Test- Charter of rights (Canada)

(Note: This is a test essay written for ABSAS, an agency who claim to provide essays/ dissertations, theses for university students. The agency did not bother to give feedback even after 2 weeks and that gives me the liberty to post it here.)

The hypothetical Law question relates to charter of rights available to Canadian citizens and the answer is here.

The issue on appeal is whether prohibiting sales or renting of obscene material infringes the right to freedom of expression.

The respondent Mr. Garcia contends that s. 163 (1) (2) of the Criminal Code, 1985 infringes his right to freedom of expression provided by s. 2 (b) of the Charter of Rights and Freedoms (Charter) and that the Crown’s appeal against his acquittal on 242 counts of selling obscene material is not tenable.

Held: The appeal is allowed. The case is remitted for fresh trial of the 242 acquittals. The Charter under s.1 justifies legal prescription of reasonable limits on the rights afforded by     s. 2(b).

Discussion

The facts of the case are startlingly similar to R. v. Butler (1992). While logically, an analogous decision could be entered, a brief analysis of the present case is germane. The courts adjudicating constitutional questions may revisit earlier decisions under the principle that along with the need to maintain “finality and stability” of the law, the courts must have flexibility to comprehensively discharge their role. The review may be undertaken only when there are “significant developments in law” or circumstances that “fundamentally shift parameters of the debate” (Canada (Attorney General) v. Bedford, 2013).

The question whether there are major developments in law is answered in the affirmative. It is true that the courts have viewed obscenity through a different lens since Butler (1992). An earlier judgement allowed the argument that as the aims behind banning child pornography and adult pornography are different, the notions applied when scrutinising child pornography are not appropriate when examining adult pornography. This argument is not strong since the court went on to observe that combining sex and violence or degradation and dehumanization “are likely to cause harm” (R. v. Smith, 2005). Effectively, this opens the Pandora’s Box on what constitutes harmful pornography and what is not, a situation which leads to subjective assessment.

Another argument is that the degree of an infringement must be assessed to determine whether the law is “catching too much” (R. v. Sharpe, 2001). The inference is it must be seen whether obscene material creates a hazard for the society. A conduct can be categorised as indecent criminal activity if it is proved that it poses a considerable risk to individuals or society (R. v. Labaye 2005). Studies (Dept of Justice, 1985) show that pornography promotes an unfavourable mind-set and affects gender equality.

Finally, there is palpable tension in holding that the public is not affected when a conduct is restricted only to members of a private club (R. v. Labaye 2005). After all, the private members will return to mingle with the public and can then pose a hazard. The private use concept is equally questionable (R. v. Barabash, 2015). The Charter does not distinguish between private and public conduct.

As such the respondent’s contention that he was operating but a private club restricted to members is not valid. The case is returned to the trial court for retrial of the 242 acquittals.

References

Canada Dept of Justice. (1985). Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution. (Report No. NCJ 131616). Retrieved from https://www.ncjrs.gov/pdffiles1/Digitization/131616NCJRS.pdf

Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101

Charter of Rights and Freedoms (The Constitution Act, 1982

Criminal Code, R.S.C. 1985, c.46 (Criminal Code, 1985)

R. v. Barabash, 2015 SCC 29

R.v. Butler [1992] 1 SCR 452

R. v. Keegstra, [1990] 3 S.C.R. 697

R. v. Labaye 2005 SCC 80

R.v. Sharpe 2001 SCC 2

R. v. Smith, 2005 CanLII 23805 (ON CA)

 

 

 

 

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How to manage troubled adoptions.

Professional adoption help has a way of getting the shine back for families with troubled (and troublesome) adoptive boys. Around 20% of adoptions run into varying degrees of rough weather sometime or other and in most of these cases, individual families can’t simply cope.

