Charter Remedies: 24(1) & (2). Join The Vespa Fishing Team.
Once a litigant has established that their Charter of Rights and Freedoms' rights have been violated what remedies are available?
Parliament has provided two sections in the Charter to address this: 24(1) to guarantee the enforcement of enumerated rights and freedoms; and 24(2) to exclude evidence that would bring the administration of justice into disrepute.
With any law the place to start is with the wording of the section.
It is "presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose": of Tower v. M.N.R., [2004] 1 F.C. 183 (F.C.A.) per MALONE J.A. at 15 - 16.
Enforcement
" 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."
The language of 24(1) is expansive and remedies fashioned under it cannot be distilled into a formula for general application: R. v. Mills, [1986] 1 S.C.R. 863.
If an applicant is challenging the constitutionality of the legislation itself, then recourse to s.24 is unnecessary:
The person claiming that their Charter rights have been infringed must apply to "court of competent jurisdiction" and claim the relief they seek. Normally, the forum will be the tribunal that has jurisdiction over the person: R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575; the subject matter and have the authority to make the order sought: R. v. Mills, [1986] 1 S.C.R. 863; but it may not actually be a court, per se: Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504.
Generally, in order to seek a remedy an individual must have "standing," which is to say, that it is their Charter rights which have been infringed: R. v. Edwards, [1996] 1 S.C.R. 128; but there are exceptions: R. v. Thompson, [1990] 2 S.C.R. 1111.
Typically the alleged infringement will have been in the past: United States of America v. Kwok, [2001] 1 S.C.R. 532; but in rare circumstances the infringement may be prospective: Phillips v. Nova Scotia (Westray Mine Inquiry), [1995] 2 S.C.R. 97.
The burden of proving - on a balance of probabilities - that the infringement of their Charter rights has occurred is with the applicant: R. v. Collins, [1987] 1 S.C.R. 265.
Once the applicant has discharged their onus and established the breach it will be for the court to produce the appropriate remedy. Courts act in a manner that is responsive to the protected right and they will fashion a remedy that is effective in remedying the Charter violation: Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3.
Charter 24(1) is not used to exclude evidence because of an infringed or denied right or freedom, that is the purpose of Charter 24(2); R. v. Therens, [1985] 1 S.C.R. 613.
Exclusion Of Evidence
" 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. "
The Supreme Court of Canada established three (3) criteria for consideration by a court, under 24(2), in deciding whether to exclude evidence: R. v. Collins, [1987] 1 S.C.R. 265.
First, will the admission of the evidence affect the fairness of the trial? If yes, then to allow the evidence to be used would tend to bring the administration of the evidence into disrepute and so it must be excluded, without considering other factors, such as whether the evidence is conscriptive or non-conscriptive: R. v. Stillman, [1997] 1 S.C.R. 607.
Second, how serious is the Charter violation? In assessing this, the court will consider factors such as bad faith, was it inadvertent or of a merely technical nature, or whether it was deliberate, willful or flagrant, was urgency a factor, whether there were alternative means of obtaining the evidence: R. v. Therens (1985), 18 C.C.C. (3d) 481 at 76 (S.C.C.); if the officer(s) failed to follow procedures: R. v. Law (2002), 160 C.C.C. (3d) 449 at 38 (S.C.C.); and R. v. Caslake, [1998] 1 S.C.R. at 34.
Third, the court must balance the interests of truth with the integrity of the judicial system: R. v. Simmons, [1988] 2 S.C.R. 495, at p. 534; or put differently, "whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth seeking goal of the criminal trial": R. v. Kitaitchik, (2002), 161 O.A.C. 169, per Doherty J.A. at 47, as see R. v. Buhay, [2003] 1 S.C.R. 631.
In essence, unconstitutionally obtained evidence will not often affect the fairness of the trial, but if admitting it would be to offer judicial condonation of unacceptable police or prosecutorial conduct then it will be excluded: Collins, above at 31.
In R. v. Clayton and Farmer, released March 18, 2005, as Docket №s C37990-C36722 (Ont. C.A.) per Doherty, J.A. (at 95) introduced another criteria, whether the violation was a result of poorly trained and supervised officers, amounting to an, "institutional failure to equip officers with the training necessary to perform their duties within the strictures of the Charter."
