Charter Of Rights And Freedoms Of Canada: Can Winston Make A Successful Case?

The Charter provisions and Canadian laws relevant to Winston's case

1. The BC Government was concerned about the alarming number of deaths (43 in the past two months) from a new illegal drug called Twitteradia. The deaths were all of people between the ages of 18 and 25, and the drug is used almost exclusively at "raves". The government accordingly passed the Banning of Raves Act. One paragraph of the Act reads as follows: "No group of more than 15 persons between the ages of 18 and 25 may gather together at a venue in which Rave music is played." Ignoring any problems with the wording being too vague or not specific enough, name two legal challenges that could be brought against the Act. What defense or justification might the government be able to raise against those challenges? If the courts struck down the Act, is there any way the government could pass a new Act containing exactly the same provisions?

2. Sarah was a student in a business law class with 23 students. She had what she thought was a bad cold. For three days, she was feeling poorly including sneezing, vomiting and coughing. She went to class on Saturday anyway. She sat next to Firoz, another student and he used her text book and borrowed her pen. She coughed a few times in class. Two days later, Firoz came down with what Sarah had. The doctors later told them both that it was a very rare kind of virus. Sarah’s illness cleared up quickly. Firoz, however, had the normal reaction to the virus and was sick for four weeks and missed three weeks of his self employed worked. Firoz wants to sue Sarah. Analyze his claim in negligence under the four elements necessary for a successful case.

3. Buck Schubert sued his former business partner Leopold Elgar for breach of contract. At the trial, Buck, in testimony under oath, stated "Elgar is a complete fraud and a crook. He was convicted in Ireland of theft before he came to Canada." During the lunch break, as Buck's son, Dmitri, walked out of the courthouse, a reporter confronted him and asked him about the trial. Dmitri said," Well my dad said Elgar was convicted of theft in Ireland, and I agree." The newspaper ran a story with Dmitri’s words the next day. It turned out that Buck was mistaken, and it was another Leopold Elgar who had been convicted in Ireland. Mr. Elgar in this trial had never been convicted of theft. A number of clients cancelled their deals with Elgar because of the story and he sustained considerable losses. Elgar later sued the newspaper, Dmitri, and Buck. What would he sue them for? How successful would he be against each defendant? In explaining the case against each defendant, discuss any possible defenses the defendants might have. 

4. Winston Montgomery-Fletcher walked into Hamish's Haggis Palace Restaurant, owned by Hamish MacDuff. As soon as Winston spoke to ask for a table, Hamish recognized his accent and said “I'll no hae any of you Sassenach (English) swine in my restaurant. You have treated the Scots badly for centuries. We do not serve Sassenach (English) in here. Gang awae (Get out)! ". Winston was jolly well upset and left. Can Winston make a successful case under the Charter of Rights and Freedoms? What about the BC Human Rights Code? Explain your answer. 

5. You have been charged with an offence under the provincial Sport Fishers Act and went to BC Provincial Court yourself to fight it. You brought along a copy of a case from the BC Supreme Court, which contained virtually the same facts as your situation and provided you with a good defense. When you showed the case to the judge, she looked at it and said "I have no use for you illegal fishers, but I must follow this case and find you not guilty." What principle of our legal system does this example illustrate? Explain whether the judge was correct in applying the principle.

6. The Krankenhof family has been involved in a bitter dispute over a will in which the family patriarch left all of his money to two of his children but none to the other three. All the children are of the age of majority. Both sets of children have hired lawyers who have advised their clients that they have a pretty good chance of success if this matter goes to court. The parties agreed to try to mediate the matter and hired a mediator. The mediation agreement, which they all signed, said that the mediator would have two days to do the mediation. Near the end of the second day, the mediator became frustrated at the lack of progress. She finally said. "You are all being unreasonable. I have considered the case and have decided to award the set of children who are mentioned in the will two thirds of the estate. The other third will be divided between the other children. I will draw up the agreement and send it to you for signature." You are a good friend of one of the children who will share in one third of the estate. He is very unhappy and has asked you for your comments on what the mediator did. Comment on the mediator's action giving reasons. 

7. You operate a trucking business in Smithers, BC. An administrative body, the Truck Transport and Carrier Commission, is responsible for regulating the trucking industry in BC including licensing goods and enforcement. Your business has a truck transport licence from them. Today you were served with the following letter that stated: "Take notice that the Truck Transport and Carrier Commission will hold a hearing at 9 a.m. at 517 Balvenie Street, Smithers in two days from the date of this letter for the purposes of determining whether or not your license to operate a trucking business should be taken away." Explain two legal defects in this notice, and their effect.

Bonus Question

8. Wang, Baljinder, Krutov and Co, an accounting firm, prepared some statements to be given to the directors of one of the corporations they worked for. The directors had asked them to prepare these but to keep them confidential as they were for the directors’ use only. One of the cleaning staff saw the statements, improperly made a copy and gave it to his brother-in-law who was a self-styled investment counselor. The brother-in-law made more copies of them and got several of his mostly elderly unsophisticated clients to invest in the corporation. The corporation went into bankruptcy three months later. It turned out the statements had been prepared negligently and gave a much rosier picture of the corporation than was accurate. Explain if the investors have any action against the accounting firm
 

Yes, Winston can make a successful case under the Charter of Rights and Freedoms of Canada. This Charter forms the first part of the Constitution Act 1982. According to Article 6 of the part, every citizen has the right to enter or stay in Canada. it has been stated under Article 15 of the Constitution, every person should be equally treated irrespective of their caste, colour, region, and age (Solomon, Russell).

British Columbia Human Rights Code is a provincial law and it provides the people of Canada an opportunity to equal rights and protect them from being discriminated in case of job, housing or service (Buergenthal, Thomas, et al).

This example illustrates the doctrine of stare decisis. This principle allowed the judges to come into a conclusion regarding any case on the basis of pre-decided judgments. They can stand by decided matters (Anderlini, Luca, Leonardo Felli, and Alessandro Riboni).

However, the process adopted by the judge in this case is not right as the judges should have to examine the nature of the case first and then the degree of persuasiveness should be analysed. However, in this case, this thing had not been followed.

In Canada, mediators are appointed as third party and appointed to resolve any dispute. There are certain characteristics present regarding the process of mediation. A mediator could not take a decision by his own. He has to come into a conclusion on the basis of party’s terms. No party’s interest should be affected by the decision of a mediator (Porter, Libby, and Janice Barry). His decision should be impartial in nature. Therefore, in this case, mediator cannot take decision freely and the nature of the decision should be impartial.

The investors of the firm may ask for qualifying the losses. The shares of the firm can also be disposed of under section 50 (1) of the Income Tax Act. Additionally, cases can also be filed against the firm if it fails to pay the due monies back to the investors. 

Reference:

Anderlini, Luca, Leonardo Felli, and Alessandro Riboni. "Why stare decisis?." Review of Economic Dynamics 17.4 (2014): 726-738.

Buergenthal, Thomas, et al. International human rights in a nutshell. West Academic, 2017.

Porter, Libby, and Janice Barry. "Bounded recognition: urban planning and the textual mediation of Indigenous rights in Canada and Australia." Critical Policy Studies 9.1 (2015): 22-40.

Solomon, Russell. "Reviewing Victoria’s Charter of rights and the limits to our democracy." Alternative Law Journal 42.3 (2017): 195-199.