Is There a Constitutionally-Protected Freedom to Not Associate? Unless specific circumstances have been met in a criminal case, or the case in question is a Reference, appeals are heard by the Supreme Court only if leave to appeal is given. The standard for whether leave will be given is when the case involves a question of public importance. Recently, the Supreme Court has decided that a dispute between an individual and his membership at his chosen Church is of sufficient public importance. The facts of the dispute are relatively simple. A man was disfellowshipped, a concept equal to ex-communication, from his place of worship for failing to uphold a certain standard of conduct, and then for failing to be sufficiently repentant of those wrongdoings. The man subsequently lost a lot of real estate business, as the majority of his clients were fellow members of his place of worship. However, it is not whether the man’s business actually suffered and damages occurred as a result of his disfellowship that is the concern of the Supreme Court. Rather, the leave to appeal was granted over a jurisdictional question. Is a decision made by a religious body justiciable? In other terms, does the judicial system have discretion to make decisions that interfere with the voluntary membership of an individual and his chosen religious organization? At the trial level, the court determined that they did have jurisdiction to make a ruling over whether or not the disfellowship could be overturned. This court accepted that they had jurisdiction because the disfellowship had an impact on his civil and property rights. Undeniably, the court has jurisdiction to hear matters relating to civil and property rights. The case was then appealed to the Court of Appeal, where the majority upheld the trial judge’s ruling. While the majority accepted that courts typically do not interfere in matters relating to memberships in voluntary associations, that they could in this case because of the impact on civil and property rights. Their argument suggests that once your membership in a religious organization has an impact on your property and civil rights it is subject to the oversight of the courts. Most interesting to this decision is the dissent of Justice Wakeling, which focused on the constitutionality of interfering with memberships in voluntary associations. He argued that private actors are not subject to judicial review, and that as the congregation makes no decisions that have consequences for members of the public, it is not a public actor which could be subject to judicial review. That there is no justiciable question because church membership is not a legal right. He further established a Charter argument where he expressed that constituent members have the constitutional right to determine membership. Does the freedom to associate include the freedom to not associate? TBD. By: Samantha Hamilton, Student-at-Law “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlogNovember 17, 2017June 17, 2020
Police Brutality Leads to Thrown Out Charges By: Katelyn Bell, Summer Law Student The Canadian Charter of Rights and Freedoms (“Charter”) guarantees certain protections to Canadian citizens, such as the right to life, liberty and security of the person; the right to be free from unreasonable search and seizure; and the right not to be subjected to any cruel or unusual treatment or punishment. The Charter regulates interactions between the state (federal, provincial and territorial governments) and individuals; it does not govern interactions between individuals. If the Charter rights of an accused person were violated during the investigation against them, the court will exclude the evidence obtained in the investigation. This results in a dismissal of the charges. As such, many accused persons will seek to advance a Charter violation argument, which is not often successful. However, in the case of Mr. Jung, the argument was successful. Mr. Jung was stopped at a RIDE spot check in late February 2016. Mr. Jung was over the legal limit and therefore failed the roadside breath test. Mr. Jung was arrested by police at the spot check. Mr. Jung and his girlfriend – a passenger in the vehicle – were than transported to the police station for additional, more conclusive, breath tests. Mr. Jung alleged that during his time with the arresting officers, his Charter rights were violated. According to Mr. Jung, Constable Gill physically assaulted him while he was handcuffed. Mr. Jung stated that the police repeatedly bashed his head with a phone receiver, while the police officer claimed that he accidently hit Jung with the phone receiver. Mr. Jung was also deprived of using the washroom for a prolonged period of time. As documented by in-car video evidence, the two police officers who arrested Jung at the RIDE spot check told Jung to urinate in the back seat of the police cruiser. Mr. Jung’s case was heard at the Ontario Court of Justice on April 5 and 6, 2017. Justice J. W. Bovard released his decision on the matter on July 19, 2017. Justice Bovard found that the police did in fact violate Mr. Jung’s Charter rights, and as such, the breath tests could not be admitted as evidence (at paragraph 126): “I find that in light of this very serious breach of Mr. Jung’s right to security of the person, and considering the behaviour of the police regarding the breach, to admit the breath tests into evidence would bring the administration of justice into disrepute.” Besides the breath tests, there was no other evidence against Mr. Jung on the charge of impaired driving. Thus, the court was unable to find Mr. Jung guilty of impaired driving and the charge was therefore dismissed. Toronto police have said that the court’s decision is being reviewed by the internal Professional Standards Unit. Devry Smith Frank LLP (DSF) is a full service law firm located in Don Mills. If you require representation or have any questions, please contact DSF today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Human Rights LawJuly 31, 2017June 22, 2020