Neglect, violence, drug and other abuse that the boy has suffered with the earlier family could still be tormenting the young chap. He may become aggressive or meek, stubborn or passive, hyperactive or too lazy and in extreme instances, even violent. The kid is reckless, opposes everything, damages things at home or injures himself or siblings. Disabilities not detected earlier may surface which again is a situation that families can’t manage on their own.

It gets to be so, sometimes you may even wish that someone takes the boy away. Here is a brief on how a comprehensive program during which the boy lives temporarily at specialized adoption assistance facilities does help both the boy and the family.

Holistic Development:

Depending on the severity of the challenges, adoption help provides the boy with three kinds of care. While therapy takes care of the disabilities, counseling brings about positive changes in behavior, academic training makes sure that the boy grows up into a confident adult. He becomes person who syncs with the family and society on equal footing.

Federal Funded Help:

Admittedly, such trained and personal help with adoption calls for financial commitment and for those families who need, the federal government funds support programs. The adoptive boy can be placed at a residential facility for up to 18 months where he receives skilled attention, therapy and appropriate education. Both the family and the child are involved in a structured adoption training course that makes them ready for reunited and rejuvenated life.

How the residential program helps:

When the kid goes to live temporarily at the training academy, you get time to recharge, to look at life from a new perspective and regain the confidence. You now know what to do right. The kid has happy life; he joins groups of kids of similar age, learns responsibilities and what it is to share. He too sees life from a new angle. Learning new skills, going on hikes, swimming, skating, participating in cultural and team activities will enrich his life. During holidays, he may even visit Frisco museums and see Angel Island. Simply put: the life is now a big fun.
And, he receives academic coaching, a valuable asset that replaces the earlier self-doubt and consequent unruly tendencies with sense of dignity and achievement.

Specialist Academy, California:

For over 50 years, Specialist academy has been providing exceptional adoption help in California. While healthy food, good accommodation and personal supervision are the norms, a thoughtful academic program improves behavior and trains your boy in life skills. If he is one with special needs, he is trained in alternate skills and to overcome the challenges.

We reunite the adoptive families.

Is failed adoption the end of the road?

California failed adoption percentage is anywhere between 10% and 25%! This estimate is disturbing news, particularly for families for whom the expected bundle of affection is turning out to be a pack of problems. A specialist Academy helps you to deal with troubled adoptions through guidance and temporary residential care for boys in the 6-14 age-group.
When is an adoption unsuccessful? Simply put, if the adoptive parents and the child do not connect emotionally and the parents wish they could get the child placed elsewhere, the adoption has failed. Many reasons play a key role and create tensions; may be the parents never realized what they were taking on and are now unable to cope with caring for the child day in day out, health problems, tutoring, and costs. Or the child is simply just ‘one of a kind’.
As wondering why and what went wrong doesn’t serve any meaningful purpose, here are a few tips on dealing with failed adoption.

Look for signs:

It is not that every adoption is problematic. Being too sensitive and emotional can lead to mistaking childish tantrums for behavioral problems, more so if you don’t have earlier parenting experience. Check if there’s a growing distance between you and the child, the child does not want to spend time with adopted parents and siblings, is morose or hyperactive; some children show worrisome tendencies: stealing, injuring self or others, damaging things and similar disorderly behavioral problems and even violence. You feel that it’s impossible to continue and wish that someone else takes care of the child. These signs signal a possible failed adoption.

Know the difference:

There is a vital difference between disrupted and dissolved adoptions. Disruption is the first stage in troubled adoptions, meaning there’s still scope and hope of retrieving the situation. Of course, if the parents or the old-enough adoptive child feel that it’s an absolute no-go and legal action terminates the arrangement then it’s a dissolved adoption.

