CLU3M1: UNIT 1 CA CASE ANALYSIS STATUTE LAW AND COMMON LAW R. V. SAULS, [2002] B.C.J. NO. 3083 BRITISH COLOMBIA PROVINCIAL COURT Four aboriginal people (Mark Sauls, Trevor Dennis, Roseanne Jack and Roderick Anderson) participated in a roadblock of a highway in British Columbia and hindered a nearby excavation. The excavation for the expansion of the Sun Peaks resort caused a dispute between the British Columbia government and the Neskonlith Indian Band. As a result, these aboriginals obstructed both lanes of the highway for hours holding up traffic and causing havoc. The RCMP then negotiated with the accused and the blockade was eventually removed after which two of the accused jumped onto the excavation site and lay down in front of an excavator, forcing it to stop. The accused were charged with intimidation from and mischief under the criminal code. Mark Sauls and his band members maintained that they had acted “with legal justification or excuse, and with color of right” if which true under Section 429 of the Criminal Code would give them the right to act as they did. It was their position that they honestly believed the highway and resort were on aboriginal land and they had the legal right not only to control the land but to eject trespassers from it. The trial judge however dismissed their defence of Color of rights with the ruling that the group did not have an honest mistaken belief of the law but rather disregarded it. As well, if their claims were true, the method in which they attempted to prove their point were extreme signifying a more political statement rather than honest belief. They were found guilty of the charges and three of the accused thus received a sentence of 90 days of imprisonment for blockading a road... ... middle of paper ... ...ed by the convicted can be found in Section 429 of the Canadian Criminal Code. In conclusion, the colour of rights Statute Law was interpreted and applied correctly by the trial judge who made a decision of Common Law rather than solely based on Statute Law. EXTRA NOTE: After further research, I found that the decision by the trial judge was appealed by the convicted when they presented the following arguments: failed to consider the aboriginal perspective, erred in applying the wrong test for what constitutes colour of right or honest belief, erred in applying the wrong test for mens rea (conscious guilty state of mind), failed to apply the standard of proof beyond a reasonable doubt and erred in making material errors of fact on the evidence. The appeal judge, Honourable Mr. Justice Cole, dismissed all the arguments as contradictory, opinionated and self-serving.
The Oka Uprising was initially a peaceful protest over the expansion of a golf course on Mohawk territory that turned violent after Quebec’s provincial police, the Sûreté du Québec, responded to the protest with tear gas and flash-bang grenades, eventually escalating to a gun battle between protesters and police. Years after the stand-off, revisionist military historians have praised the Canadian military for avoiding bloodshed because of their “personal commitment [and] calm and attentive approach to native reality,” in which they ought to be commended for “carrying the burden of peace” (Conradi 548). However, Robinson rejects this notion and instead proposes a re-imagining of the Oka conflict through the “adjustment” of First Nations people who fought at Oka with the “bombing of the last Canadian reserve” (Robinson 211). Through “carrying the burden of peace” the Officers are given the power to destroy any semblance of Indigenous tradition, such as the potlatch, and to violently corral all First Nations people to sectioned off “Urban Reserves”. By disrupting popular Canadian perception of law enforcement Robinson succeeds in creating a dystopian image of corrupted power that allows readers to sympathize with the subjection of First Nations people of
55), but this was taking away from Gladue not only by Barton, but also through the courts, as the case was acquitted. The constitution act also states in section fifteen subsection one that “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disabilities” (Canada, Last revised 2016, p. 56); however, we notice that this case was acquitted was it because Gladue was of aboriginal descent or she worked as a prostitute or that she was simply just a women who has no power? As this leads us to assume such injustice were present in this court case, because if there was three other reported cases in Canada over a twenty year span where victims succumbed to their injuries resulted from rough sex, and those cases all defendants were convicted with murder charges, why was Barton’s case
In 1901, the same year Australia was federated, the Commonwealth constitution stated that “Aboriginal natives votes shall not be counted” and thus placing them into the flora and fauna section and introducing the white Australian policy (Korff, 2011). David Unaipon was just 29 years old when this occurred (Gizmodo, 2004). While Unaipon was alive there were many instances of institutionalised racism that further widened the gap between aborigines and Caucasians (Gizmodo, 2004). In 1926, when Unaipon was 54 years old 11 aborigines were murdered, however when the criminal was caught, they were let free (Korff, 2011). This shows that aborigines were being discriminated against throughout Unaipon’s life with many laws targeted against them and many legal options being taken away from them. It was only in 1967 that the indigenous were given basic rights, and were included in the Australian census and fully classed as a “person” and recognised for this (Korff, 2011). Sadly, this was held 109 days after Unaipon died and proves that he had to endure racism during the entirety of his life. It is evident through these examples that racism played a major role in why David Unaipon’s ability was not used in science and this is seen through the institutionalised racism present during Unaipon’s life.
