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This article critically considers the expanded use of reasonable hypotheticals in challenging the constitutionality of criminal offences under section 7 of the Canadian Charter of Rights and Freedoms (Charter). The author consolidates concerns raised by judges and scholars over use of the device and explains how these concerns are amplified in the first two constitutional challenges to three of Canada’s new criminal prostitution laws with potentially significant consequences for constitutional limitations on what can and cannot constitute a crime. The reasonable hypothetical is a device originally used by courts to evaluate the constitutionality of mandatory minimum sentences under section 12 of the Charter based on the circumstances of a reasonable hypothetical offender, rather than those of the actual offender before the court. Judges later expanded the use of the device to evaluate the constitutionality of criminal offences under section 7 based on the circumstances of a reasonable hypothetical accused, rather than those of the actual accused before the court. However, the process through which constitutionality is evaluated differs, raising distinct concerns about the use of hypotheticals in evaluating the constitutionality of criminal offences that have largely gone unexamined and unacknowledged. Concerns raised by judges and scholars about the use of reasonable hypotheticals fall into three categories: (1) the “air of unreality,” where the rights violation at issue does not arise on the facts of the case before the court; (2) the nature and scope of evidence that can, should, or must be before the court in cases where the device is used; and (3) the appropriate remedy where an impugned law applies in a constitutional manner to the offender or accused before the court, but in an unconstitutional manner in hypothetical circumstances. Each of these categories of concern is aggravated in the first two constitutional challenges to some of Canada’s new criminal commodification offences; the way hypotheticals are used in section 7 cases obscures the experiences of victims and complainants and allows courts to adjudicate constitutionality and remedy constitutional breaches based solely on hypotheticals and expert evidence. The author suggests that if courts continue to allow accused in criminal proceedings to use reasonable hypotheticals to challenge the constitutionality of offences under section 7 of the Charter, they undertake their evaluation of constitutionality with the benefit of adjudicative fact evidence about the circumstances of the case before them, to directly address how rights, interests, and values in tension with those of the hypothetical rights claimant may be relevant to a potential section 1 justification and tailor a remedy that meaningfully attends to the experiences of victims and complainants.
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The norm against overbreadth—a law should not be overbroad in relation to its own purposes—is well established as a principle of fundamental justice under section 7 of the Charter. But the Supreme Court of Canada’s case law contains two competing formulations of this norm. According to the strict version of the norm, a law is overbroad if it applies in even one (actual or hypothetical) case that is not directly necessary to the achievement of its purpose. According to the relaxed version of the norm, a law is overbroad only if it applies in cases beyond those that are reasonably neces-sary to its operation. The strict version of the norm is unworkable because it relies on two un-tenable assumptions: first, that a law is always an instrument for achieving a purpose that can be fully specified apart from the idea of legal order; second, that a law can be drafted and applied so that it never goes beyond that pur-pose. The result is that, on a proper application of the strict version of the norm, all laws are overbroad. The relaxed version of the norm shares the first assumption but not the second. With respect to those laws that are properly characterized as instrumental, it would be bet-ter to abandon the strict version of the norm and adopt the relaxed version
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"This comprehensive treatise covers both civil and criminal law evidence. The book is written for lawyers, judges and students, and covers evidence law topics such as standards of proof, hearsay, similar fact evidence, opinion evidence, witnesses, privilege, and admissibility of evidence."-- Provided by publisher.
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Fitness to plead refers to a criminal defendant’s ability to participate at trial. The purpose of fitness-to-plead laws is to protect the rights of vulnerable individuals who are unable to defend themselves in court and to preserve natural justice in the legal system while balancing the needs to see …
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Québec courts are experiencing an increase in the number of parties without legal representation. Although this trend is generally presented as a problem that generates extra costs and delays for the courts, the central issue is clearly that a large segment of the population is unable to afford legal expenses. However, what is the legal status of non-representation : is acting alone a right ? Although this is the approach generally taken by the courts, the extent of the right is strongly limited by the discretionary way it is implemented. An important distinction must be made between criminal and civil cases, in particular concerning protection for a right that is constitutional in criminal cases, but legislative in civil cases. Despite the lack of knowledge about the reasons why people choose not to be represented by a lawyer, a survey of the jurisprudence shows that acting alone is often considered to be a choice, which then has a significant effect on the implementation of the related judicial guarantees.
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"Of all the issues that bring mental health practitioners and the criminal courts together, fitness to stand trial is by far the most common. In Canada, thousands of fitness assessments, psychiatric reports, fitness hearings, and verdicts of either “fit” or “unfit” to stand trial are rendered every year. For such a common event, one would be inclined to think that, for the most part, the law is uncontroversial; that most of the issues have been settled. Fitness to Stand Trial lays out the law as it is seemingly settled, and discusses several areas where the law is much less settled."--Résumé de l'éditeur.
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The article discusses the English case law under the notion of best interest test as articulated that lead to the development of fitness to plead in New Zealand. It examines the idea of decisional capacity and its start to turn fitness jurisprudence more decisively towards a capacity-based notion of trial competence. Also mentioned is the developments of case law where the best interest standard is discussed and its future implications on law.
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