POLI 478 Lecture Notes - Lecture 6: Fundamental Justice, Judicial Activism, 2-Step Garage
12 Jun 2018
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Fundamental Justice and Legal Rights (1)
s.7 frequently litigated: first of several legal rights sections (s.7-14) in the Charter.
• Became applied to policy-oriented issues, regulated through criminal justice system
• Charter designed to protect individuals against state power: criminal investigation marks
moment at which this power is exerted against them most forcefully
o Charter rights constrain state authority in criminal justice system: making it as difficult
as possible for Crown to convict someone
▪ SCC generally interprets rights as pro-defendant
• s.7 patiulal oad: eeoe has ight to life, liet, seuit of the peso, ad the ight
ot to e depied theeof, eept aodig to piiples of fudaetal justie
o SCC had to decide: are these principles procedural or substantive?
▪ cf. BC Motor Vehicle Reference, where they leaned towards the latter
The SCC and sexual assault cases
How did SCC develop principles of fundamental justice + how did they affect sexual assault law? Can be
seen in 3 case sequences from the 1990s.
• All 3 cases expanded rights of defendants in sexual assault cases; all 3 legislative sequels
responded to expansion of rights; the first 2 cases responded with judicial review
• Judicial legislative dialogue appears in two sequences, uncertain in third
o Hogg: dialogue occurs when legislature reverses/modifies/avoids judicial decisions, or
when legislature responds to judicial decision?
Context: R v. Stinchcombe (1991) identified previously unstated principle of fundamental justice – the
right to give full answer and defence to criminal charges.
• Could be understood as procedural principle under s.7, supported by s.11(d) right to fair trial
• i.e. SCC indirectly contracting government power by expanding rights
o Justified judicial activism? Protecting the person + using procedural expertise
1) R v. Seaboyer (1991) - C49 – R v. Darrach (2000)
Context
Crime of sexual assault codified in Criminal Code ss.276-277 Paliaet ape
shield poisios.
• Changed substantive definition of crime: made conviction easier
• Procedural elements: certain types of questions/leading evidence excluded –
considered irrelevant + could undermine complainant
o ss.276 prohibited questions re. previous sexual conduct; ss.277
prohibited questions re. sexual reputation of complainant
Seaboyer + Gayme convicted of sexual assault: defence lawyers not allowed to raise
questions suggestig phsial ijuies oulde ee aused ehaiou that was not
with the accused.
• Appeal based on constitutionality of ss.276-277
SCC decision
SCC held for defense (7-2): ss.276 unconstitutional, but ss.277 constitutional.
• Majority (McLachlin): there may be instances when sexual behaviour evidence
is relevant to the case
o ss.276 = unreasonable limit on s.7 right, in certain circumstances
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Bc motor vehicle reference, where they leaned towards the latter. Can be seen in 3 case sequences from the 1990s: all 3 cases expanded rights of defendants in sexual assault cases; all 3 legislative sequels responded to expansion of rights; the first 2 cases responded with judicial review. Protecting the person + using procedural expertise: r v. seaboyer (1991) - c49 r v. darrach (2000) Crime of sexual assault codified in criminal code ss. 276-277 (cid:271)(cid:455) pa(cid:396)lia(cid:373)e(cid:374)t (cid:894)(cid:858)(cid:396)ape shield(cid:859) p(cid:396)o(cid:448)isio(cid:374)s(cid:895): changed substantive definition of crime: made conviction easier, procedural elements: certain types of questions/leading evidence excluded . Context: ss. 276 prohibited questions re. previous sexual conduct; ss. 277 considered irrelevant + could undermine complainant prohibited questions re. sexual reputation of complainant. Seaboyer + gayme convicted of sexual assault: defence lawyers not allowed to raise questions suggesti(cid:374)g ph(cid:455)si(cid:272)al i(cid:374)ju(cid:396)ies (cid:272)ould(cid:859)(cid:448)e (cid:271)ee(cid:374) (cid:272)aused (cid:271)(cid:455) (cid:271)eha(cid:448)iou(cid:396) that was not with the accused: appeal based on constitutionality of ss. 276-277.
