Askov (1983-1990)
Issue: 11(b) rt. to trial within a reasonable time
In this decision, court developed the “Askov” test for unreasonable
delay. The test is to consider
-length of delay
-explanation of delay
-was there a clear waiver of right to trial within
reasonable time?
-has the delay prejudiced accused (hurt the case
of the accused)?
In this case:
-length of delay is unreasonable
-the cases of Askov et al have been prejudiced
-explanation: Delays in Peel are shocking.
Relies on Carl Baar’s evidence
-no clear waiver of right
Baar’s 1993 article commenting on Askov: judges misinterpreted
the stats (Can Bar Rev 1993).
Rodriguez (1993)
S. 241(b) of criminal code: prohibits assisted suicide.
Rodriguez: dying of Lugerrig’s disease.
Wanted declaration that 241(b) violates her s. 7
right to security of person, & s. 12 rights (cruel treatment) &
s. 15 rights (equality),
because it prevents her from arranging an assisted
suicide once life becomes unbearable, and she will be physically unable
to end her life.
Majority (5) Sopinka
-no infringement of any rights. Even if s.
15 violated, s. 1 saves.
Minority: (3 dec’s)
-McLachlin & L’Heureux-Dubé: s.
241(b) violates fundamental justice (s. 7), & can’t be saved by s.
1.
-Lamer: s. 241(b) violates s. 15, & can’t
be saved by s.1.
Mills (1999)
Issue: Privacy vs. right to fair trial in sexual assault cases.
O’Connor decision of SCC in 1995: Ct required 2-step process if accused
wants to obtain the private counselling records of the complainant.
1. Acc’d to show pte rec’s likely to be of value
in defence.
2. Judge will release records if satisfied that:
-Private record is necessary
for full defence
-Extent of reasonable expectation
of privacy allows
-Request for record not
based on bias
-Victim’s dignity or sec
of person not unreasonably affected
In 1997, Parliament enacted Bill C-46 in response. This legislation
did not exactly follow the advice given by the Court to Parliament in the
O'Connor case.
For private records to be produced, C-46: requires
-application in writing by accused for pte records
-judge holds in camera hearing re whether to review
-if necessary, judge reviews the private record
-judge decides whether record or parts should be
provided to accused
As well, the judge can order restrictions on media publication.
Court: advocated a dialogue with legislature. In this case,
Parliament had carefully considered the Court's advice, and rejected some
of it.
However, the plan Parliament devised was nevertheless
in accord with the Charter. C-46 is an acceptable balance between
the victim's right to
privacy and the accused's right to a fair trial.
Hunter v. Southam (1984)
Impugned: Search of Edmonton Journal in 1982 by Combines Investigation
Officers
S. 8 of Charter (right to be secure against unreasonable search and
seizure): Dickson says purpose is to protect the right to privacy
A reasonable search is
-Authorized by a statute
-Conducted after a search warrant issued, unless
police in “hot pursuit”
Search warrant must be issued by an impartial party, which must be satisfied
that there are probable grounds that an offence has been committed.
In this case, those who issued the search warrant were not independent,
but members of the Restrictive Trade Practices Commission who had in interest
in the outcome. As well, their test was not “probable grounds” that
an offence had been committed, but a vague possibility.