City has constitutional obligation to provide emergency accommodation to vulnerable persons evicted by private landlord

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (Lawyers for Human Rights as Amicus Curiae) Case No: CCT 37/11 [2011] ZACC 33 (1 December 2011)

The South African Constitutional Court has held that the City of Johannesburg had a constitutional obligation to provide emergency accommodation to vulnerable persons evicted by a private landlord.

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Victorian Court of Appeal considers Charter post-Momcilovic

WK v The Queen [2011] VSCA 345 (30 November 2011)

In a recent appeal from an interlocutory decision of the County Court, the Victorian Court of Appeal held, by a majority of 2:1, that s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is applicable to the interpretation of the Surveillance Devices Act 1999 (Vic). Only His Honour Nettle JA considered the implications of the recent High Court decision in Momcilovic v The Queen [2011] HCA 34.

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Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act

Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011)Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011)

On 28 November 2011, the Victorian Civil and Administrative Tribunal delivered judgments in three matters, each dealing with applications for exemption from the Equal Opportunity Act 2010 (Vic) (EOA) to enable the limiting of employment in specified roles to Indigenous persons.

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Canadian Court says criminalisation of polygamy is a valid limitation on the right to freedom and liberty

Reference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588 (23 November 2011) 

This case was referred to the Chief Justice of the Supreme Court of British Columbia, Canada to determine the constitutionality of section 293 of the Criminal Code of Canada (establishing polygamy as a criminal offence), in light of the Canadian Charter of Rights and Freedoms.

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Admissibility of unsolicited statements made in a police interview

Jude v Her Majesty’s Advocate (Scotland) [2011] UKSC 55 (23 November 2011)

In this case, the Supreme Court of the United Kingdom held that admitting evidence of unsolicited statements made to the police by an accused who had waived his right to access legal advice did not deny him a fair trial contrary to article 6(1) of the European Convention on Human Rights.

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Legal advice not essential before a detainee can be taken to have validly waived the right to legal advice

McGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 154 (23 November 2011)

In this case, the Supreme Court of the United Kingdom held that it is not necessary for an accused in custody to receive advice from a lawyer in order to effectively waive their right of access to a lawyer under article 6 of the European Convention of Human Rights. The Court did observe, however, that where people are vulnerable or the questioning is long and complex, they may need to be given additional protections to ensure they understand the rights in question.

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Investigations of deaths implicating the state must be comprehensive and fully independent

R, Mousa v Secretary of State for Defence & Anor [2011] EWCA Civ 1334 (22 November 2011)

The UK Court of Appeal recently considered the investigation obligation under articles 2 and 3 of the European Convention on Human Rights in the context of an inquiry established by the UK Government to investigate allegations of mistreatment of Iraqis by British troops. The Court found the inquiry did not possess requisite independence because the investigating body was staffed with members of a branch of the military which had been involved in the detention and internment of suspected persons in Iraq during the period under investigation.

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Occupy Toronto and limitations on the right to protest

Batty v City of Toronto [2011] ONSC 6862 (21 November 2011)

In Batty v City of Toronto, the Ontario Superior Court of Justice considered an application challenging the constitutional validity of a Trespass Notice issued to a group of protestors on the basis it violated the protestors’ rights under the Canadian Charter of Rights and Freedoms. It was ultimately held that the Notice was constitutionally valid under s 1 of the Charter, which provides that the rights and freedoms set out therein are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The protestors' application was therefore dismissed.

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Economic and social rights are fundamental, justiciable and enforceable

Osman v Minister of State for Provincial Administration & Internal Security and Ors eKLR [2011] (16 November 2011)

The High Court of Kenya has held that the forced eviction of 1,122 people was a violation of the right to adequate housing enshrined in the Kenyan Constitution and a number of other rights, and made injunctions compelling the government to return the evictees to their land and to reconstruct reasonable housing for the community.

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Warrantless search of home by police justified exclusion of evidence from criminal proceedings

R v Larson, 2011 BCCA 454 (10 November 2011) 

In this case, the Court of Appeal for British Columbia overturned Mr Larson's conviction for unlawful production of cannabis under s 7(1) of the Controlled Drugs and Substances Act, SC 1996, c 19. The decision was based on the finding that the warrantless search of Mr Larson's residence, which uncovered his marijuana growing operation, was unlawful under s 8 of the Canadian Charter of Rights and Freedoms, which confers the right “to be secure against unreasonable search or seizure”. Evidence obtained in this and subsequent searches was excluded by the court under s 24(2) of the Canadian Charter, which provides for exclusion of evidence obtained in a manner that infringes any Charter rights if admission of the evidence would bring the administration of justice into disrepute.

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