The Confessions Rule and the Charter

2010 ◽  
Vol 54 (3) ◽  
pp. 517-546 ◽  
Author(s):  
Hamish Stewart
Keyword(s):  
The Other ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
Constitutional Principle ◽  
Trial Judges ◽  
Right To Silence ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The One ◽  
The Right

Abstract The confessions rule—the requirement that the Crown prove the voluntariness of the accused’s statements to persons in authority—is a well-established rule of criminal evidence and is closely connected with the constitutional principle against self-incrimination that it structures. The confessions rule is thus a natural candidate for recognition as a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms. However, there are two distinct routes by which the confessions rule might be constitutionalized. Under the “rule of evidence” approach, the confessions rule would be recognized as an aspect of the accused’s constitutional right to a fair trial. Under the “rights violation” approach, the conduct of the state in obtaining an involuntary statement would be treated as a violation of the accused’s constitutional rights. In R. v. Singh, despite having previously adopted the “rule of evidence” approach, the Supreme Court of Canada applied the “rights violation” approach and linked the confessions rule very closely to the constitutional right to silence. In so doing, the Court conflated the distinct protections offered by the right to silence on the one hand and the confessions rule on the other, particularly when Singh is read in light of other recent cases that appear to weaken the confessions rule. Fortunately, the Court’s recent decisions concerning the confessions rule may also be read as instances of appellate deference to trial judges’ factual findings on voir dires. Thus, they leave room for the recognition that neither the right to silence nor the confessions rule is reducible to the other, and that each has a distinct role to play: the right to silence protects the accused’s decision to speak at all, while the confessions rule concerns the accused’s motivations for speaking as he or she did.

scholarly journals Problems of implementation of constitutional rights and freedoms of man and citizen in the context of COVID-19

2021 ◽  
Vol 2021 (1) ◽  
pp. 42-53
Author(s):  
Pavel Astafichev
Keyword(s):  
Cultural Values ◽  
Separation Of Powers ◽  
Legal Regulation ◽  
Point Of View ◽  
Constitutional Rights ◽  
Personal Privacy ◽  
Education Access ◽  
Constitutional Principle ◽  
Constitutional Right ◽  
The Right

The article is devoted to the study of a range of problems concerning the implementation of constitutional human rights and freedoms in the context of the threat of the spread of a new coronavirus infection. The author states that from the point of view of the implementation of the institution of constitutional rights and freedoms of man and citizen, the legal regulation pattern was likely to be the strengthening of guarantee of the constitutional right to the protection of life and health, in part, to the detriment of other constitutional rights and freedoms, first of all – the right to freedom of movement, personal privacy, work, freedom of individual enterprise, right to education, access to arts, culture and cultural values and use of cultural establishments. In case of COVID-19, preference was forced upon de facto federalism, which implies a reasonable decentralization of the subjects of jurisdiction and powers, vertical sharing of powers to guarantee the constitutional principle of separation of powers. The article proves that the executive power has the right to plan and organize sanitary and anti-epidemiological, preventive and even restrictive measures, but it cannot limit the constitutional rights and freedoms of citizens bypassing the will of the representation of the people in a democratic society. In extremis, when circumstances require an immediate solution, it is possible only for a very short time, used by a representative body to fully discuss and make a proper decision.

scholarly journals The Devil’s in the Details: Evaluating the One Person, One Vote Principle in American Politics

2014 ◽  
Vol 2 (1) ◽  
pp. 4-31 ◽  
Author(s):  
Jeffrey W. Ladewig ◽  
Seth C. McKee
Keyword(s):  
Supreme Court ◽  
Total Population ◽  
Congressional Elections ◽  
Literal Interpretation ◽  
Constitutional Principle ◽  
Eligible Population ◽  
The Supreme Court ◽  
Voting Age ◽  
The One ◽  
The Right

Ever since the Supreme Court instituted the one person, one vote principle in congressional elections based on its decision in <em>Wesberry v. Sanders</em> (1964), intrastate deviations from equal district populations have become smaller and smaller after each decennial reapportionment. Relying on equal total population as the standard to meet the Court’s principle, though, has raised some constitutional and practical questions stemming from, most basically, not every person has the right to vote. Specifically, there is considerable deviation between the current redistricting practices and a literal interpretation of this constitutional principle. This study systematically analyzes the differences between districts’ total populations and their voting age populations (VAPs). Further, we consider how congressional reapportionments since 1972 would change if, instead of states’ total populations, the standard for reapportioning seats were based on the VAP or the voting eligible population (VEP). Overall, the results indicate that the debate surrounding the appropriate apportionment and redistricting standard is not just normative, it also has notable practical consequences.

