POLI 324 Lecture 5: september 27th
15 Jun 2018
School
Department
Course
Professor
POLI324
Class September 27th
Fundamental Freedoms: expression and Tobacco Advertising
Lecture objectives
• To consider the creation of an important judicial test:
• Section 1: the reasonable limits clause.
• Rights violated the statute is unconstitutional, but then the court has to decide
if the liit is easoale, if it is the the out doest hae to stike the la.
• Probably the most important clause of the Charter
• To oside the Couts appoah to judiial eie ad the ostutio of Chate ights.
• Freedom of Expression – section 2(b) of the Charter
• The largest broadest charter right ever developed by the Supreme Court
• To consider legislative responses to judicial invalidation regarding Tobacco Advertising:
• Charter dialogue (Hogg), Legislative Compliance (Huscroft), or Legislative
Defiance (Kelly)
• RJR v. Macdonalds; the court considers whether parliament has the
constitutional ability advertising as a form of expression by tobacco companies.
The tobacco control act.
• 1985 results in invalidation, parliament respond with The Tobacco Act, and that
point this legislative respond is upheld by the court.
Lecture Outline
• This unit will be divided into the following sections:
1. Section 1 – the reasonable limits test
2. Freedom of Expression and Tobacco Advertising.
3. Charter Dialogue and Legislative Responses: Tobacco Product Control Act to Tobacco Act.
1.Section 1: The Oakes Test
• Although a Charter section, the test for determining the reasonableness of legislation that
infringes the Charter, is a judicial test.
o The Oakes test for determining reasonable limits created by the Supreme Court
of Canada in R. v. Oakes (1986)
o Established a test for evaluating the reasonable of a limitation. The court
fashions a test.
find more resources at oneclass.com
find more resources at oneclass.com
• The application of the Oakes test is considered to be a significant source of judicial power and
empowerment.
• The original test: 1986-1989: in 1989 the court revises the Oakes Test. Why did the court revise
within 3 years the Oakes test.
• Context: 1986 case, involving the challenge to the Narcotics control Act. The
constitutionality of the Narcotic Control Act: Section 8→earnest provision A reverse
eaest poisio, ou ae guilt of ou atios, util poe otheise. Thats hat
being challenged here. Beig pesued to eig guilt, the dot hae to poe it.
• Punishment for trafficking was 7 years of prisons.
• This conflicts with Section 11 (d) of the Charter of rights. Narcotics act was an act
infringed before the Charter was put in place.
• Section 11 (d) protects the right to be presumed innocent until proven guilty, according
to the law in a fair and public hearing.
• Deisio: ist the outoe of the ase; the out delaes it uostitutioal, ut the
question is, is it reasonable in a free and democratic society. What comes out of it is the
Oakes Test
• According the supreme court of canada it was not a reasonable limit on section 11
d:possessio of a sall o egligile uatit of aotis doest suppot taffikig.
It would be unreasonable to presume someone to be trafficking when carrying only a
sall aout of aotis thats ho the out disisses the hages agaist Oakes.
• What comes out of it: the Oakes test. Does the supreme court decide whether an
infringement is reasonable.
• The courts eventually are determining whether or not if a right is infringed.
Oakes Test
Legislative Objective
Limited and Proportionality
Step 1
Q: Does the legislative instrument represent a
pressing and substantial legislative objective
that justifies an infringement of a Charter right?
(asked by the supreme court)
A: If es is the liitatio a popotioal
response? –the court moves to the
popotioalit test
What is the court asking: there must a sufficiently
objectives to limit a right?
Steps 2 to 4
the popotioalit test
2. Legislative means chosen must be
rationally connected to the legislative
objective.
3. Rights must be minimally impaired --
really difficult for government to
demonstrate the reasonableness
4. Proportionality must exist between the
legislative instrument and the
infringement.
find more resources at oneclass.com
find more resources at oneclass.com
A government must satisfy all parts.
Original approach to Oakes.
• Although intended to be a safety valve and to respect legislative choices, the original approach
to Oakes (1986-1989) largely centred on the question of minimal impairment.
• A difficult standard to satisfy – easy to contemplate less restrictive limitations.
• Only 2 of 10 initial attempts to satisfy section 1 accepted by the Supreme Court of Canada
Oakes TESTS (not test)
• Approach to section 1 reconsidered by the SCC in Irwin Toys Ltd. v. Quebec (1989). Another case
based on freedom of expression. Quebec prevented toyed companies from advertising toys
advertisement before 6pm. The toys companies challenged it. Involves whether advertising on
products targeting children, were a reasonable limit on the freedom of expression. The Court
found that although was being infringed it is deciding that it wast ueasoale.
• Splits the test into multiple parts.
• Recognition that a rigid approach to section 1 demonstrated an insensitivity to the policy
context:
o section 1 should be applied differently depending on the policy context of the
legislation in question.
Question:
Eidee of the “upee Cout of Caadas aeptae of multiple guardians of the constitution?
Branches of the Oakes test
After Irwin Toy, the Oakes test changes from being a single test applied in all contexts, to a bifurcated
test (two branches) applied in specific policy contexts.
Branch 1
State as singular antagonist (The crown vs.____)
Means criminal legislation, again the courts has created two branches of the oakes test, the first thing is
if the policy is at the roots of the legislation. Distinction between criminal or noncriminal policy. This is
where the court has its expertise.
Branch 2
Balancing of interests approach
This largely is in the areas of social policy
Courts are legal actor, evaluating or constructing rights and action through judicial review.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
To consider the creation of an important judicial test: To (cid:272)o(cid:374)side(cid:396) the cou(cid:396)t(cid:859)s app(cid:396)oa(cid:272)h to judi(cid:272)ial (cid:396)e(cid:448)ie(cid:449) a(cid:374)d the (cid:272)o(cid:374)st(cid:396)u(cid:272)tio(cid:374) of cha(cid:396)te(cid:396) (cid:396)ights. Freedom of expression section 2(b) of the charter. The largest broadest charter right ever developed by the supreme court. To consider legislative responses to judicial invalidation regarding tobacco advertising: charter dialogue (hogg), legislative compliance (huscroft), or legislative. Defiance (kelly: rjr v. macdonalds; the court considers whether parliament has the constitutional ability advertising as a form of expression by tobacco companies. The tobacco control act: 1985 results in invalidation, parliament respond with the tobacco act, and that point this legislative respond is upheld by the court. This unit will be divided into the following sections: section 1 the reasonable limits test, freedom of expression and tobacco advertising, charter dialogue and legislative responses: tobacco product control act to tobacco act. The application of the oakes test is considered to be a significant source of judicial power and empowerment.