Make a Difference:

If faced with disrupted adoption, you can make a difference through timely action. Boys who were victims of violence, neglect, drug or other abuse are prone to anxiety and depression syndrome. When individual attention and counseling don’t improve the situation, expert attention is the solution but is obviously expensive. Federal funded failed adoption support through Adoption Assistance Program helps in tiding over the financial aspects up to 18 months.
You can entrust the child to residential care for a while at the specialist academy, where specialists provide therapeutic care and behavioral counseling. As the academy works with the boy as well as the family, the chances of putting the adoption back on the rails are bright. The boy becomes a happy member of a group, enjoys companionship, nice food and accommodation. While selected boys get to join sea cadet course, all learn through participative activities, athletics, cultural programs and adventure hiking.

The specialist academy has the right environment to make a failed Adoption work again and reunite the family.

Law of Trusts and the three certainties

Introduction

An in-depth knowledge of methods and techniques involved in constituting express trusts assists practitioners to create proper “property management vehicles” and in providing better advice to the clients on management of property.
Given that the distinction between them is so fine, it is easy to misconstrue a trust and contract or to misinterpret personal and proprietary rights. A meticulous appreciation of the core principles of law on express trusts is essential to resolve the challenges commonly faced in property rights (Alastair Hudson, ‘Advanced Equity and Trusts’.)

The modern businesses require funds on a far greater scale than in the olden days.Newer instruments such as a repo facilitate faster and less expensive finance because of which the core idea of trusts hasgained commercial significance (Alastair Hudson, Equity and Trusts, (7 edn, Routledge 2012) and has a potential role in meeting such needs as was seen in Mills v Sportsdirect.com Retail Ltd [2010] EWHC 1072 (Ch).

Outlining the context of a trust vis-à-vis its aims and circumstances which make it contentious provides a keener insight into a discussion of the ‘three certainties.’ The significance of the ‘three certainties’ comprising intention, subject matter and objects is bound inalienably with the primary purposes of forming a trust and its inherent contentious potential.

In its simplest form, a trust is created by the settler who expects to be absent, incapacitated or death.Property may be put in trust in situations where the beneficiary may not be in an immediate position to manage the property. Shielding against contingencies, managing problems with probate, protecting the corpus while benefiting a wilful beneficiary, or providing funds for a charitable trust are some of the other reasons. Another major reason and one that attracts specific attention of the HM Revenue and Customs is what is popularly referred to as ‘Estate Planning’ or ‘Tax reasons’ meaning a legally accepted method for reducing the tax burden.
The hardest bone of contention is raised by claimants with real or imaginary interest in the assets, hope to be beneficiaries and contend that a trust exists and that the property forms the subject matter of that trust. This scenario prompts bulk of the litigation under The Perpetuities and Accumulation Act 2009, Trustee Act 2000, Insolvency Act 2000 and any other legislation thought to be convenient by litigants.

However as discussed earlier, trust law becomes intricate when mega-sized funds, business transactions and insolvency compound the issues. As illustrated by Re Kayford [1975] 1 WLR 279), a trust may be created to protect purchasers’ interests in commercial transactions. The fundamental characteristic of a trust is the division of ownership into legal and equitable interests (Mohamed Ramjohn, Text, Cases and Materials on Equity and Trusts (4th edn, Routledge-Cavendish 2008).
It is against this background that it becomes essential to conclude whether a trust exists and the law on the three certainties is the primary test to determine whether it is a trust.

The three certainties:

Langdale MR laid outthe three certainties that characterise a trustlong back in Knight v Knight [(1840) 3 Beav 148] There should be certainty as to the intention; subject matter; objects.

Certainty of intention:

The settler must have clearly intended to create a trust though no specific form or wordings are necessary except when the subject matter is land. Courts construe the nature by the parties’ conduct and the circumstances. The rule applies irrespective of whether the mater pertains to a Paul v Constance ([1977] 1 WLR 527) like domestic situation or a large corporation’s insolvency discussed in Eurosail (BNY Corporate Trustee Services Limited v Eurosail [2013] UKSC 28, http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2011_0199_Judgment.pdf.)