The Charter of Rights and Freedoms is an important document that allows us to live our lives without arbitrary governmental control, although there may be certain times when rights should be limited. The R. v Oakes case is a perfect example of this situation coming into play. David Edwin Oakes was caught with an unlawful possession of hash oil and was automatically convicted of trafficking, under section 8 of the Narcotic Control Act. By looking at the Charter, it was clear that section 8 of the NCA violated his right to be presumed innocent until proven guilty, guaranteed in section 11.d. With that in mind, the respondent brought in a motion that challenged section 8 of the Narcotic Control Act. Since the Supreme Court and the Crown were confident that the suspect was trafficking narcotics, they created a four criteria ruling, in order to reasonably limit the rights of the respondent. This is permissible under section 1 of the Charter, which states that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms…only to such reasonable limits prescribed by law.”2 The respondent’s case passed the first criterion which stated that “the reasoning for limiting the Charter must be proven important enough to override a constitutionally protected right.” The case did not pass the second criterion which stated that “there must be an appropriate connection between the limitation of rights and the objective of the legislation.”2 Therefore, the appeal was dismissed and the respondent was released. After reviewing the case it was clear that even though the suspect did not have his rights limited against him, limiting rights should be used more often in severe cases.
Evidently, Truscott received financial compensation for the ordeal and the suffering it brought to his life by being awarded $6.5 million from the Government. This led to the conclusion that in this case (like many others) the police were solely and unjustly targeting one person. I learned a great deal from this case about Canada’s previous laws. Prior to the case, I had known about the death penalty and that it was legal in Canada, but I did not know when it could be implemented.
R. v. Lavallee was a case held in 1990 that sent waves through the legal community. The defendant, Lyn Lavallee was in a relationship with her partner, Kevin Rust, in which he would abuse her both mentally and physically. On the night of the incident, Lyn and her husband got into a fight, her husband pulled out a gun and told her if she didn’t kill him now he’d be coming for her later. When leaving the room, Lyn shot Kevin in the back of the head killing him instantly. She was convicted of murder, but when brought before the Manitoba Court, she was acquitted of the charges. An appeal was made to the Manitoba court of Appeal on the grounds that expert testimony should not be admitted as evidence in the courts. They argued that the jury was perfectly
The ‘Wave Hill Walk Off’ proved an establishment to the liberation of Aboriginal people from the struggles for rights and freedom. The effectiveness of this movement is judged upon the influence on rights and freedom, function of the actions taken, and the outcomes of events within this movement. Through their actions, the Gurindji showed the vitality of Aboriginal desire to achieve a practice that respected their identity, traditions and rights to their traditional lands.
...ndigenous recognition and the removal of racist remarks has been an on-going theme for a vast majority of time. The necessity of Constitutional reform to close the gap on cultural divide as well as support the on-going concept of reconciliation is essential in ensuring Australia continues to improve and nurture its relationship with Indigenous peoples. The process of amendment through referendum has proven to be problematic in the past, with the success rate exceptionally low. Though with key factors such as bi-partisan support, widespread public knowledge and correct management, the alteration to remove racial discrimination and provide recognition for Indigenous persons within the Constitution is highly achievable. If proposed and eventually passed, this will provide assistance in eliminating many of the cultural gaps Indigenous persons face throughout society.
David Milgaard’s story is one of the most striking and well know representation of wrongful conviction as it happened right here in Saskatoon. Even further than that his case has been called “one of the most famous examples of wrongful conviction in Canada” (CBC News, 2011). In January of 1970, 17-year-old ...
Syme, D. (1997). Martin Bryant's Sentence- What the judge said, Retrieved 5 July, 2003, from http://www.geniac.net/portarthur/sentence.htm. 7. The Australian Encyclopaedia.
From 1945 to 2010 Canada treated the First Nations people unfairly when it came to their rights to the land and use of its bountiful resources. In order to make things fair, the Canadian government issues treaties, which were meant to initiate the regulations of the land and its resources whatever they may be, and to verify the rights, obligations, and ownership of the land; But sometimes these treaties are broken. A well-known example of aboriginal injustice happened in the year 1990 from July 11th – September 26th. The Oka Crisis, as it was called, was a 78 day confrontati...
Barsh, R. 2005. Aboriginal peoples and the justice system: Report of the national round table on Aboriginal justice issues (Book Review). Great Plains Research, 359-362.
Compare and contrast the arguments that have been advanced for and against the incorporation of Aboriginal and Torres Strait Islander Law in the criminal justice system.
Canada is a nation known for its multicultural society. In such a diverse nation many would believe equality would exist. However it does not; and it is evident in the Criminal Justice System in Canada. The racial disparity in the Criminal Justice System is the result of bias treatment of certain individuals based on their race. The selective prosecution of visible minorities, immigrants and Aboriginals has been recognized as a racial inequality and corrupted the Criminal Justice System. The unequal treatment of immigrants and Aboriginals within the justice system has become evident through various forms. Canada`s colonial past has greatly influenced the judicial system and it seems obvious that race plays a factor in many of the facets of
...saying through their actions to Aboriginal and Torres Strait Islander peoples, that causing the death of a human being wasn’t a crime. All of this happened because of a police officer’s discretionary decision, which further illustrates that discretionary decisions harm the interests of Aboriginal and Torres Strait Islander peoples. The last point that this essay raised was one that has been valid for over two hundred years. The attitudes of the state towards aboriginal people is reflected in discretionary decisions made by police officers and will continue to be the case until those in power stop trying to do the popular thing and start trying to do the right thing. When all of the evidence is weighed and considered, there can be little doubt that discretionary decisions made by police officers harm the interests of Aboriginal and Torres Strait islander peoples.