ITEM A
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2013-10-12 The Oakes Test to over-ride Charter Rights. How Prosecutors get around it.
This arises from my experience in trial over the Charter Right to Privacy of personal information.
I hope that people, including Law students, will challenge the idea that the Government, in over-riding a Charter Right, has to meet strict standards that protect Charter Rights. That is a myth. It is not true.
In reality, there is little protection because the procedure is flawed. It’s not too hard to see.
The following may be useful to someone, sometime.
THE WAY IT IS SUPPOSED TO WORK:
If the Government wants to over-ride a Charter Right, it must successfully argue the OAKES TEST in front of a Judge.
MORE – – see Items # 3 & 4 in Charter of Rights and Freedoms, Section 8 Privacy . . . Oakes Test to override.
THE WAY IT WORKS IN PRACTICE – HOW IS THE OAKES TEST CIRCUMVENTED? . . . EASILY
The test has to be triggered by the Crown (the Prosecutors). All they have to do (as they did in my case), is DECLINE TO ARGUE THE OAKES TEST – – make some other argument. They can thereby extinguish a Charter Right without ever having to justify doing so.
It is a sound strategy if you are the Prosecutor, trying to win a case against a Charter Right.
But it has the consequence of making a mockery of the Oakes Test, AND of the Section 1 Over-ride, AND of the Charter Right.
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WHAT SHOULD BE
In defending a Charter Right, the Defence has to be able to compel the Crown to meet (to argue) the requirements of the Oakes Test.
The Test is irrelevant, unless there is some way in which the DEFENCE is able to trigger it? Or unless the Judge can order it?
UNTIL THEN Charter Rights in Canada are extremely vulnerable, maybe non-existent.
My Direct Experience, Excerpt:
- IMPORTANT: IN MY TRIAL, THE CROWN DID NOT ARGUE AN OVERRIDE OF THE SECTION 8 CHARTER RIGHT. BUT THE CHARTER RIGHT WAS IN FACT TAKEN AWAY.
Steve (lawyer) writes, 2013: (I, Sandra, added the parentheses.)
The “override” you’re talking about is section 1 of the Charter, which was not raised by the Crown, so it was not considered by Judge Whelan (Provincial Court, guilty decision) or Justice Conkin (Court of Queen’s Bench, guilty decision upheld).
Judge Whelan’s decision focused on whether the search was “reasonable” under section 8 of the Charter.
As I had previously understood lawyer Steve’s explanation:
- under the procedures we, the defendants, could not place the argument against an override of the Section 8 Charter Right before the Court. The argument for an override had to be originated by the Crown, and then we could have placed the opposing argument, defending against an override.
(INSERT: The Judge asked the Prosecutor a few times if he was going to argue a Section 1 override of my Charter Right to privacy of personal information. The prosecutor consistently said “no”. I was confused by this. My understanding of the law was that the Crown effectively wanted to extinguish my right to Privacy. And would therefore be compelled to successfully argue the Oakes Test (which I didn’t think they could do). As became clear, the Prosecution would have been crazy to follow the prescribed procedure for override on a Charter Right. Read on.)
For me, the EFFECT of the Crown not arguing a Section 1 override:
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I was given a conditional discharge, but at the base, I was found guilty of non-compliance – – which has the effect of removing the Charter Right to privacy of personal information.
The OAKES TEST is specifically a TWO-PART test, with a 1. AND a 2. The Crown Prosecutor and Judge did not consider it, although it is the procedure established by law to override a Charter Right.
We were denied the ability to make the Oakes Test arguments against an override of the Charter Right to privacy. The Judge did not have to address those arguments in her decision through the simple mechanism of not calling it a Section 1 override.
The “REASONABLENESS” addressed by the Judge, as I understand, was whether it was reasonable for the Government to collect the information (because it is valuable information).
The preceding, (#4.) is excerpted from:
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UPDATE Feb 2016: From posting 2016-02-04 Census, Lockheed Martin & Charter Right. Replies to student research, Philosophy Class, Truth & Propaganda. (Includes “What were my primary motivations?)
RE: former Chief Statistician agrees with the premise of your second reason (Charter Right to Privacy). He states that while the mandatory collection of personal information is in violation of the charter right, however it is a ‘legitimate violation of the right’ (the idea that rights may be rescinded for a social good) because it is a recognized necessity as outlined in the statistics act.
MY REPLY:
Yes, the Government may rescind the rights of an individual. However,
- The Statistics Act does not give the Government the authority to do that. StatsCan cannot just declare that this is so.
- In order to override the Charter Right of an individual, the Government has to pass the “Oakes Test“.
If StatsCan wishes to take away Canadians’ Charter Right to Privacy of Personal Information, it would have to make an application to the Court to do so, supplying the Court with the arguments to satisfy the Oakes Test. It has not done that. So the Charter Right stands.
INput received by email:
Regarding Oakes, it is a mainstay of the Constitutional Law courses in Canada. Even though I took Constitutional Law long before the Charter I know it well. It was actually formulated by the Supreme Court with significant influence from an article . . .