Union Side Argument
Order Instructions:
Select Union or Management side and answer the following questions.
1. Summarize your opening statement.
2. Identify the strength and weakness of your case.
3. What questions could you ask in cross examination to assist in the presentation of your case.
4. How does the Oak and Dore test impact your position with respect to the no contact order.
5. What legal arguments would you make with respect to the discipline imposed.
SAMPLE ANSWER
UNION SIDE CASE ARGUMENT
Opening Statement
The Canadian Charter of Rights and Freedom confers on individuals the right to exercise freedom and association. The no-contact order violates Detective Sarah Conor’s privacy and infringes on her rights to freedom and association. Ms Conor should not have been punished for exercising her rights. Canada’s Department of Criminal Justice provides that no-contact orders may be issued at any stage in the criminal justice system until the offender has served his or her sentence. Mr Walter White has already served his term for the offenses committed and the police have no obligation to issue a no-contact order once the criminal justice process is complete.
Strengths of the case
- The Canadian Charter of Rights and Freedom protects individuals by allowing them the right to freedom and association. Ms Connor has the right to associate with Mr White without interference from the department. Individuals also have a right to privacy.
- No-contact orders apply during the criminal justice process as provided by Canada’s Department of Criminal Justice. By placing a no-contact order, the Police department violates Mr White’s right because he has already completed his term.
Weaknesses of the case
- Ms Conor failed to honor orders from her employer. Disobedience counts as work misconduct and her employer could use this as a defense for suspending and demoting her.
- In 2014, used PRIME police database to check Mr White’s criminal record. This was later discovered and Ms Conor reprimanded in writing for using PRIME for personal reasons. Ms Conor already has a record of misconduct.
- The police use their intelligence to identify factors that may influence security and case proceedings. In this case, Mr White’s intentions are unknown and there is a possibility that he wants to take advantage of Ms Conor’s position to influence case proceedings.
Cross examination questions examples
- In March 2014, Sergent Benson was assigned to the Professional Standards Unit of the department. Is that correct?
- On March 12, 2014, Ms Conor approached Sergent Benson to ask for advice about dating an individual who has a criminal record, correct?
- We can therefore state that Ms Conor was very open with her relationship with Mr White, right?
- The Agrestic Police Department Policy and Procedure I.C.75 which explains safety concerns for Agrestic Police department does exist, right?
- It is also true that the policy, despite being available has never been circulated to employees, correct?
- On April 22, 2014, the Chief received Mr Wood’s investigative report, correct?
- The report by Wood indicated that Mr White no longer had contact with any known criminals and was therefore not a security concern. Is that true?
- On April 21, despite having a report on Mr White’s clean criminal record, you went ahead and maintained the order against Ms Conor. Right?
Oak and Dore test
The Oak and Dore test does not impact my position with regard to the no contact order. This is because there is a pressing objective in regard to the violation of Canadian Charter of Rights and Freedoms. Secondly, the means is proportional, given that there is a rational connection between the means to the objective, a minimal rights impairment exists and proportionality exists between the objective and right infringement.
Legal arguments
In regard to the discipline imposed, I would make an argument based on the labor law, which calls for progressive disciplinary action and disciplinary actions that are proportional to the misconduct. The Canada Labour Code is a basis for argument and Section 36.1(1) provides that disciplinary action should only be imposed with a just cause. The Canadian Charter of Rights and Freedom also gives individuals rights to freedom of expression and association.
References
Canadian Charter of Rights and Freedoms. Retrieved from http://laws-lois.justice.gc.ca/eng/Const/page-15.html
Canada Labour Code. Retrieved from https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-l-2/latest/rsc-1985-c-l-2.html?resultIndex=1#PART_I_INDUSTRIAL_RELATIONS_3876
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