charter “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” Recent issues UR Pride director says pronoun policy change is 'undeniable infringement' on human rights – YouTube The Government of Saskatchewan as represented by the Minister of Education introduced a policy entitled “Use of Preferred First Name and Pronouns by Students” to be followed in the upcoming school year by all of the school divisions in the province Given the sensitivity of gender identity disclosure, when a student requests that their preferred name, gender identity, and/or gender expression be used, parental/guardian consent will be required for students under the age of 16 The applicants sought a declaration that the policy limited the rights of gender diverse students not to be deprived of security of the person except in accordance with the principles of fundamental justice “If the policy remains in effect, it will cause devastating and irreparable harm to gender diverse students under 16 years old who do not feel safe coming out at home. These students will face an impossible choice: be outed to their parents under the policy or remain closeted at school” Discussion Question #10: What are your thoughts on the so-called pronoun policy? Does it amount to bringing a Charter challenge against governments? Purpose Section 7 of the Charter requires that laws or government actions that interfere with life, liberty and security of the person conform to the principles of fundamental justice — the basic principles that underlie our notions of justice and fair process General Considerations The term “everyone” does not include corporations. It includes only human beings Non-Canadians physically present in Canada will benefit from the protection of s. 7 Section 7 is triggered where the law or government action results in a deprivation of life, liberty or security of the person. Where the deprivation is not in accordance with the principles of fundamental justice, there will be a violation of s. 7 There is a relatively limited scope for justifying violations of s. 7 under s. 1 of the Charter General Considerations The term “everyone” does not include corporations. It includes only human beings Non-Canadians physically present in Canada will benefit from the protection of s. 7 Section 7 is triggered where the law or government action results in a deprivation of life, liberty or security of the person. Where the deprivation is not in accordance with the principles of fundamental justice, there will be a violation of s. 7 There is a relatively limited scope for justifying violations of s. 7 under s. 1 of the Charter Analytical Framework The applicable framework is a three-part test: Is there a real or imminent deprivation of life, liberty or security of the person, or some combination of these interests? What is the relevant principle(s) of fundamental justice? Is the deprivation that has occurred in accordance with the relevant principle(s) of fundamental justice? There is no violation of s. 7 if there is no deprivation of life, liberty or security of the person. Demonstrating a deprivation of life, liberty or security of the person is only the first step There is no violation of s. 7 if the deprivation of life, liberty or security of the person is in accordance with the principle of fundamental justice. Life, Liberty and Security of the Person Right to life: interpreted literally: the right to life is engaged where the law or government action imposes death or an increased risk of death, either directly or indirectly the right to life protects against government actions that increase specific risks to life Life, Liberty and Security of the Person Right to liberty: The right to liberty has at least two aspects: 1) physical and 2) psychological “Physical” aspect is directed to the protection of persons in a physical sense and is engaged when there is physical restraint. Implicated by: imprisonment (Vaillancourt) arrest (Fleming) custodial or non-custodial detention of mentally disordered accused (Swain) Deportation to substantial risk of torture (Suresh; Charkaoui) Extradition from Canada (Kindler) Life, Liberty and Security of the Person Right to liberty: “psychological” aspect is directed to the protection of personal autonomy involving “inherently private choices” that go to the “core of what it means to enjoy individual dignity and independence” (Godbout) implicated by: the right to refuse medical treatment making decisions concerning bodily integrity and other “reasonable medical choices” without threat of criminal prosecution (Carter) not implicated by: making lifestyle choices such as the smoking of marihuana (Caine) requiring employees to be on standby duty, and therefore making less available to their families for several weeks a year (Association of Justice Counsel) Life, Liberty and Security of the Person Right to security: interpreted broadly protects the right to control his or her own physical and psychological integrity (Morgentaler; Carter) includes freedom from the threat of physical punishment or maltreatment (Singh) could be engaged by government action that prevents people engaged in risky but legal activity (Bedford) Principles of Fundamental Justice – Test Demonstrating a deprivation of life, liberty or security of the person is only the first step To be considered a principle of fundamental justice, a rule or principle must be: 1. a legal principle; 2. about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate; and 3. identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. Principles of Fundamental Justice – Examples The principles of fundamental justice include the principles against arbitrariness, overbreadth and gross disproportionality It is a principle of fundamental justice that young persons are entitled, on sentencing, to a presumption of diminished moral culpability (D.B.) The independence and impartiality of the judiciary is a principle of fundamental justice (Charkaoui) It is a principle of fundamental justice that a person should not face the penalty or stigma of criminal liability in relation to conduct that was physically or morally involuntary (Ruzic) The professional secrecy of lawyers and notaries is a principle of fundamental justice (Lavallee) Principles of Fundamental Justice – Our Focus Arbitrariness: deprivations of a protected interest that bear no relation to the law’s purpose Overbreadth: laws that are so broad in scope that it can deprive a protected interest in circumstances where doing so bears