Krąg rodziców i dzieci uprawnionych do posiadania karty dużej rodziny a konstytucyjna zasada równości wobec prawa

2015 ◽  
pp. 137-153
Author(s):  
Filip Dziedzic
Keyword(s):  
Large Family ◽  
Time Limit ◽  
The Other ◽  
Constitutional Principle ◽  
Legal Situation ◽  
The Family ◽  
The Subject ◽  
Large Families ◽  
The One ◽  
The Right

The subject of the article is the justification of the thesis that the differentiation of the legal situation of parents on the basis of the Act on the Large Family Card, who have established a family with at least three children violates the constitutional principle of equality before the law. On the one hand some parents are entitled to use the card without any time limit, and on the other hand there is a group of parents who also have large families, but are totally deprived of the right. According to the author of the article, the diversity does not represent any constitutionally protected value and the discrimination occurs due to the unlimited duration of the right to own the Card by eligible parents. The result of the above, as well as the fourth (another) child’s right to the Card depending on holding the Card by the parent, is discriminatory for the children born as the fourth (next) child in the family. The article is also an attempt to answer the question which way would be the best to remove the above-mentioned discrimination thus making it most coherent with the objective and content of the analyzed regulation.

Canons of Evasion in Constitutional Criminal Law

2017 ◽  
Author(s):  
Sharon Dolovich
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Judicial Review ◽  
The State ◽  
The Other ◽  
State Action ◽  
The Supreme Court ◽  
The Face ◽  
The One ◽  
The Right

In this chapter, Sharon Dolovich argues that the Supreme Court deploys three “canons of evasion” that undermine core constitutional principles: deference, presumption, and question substitution. The chapter shows how the Court on the one hand affirms basic constitutional principles—such as the right to counsel or the right against cruel and unusual punishment—that courts are to enforce against the state for the protection of individual penal subjects. Yet on the other hand, the doctrinal maneuvers of deference, presumption, and substitute question encourage judges in individual cases to affirm the constitutionality of state action even in the face of seemingly egregious facts. As a result, judicial review delivers almost automatic and uncritical validation of whatever state action produced the challenged conviction, sentence, or punishment. Dolovich identifies troubling questions raised by pervasive use of these canons for the legitimacy of the state’s penal power.

scholarly journals FRACKING: AN ENERGY DREAM COME TRUE OR AN ENVIRONMENTAL NIGHTMARE?

Obiter ◽  
2015 ◽  
Vol 36 (1) ◽  
Author(s):  
Henry Lerm
Keyword(s):  
Hydraulic Fracturing ◽  
Social Development ◽  
The Other ◽  
Constitutional Rights ◽  
Healthy Environment ◽  
Other Hand ◽  
To Come ◽  
The One ◽  
The Right

This article investigates the judicial approach the courts are likely to take when they are asked to decide whether hydraulic fracturing, otherwise known as “fracking”, is an acceptable technique or not. The main focus of this article is to investigate whether the legislation put in place is consistent with the constitutional provisions aimed at protecting, on the one hand, the right to a healthy environment, health and life, and on the other hand, the right to promoting justifiable economic and social development. What will be considered is where these rights are likely to come into conflict with each other and how the courts are likely to deal with the issue. Prefacing this discussion is a brief investigation into the nature of fracking; the legislation that will govern the process and the constitutional rights likely to be effected by the technique.

scholarly journals Waiver of a Counsel (for the Defense) in a Criminal Procedure

2021 ◽  
Vol 1 ◽  
pp. 29-32
Author(s):  
Vladimir D. Postanyuk ◽  
Keyword(s):  
Criminal Procedure ◽  
The Other ◽  
Specific Time ◽  
Criminal Proceedings ◽  
Relevant Article ◽  
Procedure Code ◽  
Complete Rejection ◽  
Constitutional Right ◽  
The One ◽  
The Right

Provision to the suspect and defendant’s constitutional right to protection is an essential principle of criminal proceedings (article 16 of the code). In the code there are some articles that illuminate the mechanism of participation of the defender in criminal proceedings, this includes: defining the range of persons who can be advocates, fixing specific time, the participation of counsel in the case, an order of protection and other issues. But it is the question of the implementation of the right of the accused (suspect) to refuse to defend and participate in the case of a lawyer that is of fundamental practical and legal importance. There are two possibilities that should be distinguished: on the one hand, complete rejection of the defender in general, and on the other hand, rejection of a specific defender. The refusal of a lawyer in general is provided with a number of restrictions, which are listed in the relevant article of the criminal procedure code. in all other cases, the rule applies that it is possible to refuse to help a lawyer at any time during the criminal proceedings. This article is devoted to the consideration of these issues.

scholarly journals L'égalité selon la Cour suprême

2005 ◽  
Vol 18 (4) ◽  
pp. 691-710
Author(s):  
Denis Bourque
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
The Other ◽  
Bill Of Rights ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The One ◽  
The Right