Willful, flagrant or deliberate breaches of an accused's Charter rights, in order to obtain incriminating evidence, would usually tend to favour exclusion of the evidence: see R. v. Genest, [1989] 1 S.C.R. 59; R. v. Manninen, [1987] 1 S.C.R. 1233; and R. v. Greffe, [1990] 1 S.C.R. 755.
Conclusion
Most Charter applications are made in criminal cases; for the simple reason that although constitutional law tends to be slow, expensive, slow, complex and prone to appeals, an adverse result for an accused is even worse than the litigation.
All such cases are fact driven; the facts are not a mere technicality; rather, they are essential to a proper consideration of Charter issues: R. v. Bain, [1992] 1 S.C.R. 91 per Gonthier, J. (dissenting).
Since no Charter decisions can be made in a factual vacuum: Hy and Zel's Inc. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; generalities in such matters are inherently perilous; however, by applying the principles established by case law, to any actual case, lawyers are able to assess the results - on the balance of probabilities.
Staff Writer
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Article Source: http://EzineArticles.com/
High fuel prices got you down?
Imagine how most of us feel in the recreational fishing world.
Let me explain.
Here we are rounding into September, the time of year that all true "sport fishermen" look forward to. The weather is changing, and most summer crowds have gone home, leaving the rivers and lakes uncrowded and filled with frisky hungry fish readying themselves for the fall spawn and feedfest that takes place in fall.
Most of us are not lucky enough to have a river or lake out our back door, so that means traveling to our favorite fishing spots is mandatory. Two hundred miles or better is nothing when it comes to our passion.
Most fishermen -and outdoor types in general--are usually heading for the great outdoors hauling their gear in SUVs , trucks or campers/trailers.
Not exactly what you would consider "economy" cars.
I can still remember the conversation I had with Ranger Kurt about three years ago, when I convinced him to purchase an old Ford Diesel f350 in place of his trusty Toyota fishing rig.
He would love the extra room, and heck- diesel was about a dime cheaper than regular to boot!!
He like I, always seemed to just fill the back of his pick-up with just about every piece of sporting good equipment that languished
in his garage.On the off chance we might feel the urge to break into a spirited game of Badminton, shoot clay pigeons, ride mountain bikes, or take an impromptu twenty mile hike into the high desert, we were ready!!So, as our state of readiness has increased with age, our truck beds have shrunk.
Much like our spines and uhhhh hummm... other things!!
But I digress...
Anyway, as I ran out of room and had to spend thirty minutes each time loading and unloading basketballs,hockey sticks and barbecues-- just to find my waders--I decided a bigger rig was in order.
Didn't seem like a big deal at the time, back when diesel fuel was at about $1.29.
....$3.19 this morning!!
Ranger Kurt is not talking to me anymore.
I have decided to make some drastic changes in my life--at least my fishing life-- and the next time you see me.... I will be driving a Vespa.
That's right, one of those tiny Italian jobs that sound like an underpowered weed wacker.
I realize this will make it impossible to carry all the "necessary" gear I need to be ready for "impulse recreation"-- but what's a guy to do?
From now on, I will only carry the essentials--fishing rod, fly box,perhaps a sleeping bag--and wear all my necessary clothing, including waders,vest,wading boots and possibly a change of underwear. Everything else stays home!
I know this sounds drastic, but if I am to continue my passion for fishing --this may be the only way to make it affordable to do so.
I also know that the visual image of a rugged outdoorsman on the back of a Mo-ped is not exactly the vision Madison Avenue would like to sell to Orvis or Jeep Cherokee and is more akin to the image of Jim Carrey in "Dumb and Dumber"--but I don't care!!
Look out Deschutes River Steelhead... we're LEAN, MEAN, and riding WHINY MACHINES...
Whad'ya think?Kinda catchy, huh?
So, until the price of crude drops back down to a reasonable level, which may be never, you will recognize me as the guy out on Highway 97 wearing about fourteen layers of clothing and a pair of Hodgeman neoprene waders.
My poor Ford F250? Well, I suppose it will become an expensive dog house for my Yellow Lab-because unless I have AAA tow my vehicle around town--I can't afford to drive it anymore.
I sure hope they don't catch on to me!!
Oh-- and Ranger Kurt--give me a call, there's room on the back of the Vespa for you...
A.J. Klott
Author, writer of fishing humor,and "fly tack" peddler.A.J. writes about the people,characters and modern day events that surround the fishing world. His first book is due out in December of 2005. If you need a laugh or a fun gift, visit his website at: http://www.twoguyswithflys.com
Article Source: http://EzineArticles.com/
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