Analysis The Supreme Court’s ruling in Burns is important because the case involves a critical shift in Canada’s approach to extradition in cases involving capital punishment. In “effectively overruling” the decisions in Kindler and Ng, the Burns verdict now means that almost all extraditions from Canada that do not contain assurances that the death penalty will not be imposed violate the principles of fundamental justice. In that respect, “in all but exceptional cases” any exercise of the Minister’s discretion that purports to grant an unconditional extradition in light of a capital sentence is void under s. 7 of the Charter. This ruling now shifts Canada’s approach to death penalty extradition in line with that of most European …show more content…
25 of the Extradition Act. The technical aspect of the Court’s reasoning was based on the “balancing process”, and involved evaluating whether the deprivation of liberty as a result of the extradition process was in accordance with s. 7 of the Charter. In doing so, the Court affirmed as correct the approach taken by the Court in Kindler and Ng. The Court in Burns adopted Lamer J’s discussion in Re B.C. Motor Vehicle Act that the “principles of fundamental justice” were comprised of the “basic tenets” of the Canadian legal system. According to their Honours’, the weight of relevant factors advocating extradition without assurance, including the principles of comity and fairness as inherent within the extradition process, the notion that people who travel beyond Canada’s borders also leave Canada’s legal system, and the appropriate place of trial is the state where the offence occurred, was insufficient to tilt the balance in favour of unconditional extradition. In reaching this determination, the Court in Burns cited a change in the weight of conflicting factors in the intervening decade as underpinning their decision. The Court provided three main reasons, which formed the substantive focus of the Court’s reasoning, as to why the precedent decisions in Kindler and Ng were no longer applicable in extradition cases. These factors included: i) the international trend to abolish the death penalty, ii) the concern over wrongful convictions and iii) the
In R. v. Gladue, the Supreme Court of Canada addressed the issue of proper interpretation of s. 718.2(3) for the first time. The accused was an Aboriginal women charged with second-degree murder for the killing her common-law husband. Gladue’s defence counsel did not raise that she was an Aboriginal offender in his submissions on sentence at trial and she was sentenced to three years imprisonment and a ten-month weapon prohibition. Gladue appealed her sentence to the British Columbia Court of Appeal, and again to the Supreme Court of Canada in December 1998. Although her appeal was dismissed again, the Court went to provide a framework for interpreting s. 718.2(e). In this case, it was determined that the Court was required to consider all reasonable alternatives to imprisonment for all offenders with particular attention to the circumstances of Aboriginal offenders generally and not only to those living on the reserves. In particular, there needs to be more emphasis on restorative justice, where community members and the victim will also be involved in the process. The Court is allowed to take into account prior findings of guilt when determining the appropriate sentences and in some offences prior guilt will create a higher minimum sentence, which the Court
The criminal procedure utilized by Canada and France holds some similarity in the process of locking criminals away. Canada’s criminal procedural gives the accused the ability to defend themselves against unlawful prosecution. The trial option offered to the accuse provides an opportunity to challenge the evidence with the use of the courts. If a case is weak and the accuse believe a judge and jury would be able to determine, its weakness and dismissed the charges before going any further. France’s criminal procedure is similar to Canada’s juridical system. This is especially so in their inquisitorial system, which follows civil law jurisdictions. Each country sets out to punish criminals for crimes they commit and they also establish laws
The aspect of the Canadian justice system that this article relates to is obviously policing/ law enforcement. Specifically this article goes into the regulations of policing as Ontario police officers now have to follow stricter regulations when stopping any member of the public. This is important in relation to the Canadian justice system as police officers stopping citizens is considered a controversial issue as people feel random stops or carding are considered arbitrary, and unnecessary, and this violates section 9 of the charter of rights and freedoms which states that “everyone has the right not to be arbitrarily detained or imprisoned”. (Canadian Charter of Rights and Freedoms) and Carding is “A practice by which officers stop, question,
I am a high school student at Monarch Park Collegiate, taking law. I am writing to express my concern about an innocent native-born Algerian who the Canadian government is going to be deported named Mohammad Harkat. Mohmmad Harkat has been unfairly and poorly treated under the Canadian law system. I learned about him threw a movie our law class watched, “The secret trail 5” witch highlights how Security Certificates are totally unfair and injustice full. The movie also highlights how Harkat was denied his rights and everything that happened to him that was injustice. Therefore, I think Mohammad Harkat is innocent, as his Canadian and human rights were affected. I
Since the birth of the Canadian Charter of Rights and Freedoms there is growing scrutiny of the Supreme Court of Canada’s role in the intertwinement law and politics. Individuals are noting that courts under judicial review have the capacity to shape law to meet the evolving needs of society (Sharpe, 2003:1). This paper will analyze the emerging issues witnessed in the study of Canada’s judiciary system. The first issue being explored is the concept of “Judicial Activism”. This paper defines “Judicial Activism” with accordance to Britannica Encyclopaedia online as being a phenomenon in which judges take a direct policy-making role, and seem more than willing to strike down legislative or executive actions. (Roosevelt, 2015:1).