Clause 1(b) of the Canadian Bill of Rights specifies that every person has the right to equality before the law. The purpose of this article is to analyse, on the one hand, the meaning that the judges of the Supreme Court have given to this concept of equality before the law and, on the other hand, the way in which they have applied this aforementioned principle of Clause 1(b) of the Canadian Bill of Rights. Four judgements are the subject of Mr. Bourque's study. He concerns himself with the Drybones, Lavell, Burnshine and Canard judgements. In the course of analysing these cases, Mr. Bourque brings out the shilly-shallying of the judges in connection with their concept of equality before the law. In spite of this beating about the bush two concepts emerge at the level of the judges of the Supreme Court, namely an equalitarian concept of equality before the law, and a concept which makes equivalent equality before the law and the rule of law. According to Mr. Bourque, the analysis of these four judgements shows that it is the concept which makes equivalent equality before the law and the rule of law, which represents, the position of the Supreme Court, at the present time.

scholarly journals L'arbitre de griefs, instrument efficace de contrôle des abus de pouvoirs de l'employeur ?

2005 ◽  
Vol 19 (1) ◽  
pp. 105-115
Author(s):  
Jean-Louis Dubé
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Collective Agreement ◽  
Supreme Court Of Canada ◽  
Collective Agreements ◽  
Grievance Arbitration ◽  
Chief Justice ◽  
Arbitration Process ◽  
The Supreme Court ◽  
The One

In theory, recourse to the grievance arbitration would appear to be an efficient means of controlling the abuse of powers (i.e. violations of the collective agreement) by the employer. Indeed, experience has borne out the truth of this affirmation. Mainly due to the management rights principle however, there still remain several important lacunae in this regard. On the one hand, by invoking the so-called management rights principle as a favorite means for circumscribing the arbitrator's jurisdiction, the Supreme Court of Canada has greatly diminished the efficacy of the arbitration process. This has occured primarily through the quashing of arbitration decisions either on the basis of error of law or else by limiting the arbitrator's discretion in disciplinary cases. On the other hand, it would be just as harmful to the efficiency of the arbitration process if arbitrators themselves were to abuse the management rights principle in interpreting and applying collective agreements. In general, arbitrators have proved to be highly conscious of this problem. By the same token, arbitrators have been faced with the problem of whether or not to discipline acts of insubordination even though employees may have been provoked by an abuse of authority on the part of the employer. All in all, arbitrators, by their attitude, appear to manifest a desire of ensuring the efficient functioning of the arbitration process, without acting to the detriment of management rights. In this regard, the Supreme Court of Canada, with the notable exception of Chief Justice Laskin, would seem to be fighting a rear-guard action by continually emphasizing management rights.

scholarly journals Consultation with Aboriginal Peoples: Impacts on the Petroleum Industry

2020 ◽  
Author(s):  
Tony Fogarassy ◽  
KayLynn Litton
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Petroleum Industry ◽  
The Other ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Company Limited ◽  
The Supreme Court ◽  
The One ◽  
Court Of Appeal

The duties of consultation and accommodation with Aboriginal peoples affected by resource development were, until 2002, primarily the responsibility of the Crown. The British Columbia Court of Appeal, in two related decisions involving the Haida Nation on the one hand and the Crown and Weyerhaeuser Company Limited on the other, has placed these duties squarely on to the shoulders of industry. Where the Crown fails to discharge its duties of consultation and accommodation, resource tenures such as permits, licenses or leases may be invalid and activity conducted pursuant to the tenures may result in damages awarded against industry in favour of affected Aboriginal peoples. Appeals from both decisions will be heard by the Supreme Court of Canada. In the meantime, the law on industry’s duty to consult and to accommodate Aboriginal peoples continues to lack certainty.

scholarly journals The right to life in the system of constitutional rights and freedoms of individual and citizen

2021 ◽  
Vol 2021 (1) ◽  
pp. 37-41
Author(s):  
Oleg Amel'chakov
Keyword(s):  
Civil Rights ◽  
The Other ◽  
Constitutional Rights ◽  
Right To Life ◽  
Human Right ◽  
The Difference ◽  
Constitutional Right ◽  
Set Up ◽  
Definition Of ◽  
The Right

The right to life is traditionally recognized as a natural and inalienable right of any person and citizen. It is intrinsically connected with realization of other rights and liberties. The aim of the article is to clarify the concept and the essential nature of the constitutional right to life, to define its place in the system of fundamental human and civil rights and liberties. The article analyses constitutional rights, reveals the difference from the other human and civil rights and liberties and analysis other approaches of constitutional rights theoretic to the definition of the notion «right to life» as a constitutional right. The research gives the monitoring of the main statutory documents that defines the legal «understructure» of fixation and content of the notion «right to life» and the review of the foreign constitutional statutory documents that are devoted to the different aspects of law. Based on the results of the research a conclusion was made that the right to life takes a special place in the system of the constitutional rights and freedoms. The right to life is the inherent human right and this is admitted on the international level. Being fundamental in nature, it is based on the constitutional norms and principles, which set up uniformity of appliance and mechanisms for ensuring and protecting the right to life.

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