Facts of Mills v Sportsdirect.com [2010] EWHC 1072 (Ch): The intricacy of circumstances in this case presents an opportunity to appreciate the law of intention. Sportsdirect transferred proprietary interest in a set of securities in favour of KSF, an entity of which Mills was an administrator. The understanding was that KSF would assign the interest to Sinjul Nominees, a third party who was to act a mediator or a kind of escrow custodian. When called upon to do, KSF was to restore the securities to Sportsdirect. KSF went insolvent and SD sued claiming a trust on the shares with Sinjul. In a normal straightforward transaction, it would not have stood a chance but here Sinjul was holding the securities ‘in trust’ and so SD recovered its rights.The court noted a clear certainty of intention of trust despite absence of written articulation as Sinjul had no part to play in the transaction except to have the custody of the securities until called upon to give them back.

Certainty of subject matter:

Subject matter is the property or asset forming the trust fund. It should be manifestly possible to identify the subject matter. A trust becomes invalid if the property and other property cannot be segregated (Re London Wine Co (Shippers) Ltd [1986] PCC 121.)
However courts have made exceptions, where the trust property is intangible. All the ordinary shares of a company are identical and non-segregation of trust property and other property is immaterial in such instances (Hunter v Moss [1994] 1 WLR 452). Hudson notes that while academics questioned the principle, opposing rulings in London Wine and Hunter v Moss have occupied serious attention in the aftermath of the largest corporate collapse of Lehman Brothers and similar insolvency cases (Alastair Hudson, Equity and Trusts, (7 edn, Routledge 2012) p88.)

Certainty of objects:
Even from a common sense interpretation, this principle is easy to understand. A trust must be in favour of an identifiable beneficiary. There should at least be a formula that the trustees can use to establish who the objects are. A trustee would be liable if the property is distributed to those who are not the objects.
“Class Ascertainability Rule” expressed in IRC v. Broadway Cottages Trust ([1955] Ch. 20 (CA)) was applicable in the case of fixed trusts, which stipulates that a trust becomes void if it is not possible to prepare a complete list of all beneficiaries (Norson B Harris, 2003 ‘Guernsey: The Three Certainties Or: When Is A Trust Not A Trust?’ The Kensington.) This position has been reversed in McPhail v Doulton ([1970] UKHL) and ‘individual ascertainability test’ is the prevailing norm for discretionary trusts (Paul Todd, ‘IRC v. Broadway Cottages Trust’, http://pntodd.users.netlink.co.uk/cases/cases_b/broadway.htm)
Facts: Baden the settlor created a non-charitable trust in favour of staff of a company and the trustees had discretion to distribute need-based aid to the present and past employees. The trust deed was challenged on the ground that it is impossible to draw up a complete list of beneficiaries.

Relaxing the rigour of earlier stipulation Lord Wilberforce formulated the ‘individual ascertainability test’. “Can it be said with certainty that any given individual is or is not a member of the class?” The judgment means that when it is possible to ascertain one or more beneficiaries, they should not be denied merely because it is not possible to discover rest of the beneficiaries.
The judgment has been criticised but I am of the opinion that it is fair and more germane to large commercial transactions.
Re Harvard Securities ([1998] B.C.C. 567) demonstrates how the earlier approach of ‘Class Ascertainability’is rather mechanical and would defeat the interests of beneficiaries. Unscrupulous businesses would have the opportunity to escape by taking recourse that it is not possible to identify the entire group of beneficiaries.
Facts: On Harvard Securities going insolvent, some of the customers claimed a trust on ‘some of the securities’ which were not segregated. Neuberger J allowed the claims of the customers but appeared to do so with reluctance. He said “the decision in Hunter is binding on me.”

To be continued

(This is an extract from academic essay on the Three Certainties and their effect on Law of trusts. The client felt that the language was too complex and I gave her a different version. But, I like what I wrote – obviously and so am sharing it with you all. Only request: please bear with the way references are placed as footnote plug-in is not available in the free version.)