This paper will be focusing on the controversial issue of mandatory minimum sentences in Canada. There has been much debate over this topic, as it has quickly become implemented for the sentencing of drug offenders, drug-related crimes and banned firearm offences. I will argue that every case that comes through the criminal justice system is different and deserves a fair trial with a sentence that is not already determined for them. There have been many cases where the judge has no discretion in the sentence due to the mandatory minimum sentences pre-determined for the case, no matter what the aggravating or mitigating factors were. I will argue that the mandatory minimum sentences in Canada should be reduced or eliminated as
American fugitives frequently would remain wherever they came into Canada but had to live in fear of slave catchers coming over the border to try and reacquire escaped property. Legal avenues were a frequent recourse of slave catchers to try to underhandedly return escapees under false pretenses. However the lack of a distinct extradition treaty left decision making on a jurisdictional basis with great strength resting in regional institutions and individual judges or
Canadian Criminals are a major part of Canadian society. In our country if you were not the direct victim of a crime you tend to forget the members of society that take pleasure in causing societies grief. As in the case of James Hutchinson and Richard Ambrose, whose crimes were committed in December of 1974.1 They were convicted of killing two Moncton City Police officers. Today, years after the murders were committed Ambrose and Hutchinson are still the center of a major controversy that has plagued our parole system. In order to fully understand the controversy that Ambrose and Hutchinson posses you must look at the
I feel that the parliament and legislature should have the last word in deciding a case, and I have many reasons to support it. First, being that the Canadian Government is entrenched in the Canadian Charter of rights and freedoms. When Prime Minister Pierre Trudeau, made sure that the Charter was stuck to the future laws of government, it made sure that every canadian citizen has rights and freedoms, including legal rights. The legislatures and parliament would have to consider everything included in the Charter. Which made sure that the testimony used against suspects were realistic. An additional support to my point, is because we voted for our own government to take power. That would result in making sure that the Parliament will be fair
On the other hand, the appointment of judges shapes Charter interpretation, forcing Canadians to reconsider the people they have given power to and to rethink the Charter’s interpreters’ authority in creating a more “just” society. Hence, while Canada may claim to be progressing in legal thought, the lack of Supreme Court checks and balances proves otherwise. Unlike the politicians
I have proposed in these first paragraphs that there are problems with having judges at the head of the legal and moral trajectory of our nation, but surely I am not the first to propose such a thing. The Canadian Charter of Rights and Freedoms addresses this issue by having the threat of a legislature disregarding the Supreme Court. Sections 1 and 33 give parliament just such authority. At the beginning of this essay I made the statement that putting our rights under reasonable limits
The Canadian Criminal Justice System is, for the most part, reflective of the Charter of Rights and Freedoms and various Supreme Court of Canada case-law. Everyone who finds themselves on the opposing end of the Criminal Justice System is entitled to certain protections every step of the way, beginning even before the arrest; laws protect us from unreasonable investigative techniques, guarantee certain rights at point of arrest, and provide us with the right to counsel. The bail court departs from the ‘beyond reasonable doubt’ standard in that the crown only needs to prove on a balance of probabilities (Kellough, 1996, p. 175) in order to take away a person’s freedom. It is for this reason I decided to limit the scope of my
In common law, judges interpret the law and judge apply it based on precedent from previous cases; compared to civil law which focuses on written legislature. In Canada, judges are given the chance to be activists. If a judge believes a citizen’s rights, under the Canadian Charter of Rights and Freedoms, are being violated, they are given the power to rule against the unconstitutional law made by the elected branches of government; this concept is referred to as judicial activism (Hausegger, Hennigar, & Riddell, 2015, p. 123). Judicial activism ensures the individual rights of each person are upheld, but the concept is controversial. Judicial activism is problematic because it awards an authoritarian level of power to unelected judges, which goes against Canada’s democratic ideology where elected officials decide and vote on the laws (Cameron, 2009, p. 27). I argue that judicial activism should not be a part of Canada’s judicial process because it gives too much power to the courts and disrupts the democratic process of
Twenty-nine offences in the Criminal Code have a mandatory minimum sentence of imprisonment time. The majority of these sentences were introduced with Bill C-68, a set of firearms-related legislation introduced in 1995. In addition, there are also mandatory minimum sentences for several other offences, such as child prostitution, betting, pool-making, and impaired driving. Mandatory minimum sentences impose legislated punishments, furthermore, there is no discretion for judges to reduce the sentence for anyone convicted of an offence carrying a mandatory minimum sentence in Canada, which is seen by critics as a major problem in our Canadian legal system. Judges should be given legal discretion in reducing the sentence for accused individuals. A number of cases have dealt with the question of whether minimum mandatory sentences violate section 12 of the Charter. This essay will look at R. v. Latimer in depth, as well as briefly explore some additional issues that mandatory minimum sentences place on Canadian Citizens.
Surratt v A.G of Trinidad and Tobago - “To the extent that the answer to the present problem is doubtful, weight should be given to the judgment of Trinidad and Tobago courts. A judge sitting in a local constitutional environment, in which he has grown up and with which he is familiar, is likely to have a surer sense of what falls within the purview of the constitution and what falls beyond, than a court sitting many miles away…”