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Charter Notes

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Charter Revision

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Charter Section 7 Framework: CH DPF
-a) Threshold: Applies when "life, liberty or security of the person" are impaired (s. 7)
-*NB: only directly invoke these if trying to challenge a specific statutory provision> if not, you get the same result re scope of PF under CL
-applies in narrower contexts than CL DPF but is more expansive pfjs encompass CL DPF, but the CL DPF is not constitutionalized (Singh)
> everyone "physically present in Canada and by virtue of such presence amenable to Canadian law" is entitled to s. 7 right (Singh)
-examples of s 7 values engaged: o Where it involves action overseas, there must be a causal connection to the Cdn govt (Suresh): o Refoulement or prolonged/indefinite detention (Charkaoui) o Serious state-imposed interference with psychological integrity (G(J): welfare authorities seized child) o Deportation to face persecution (Singh) or significant risk of torture (Suresh) o Delay caused by ODSP eligibility process such that it caused extreme hardship (Wareham)
-examples where s 7 not engaged: o Reputational or psychological stress does not qualify unless it is extreme (Blencoe) o Delay from an admin proceeding does not qualify unless it is extreme (Blencoe) o Extended detention scheme if accompanied w regular review (Charkaoui)
-b) Content of CH DPF
 Where statutory scheme infringes the CH DPF, a ct may use the CH may strike statute and impose requirements (Suresh> use Baker factors)
 PFJs are flexible in their content, s 7 does not require a particular type of process but a fair process having regard to the nature of the proceedings and the interests at stake (Charkaoui) o CL informs content of duty once threshold is crossed: the greater the interests at stake, the greater the procedural protections (Suresh) o Encompasses the right to a fair hearing, specifically (Charkaoui):
 An independent adjudicator
 Right to know the case against you
 The right to answer that case o Oral hearing is required where credibility is at issue (Singh) o Requires reasons (Suresh) o Encompasses disclosure, but not required if the material is a legal opinion or can be limited if the materials are sensitive for matters of national security (Pritchard; Suresh; Charkaoui II)

Limitations: o Doesn't require state funded counsel (Christie) o weighing of stat objectives and individual's rights should occur in s 1 only (Malmo Levine; Charkaoui)

c) s 1 Security concerns shouldn't be used to justify s 7 violations (Charkaoui) o Courts very reluctant to uphold s. 7 violations under s. 1: that which violates pfjs very unlikely to survive Oakes test (G)(J))
 Not minimally impairing if they are alternate approaches that would better balance stat objectives and individual's rights (Charkaoui) o

o

Examples where violation not justified under s 1: o Singh: IRPA scheme which denied right to oral hearing where credibility at stake o Suresh: exercise of discretion (as opposed to legislation itself that provides discretion) resulting in sending refugees to face torture as the Minister failed to provide adequate safeguards and reasons o Charkaoui: security certificate scheme violates bc in camera, ex parte hearings violates right to a fair hearing as individual doesn't get to respond to case

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