Charter Of Rights Limitations
In our respectful submission your honours, we argue that it is essential for all suspects to enjoy the right to legal counsel during interrogation. Both the Charter of Rights and Freedoms and the Oakes test demonstrates that the constitutional rights of having a legal counsel during interrogation should not be violated through law enforcement conduct.
First and foremost, the Canadian Charter of Rights and Freedoms seems to recognize the centrality of the right to retain counsel by stating that everyone “has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” It serves to guarantee that the detainee not only to be informed of his rights and obligations under the law but also to obtain …show more content…
It states that the charter rights are guaranteed, “subject only to such reasonable limits . . . as can be demonstrably justified in a free and democratic society.” The government has to find reasonable ways to achieve or implement its legislation based on the concept of proportionality. Through establishing the reasonableness of the limitation, the objective of limiting the right to legal counsel during questioning seems to be overriding the constitutionally protected right. The limitation on the right to legal counsel during interrogation would be clearly unjustified since its purpose is inconsistent with the values of a “free and democratic society’’. It constitutes a "reverse onus" clause and held it to be unconstitutional because it violated the presumption of innocence now entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. Furthermore, in order for a government action that infringes Charter rights to be justifiable, the Charter right must be impaired as little as possible. However, the limitation on the right to legal counsel during interrogation is a serious infringement of right and freedom, because the police interrogation is more determinative of the outcome of a criminal matter than any part of the trial. What is said in the small interrogation room plays a vital role on deciding the course of any particular
First and foremost, the Canadian Charter of Rights and Freedoms seems to recognize the centrality of the right to retain counsel by stating that everyone “has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” It serves to guarantee that the detainee not only to be informed of his rights and obligations under the law but also to obtain …show more content…
It states that the charter rights are guaranteed, “subject only to such reasonable limits . . . as can be demonstrably justified in a free and democratic society.” The government has to find reasonable ways to achieve or implement its legislation based on the concept of proportionality. Through establishing the reasonableness of the limitation, the objective of limiting the right to legal counsel during questioning seems to be overriding the constitutionally protected right. The limitation on the right to legal counsel during interrogation would be clearly unjustified since its purpose is inconsistent with the values of a “free and democratic society’’. It constitutes a "reverse onus" clause and held it to be unconstitutional because it violated the presumption of innocence now entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. Furthermore, in order for a government action that infringes Charter rights to be justifiable, the Charter right must be impaired as little as possible. However, the limitation on the right to legal counsel during interrogation is a serious infringement of right and freedom, because the police interrogation is more determinative of the outcome of a criminal matter than any part of the trial. What is said in the small interrogation room plays a vital role on deciding the course of any particular