FUNDAMENTAL JUSTICE AND THE CHARTER
Suggestions for class presentations/paper topics:
- the case comment is always a reliable source of class presentations and paper topics.
- there is a tremendous diversity of s.7 cases, and you should be able to find a case to comment on without too much difficulty
- there are many cases in which the SCC has divided, and it is often quite interesting to do an analysis of the differences and come to some conclusions of your own -
- examples here are the cases on confrontation [Seaboyer] and third party disclosure [O=Connor, Carosella]
- the Court also divided in some key extradition cases
- in addition, there are a number of s.7 cases that have been decided recently - 2 dealing with access to legal aid under s.7 and a third, with the right to remain silent
- another route to go is to compare one or more s.7 cases -
it may be your view that there are relevant comparisons that point to a conception of s.7 in the
cases, or inconsistencies between the cases that should be pointed out
- there are also some good topics to write/comment on under the heading Interpretation@
- the intent of the framers has all but been forgotten, and maybe there=s something to say about the gap between what was intended and what has evolved
- how the first part of s.7 should be interpreted may be a little abstract but it is a good and an important topic - the recent legal aid case might be one way of making it more concrete;
- another possibility is to look at how that first part and fundamental justice should be interpreted together
- a comment on Chief Justice Lamer=s conception of s.7 would be interesting and do-able too - the scope of the paper could be limited to the main cases in which he advances his theory [i.e., MVR, Prostitution Reference, Children=s Aid, I am not sure whether there are others].
- the relationship between s.7 and s.1 may be more difficult; ditto the relationship between s.7 and other guarantees - whether they be the illustrations set out in ss.8-14, or s.2(a), s.15 etc.
- there are any number of particular topics that could give rise to a good paper
- if you browse through the syllabus and develop any interest in the content of particular sessions, then I would suggest that you go and read a little to see whether that might be a good paper topic for you
- things like the constitutionalization of mens rea or the meaning of fair trial may be more difficult than aspects of those topics: - like full answer and defense [comments on O=Connor, analysis of Parliament=s follow-up legislation, discussion of its constitutionality are all possibilities there] or intoxication as an aspect of the Court=s s.7 jurisprudence on fault [i.e., comments on Daviault, s.33.1 and its constitutionality]. War crimes is another example of a discrete aspect of the mens rea/fairness debate
- vagueness could be a good blend of structural [is it under s.7 or s.1 or both]; jurisprudential [what are the purposes of the doctrine and how broad/narrow should it be] and case comment [you could talk about Heywood or Morales]
- jury selection is a good one, though I haven=t done too much reading there myself - also the question whether fundamental justice requires access to jury deliberations - didn=t that come up in the Morin inquiry and I forget how it was resolved, but I find that one potentially interesting
- the right to remain silent has generated some case law recently as has freedom from self incrimination [Stillman].
- another aspect of the issue is civil
- bias is a topic that hasn=t generated a huge amount of s.7 case law. Still I think that R.D.S. Is a good case for this course and a good possibility for a paper or class presentation
- there are other aspects of fair trial that are not specifically listed in the syllabus [the right to an appeal and the right to reasons are topics where some creativity could come in handy]
- there are also the marijuana cases and the s.7 issue about security of the person - now that may be an interesting topic.
- military justice is a topic which is more specialized, but I=m sure there are some issues there The military are treated differently in any number of ways - discipline etc and there was also the issue of the soldier who refused the anthrax vaccine. I don=t know what happened ...
This should help you get started - it doesn=t hurt, either, to take a few moments and check out the Charter Annotated books [there are at least two of them] They provide digests of the s.7 cases that have been decided and could give you some ideas.