no relation to the legislative purpose Gross disproportionality: laws that may be rationally connected to the legislative purpose but whose effects are, in terms of their severity, totally out of sync with that objective R. v. Morgantaler R. v. Morgantaler, 1 SCR 30 Section 251 of the Criminal Code required a pregnant woman who wanted an abortion to apply to a “therapeutic abortion committee” of an accredited or approved hospital. If the committee did not approve, the women was left with a difficult choice: either to carry an undesired pregnancy to term or to commit a crime to obtain abortion Three doctors, including Dr. Morgentaler, set up a clinic to perform abortions for women who did not have the necessary approval and the doctors were criminally charged. They argued that s. 251 of the Criminal Code violated a woman’s right to security of the person. R. v. Morgantaler First Inquiry: “Section 251 clearly interferes with a woman's physical and bodily integrity” “Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and thus an infringement of security of the person” “A second breach of the right to security of the person occurs independently as a result of the delay in obtaining therapeutic abortions caused by the mandatory procedures of s. 251 which results in a higher probability of complications and greater risk. The harm to the psychological integrity of women seeking abortions was also clearly established” R. v. Morgantaler Second Inquiry: Section 251 was not in accordance with the principles of fundamental justice because it was manifestly unfair: “The word ‘health’ is vague and no adequate guidelines have been established for therapeutic abortion committees. It is typically impossible for women to know in advance what standard of health will be applied by any given committee” “The requirement of s. 251(4) that at least four physicians be available at that hospital to authorize and to perform an abortion in practice makes abortions unavailable in many hospitals. The restrictions attaching to the term ‘accredited’ automatically disqualifies many Canadian hospitals from undertaking therapeutic abortions. The provincial approval of a hospital for the purpose of performing therapeutic abortions further restricts the number of hospitals offering this procedure” The provision was not justified under s. 1 of the Charter Canada v. Bedford Canada v. Bedford, 3 SCR 1101 The three individuals, Terri-Jean Bedford, Amy Lebovitch and Valerie Scott, argued that ss. 210 (bawdy- house), 212(1)(j) (living off the profits of prostitution) and 213(1)(c) (communicating) of the Criminal Code were unconstitutional because they violated sex workers’ rights under the Charter, including their right to life, liberty and security of person under s. 7 of the Charter Canada v. Bedford Pre-Bedford decision Criminal Code prohibitions: Section 210 – “Bawdy-house law” – This prohibited the keeping of a “common bawdy-house.” A common bawdy-house is a place that is kept, occupied or resorted to by one or more persons for the purpose of prostitution or the practice of acts of indecency. A person who uses his or her own residence or any other fixed location as a place in which to exchange his or her sexual services for money could therefore be charged and is liable to imprisonment for a term of up to two years Paragraph 212(1)(j) – “living on the avails of prostitution” – prohibits procuring and carries severe penalties, with potential imprisonment of up to 14 years for offences relating to persons under the age of 18 years. The provision made it a crime for anyone to live off the profits made from prostitution, which could include security guards, drivers, and etc. Paragraph 213(1)(c) – “Communicating law” –This made it illegal to stop a motor vehicle or communicate with another person in a public place for the purposes of engaging in prostititution or of obtaining the sexual services of a prostitute. Public place included streets, parks, bars, and even inside cars. Anyone who commits such an offence is liable to imprisonment for up to six months or a fine of $5,000 or both. This is the prostitution-related law most often enforced by police Canada v. Bedford All of the impugned provisions negatively impact the security of the person: Section 210 – “Bawdy-house law” – the prohibition prevents prostitutes from working in a fixed indoor location, which would be safer than working on the streets or meeting clients at different locations, especially given the current prohibition on hiring drivers or security guards. This, in turn, prevents prostitutes from having a regular clientele and from setting up indoor safeguards like receptionists, assistants, bodyguards and audio room monitoring, which would reduce risks Paragraph 212(1)(j) – “living on the avails of prostitution” – the prohibition prevents a prostitute from hiring bodyguards, drivers and receptionists…by denying prostitutes access to these security-enhancing safeguards, the law prevented them from taking steps to reduce the risks they face and negatively impacted their security of the person Paragraph 213(1)(c) – “Communicating law” – Face-to-face communication is an ‘essential tool’ in enhancing street prostitutes’ safety. Such communication, which the law prohibits, allows prostitutes to screen prospective clients for intoxication or propensity to violence, which can reduce the risks they face. This conclusion, based on the evidence before her, sufficed to engage security of the person under s. 7. The communicating law has had the effect of displacing prostitutes from familiar areas, where they may be supported by friends and regular customers, to more isolated areas, thereby making them more vulnerable Canada v. Bedford The deprivation of her security of the person is not in accordance with the principles of fundamental justice: Section 210 – “Bawdy-house law” – is grossly disproportionate relative to its objective (preventing public nuisance) because it prevents prostitutes from moving indoors as a basic safety precaution Paragraph 212(1)(j) – “living on the avails of prostitution” – is overbroad because it fails to distinguish between exploitative (e.g., pimps and johns) and non-exploitative relationships (e.g., drivers and bodyguards) Paragraph 213(1)(c) – “Communicating law” – is grossly disproportionate relative to its objective (preventing public nuisance) because it prevents prostitutes from effectively screening customers The provisions were not justified under s. 1 of the Charter