[ql06] Re: PUBLIC: When Can Drivers Be Halted?
- From: "Ken Campbell" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Thu, 13 Nov 2003 17:33:51 -0500
As Sheldon and Adriana's posts show, today's PUBLIC/CONSTITUTIONAL was
lively and thought provoking. That's the kind of stuff that revs my
engine. The highest level constitutional/charter stuff.
The "taxonomy" (to borrow Steve's in-class word) of judicial levels to
"declarations of invalidity" was fascinating. And then to consider the
cases they applied to.
THE TAXONOMY, AGAIN
1. Strike it down (the whole act, as per Big M Drugmarts)
2. Sever (isolate and amputate, some part of the act)
3. Reading Down
4. Reading In
Then we did a bunch of reading-in cases. Controversial, almost all of
them. (Including the damn marijuana case that makes it so hard to plan.)
It is, justly, a big legal debate on whether that is correct.
Anyway, I was delighted to see the discussion of "reading down."
I'd run into the phrase two days ago, in writing the original post to
this thread. Here's what I wrote about the Ladouceur case and Charter s.
8 and s.9:
>PRE-HOLDING
>
> * A justice of the peace found him guilty of driving while
> his licence was suspended, contrary to s. 35 of the
> Highway Traffic Act of Ontario.
>
> * The Provincial Court (Criminal Division) upheld the
> conviction.
>
> * Ontario Court of Appeal dismissed the further appeal. But
> it qualified its opinion, saying there was a Charter
> problem and the police power should be "read down" --
> limited to an organized program of stopping or roadblocks,
> where all vehicles are required to halt for some
> "articulable cause."
>
>SUPREME COURT: 5-4 decision, so close.
>
>Ignore the OCA worry about the Charter. Cory writes:
>[ ... ]
> "There was no need to read the section down
> or to qualify it in any way.
I had noticed the phrase "read it down" and figured what was meant.
But I didn't realize it was part of an articulated array of judicial
options.
Interesting class.
Ken.
--
Ain’t no man can avoid being born average, but
there ain’t no man got to be common.
-- Satchel Paige
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