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Poli Sci 3NN6 Jan 21, 2014.docx

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Department
Political Science
Course Code
POLSCI 3NN6
Professor
Greg Flynn

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Started on: 2014-01-22 C LASS N OTES FOR : McMaster University, Fall 2013 T UESDAY , JANUARY 21, 2014 ON BOARD SECTION 1 TEST I. Prescribed by Law a. Does law prescribe the limits? - Books II. Reasonable Limits  Oakes Test a. Purpose / Objective i. Purpose of legislation b. Means: Probability i. Rational Connection ii. Minimal Impairment iii. Proportionality R. v. Oakes i. DAVID EDWIN OAKES (Second stage of the SECTION 1 Test) ii.RECALL: 1. Two steps to determining whether a law that violated the charter is justifiable 2. Are the limitations set out in a statue 3. Gov’t action has to be authorized by law 4. It is important for us to know that these are prescribed by law! iii.REASONABLE LIMITS iv. The supreme court gave us in David Edwin Oaks v. FACTS: An individual who was suffering from injuries related to his work place and sought a particular form of pain medication that was “illegal” contrary to the narcotics control act! It just so happened that he ran across police officers and they were concerned about what he had in his possession and so decided to do a search 1. HASHISH OIL 2. CANABIS RESIN 3. He was also in the possession of 619.45 cents vi. When he was asked about the HASH and the MONEY, he stated that he had purchased 10 vials for his personal use for 150 dollars and the other 619 was the remainder of a worker’s compensation check that he had cashed minus what he had paid for his pain medication 1. TRIAL: The control act found that and created an offense that if found in possession of narcotic was deemed in possession for trafficking. a. Difficulty: violates section 7. Of charter of rights and freedom in order to rebuttal that you are in possession of trafficking have to say that you are in possession for your own use. To avoid trafficking have to admit to having committed the lesser charge. Violated section 7 and 11d. b. Agreed that it was a violation, but question whether it was saved under section 1 of the charter of rights and freedom! vii. SET OUTATWO STAGE TEST TO DETERMINE WHETHER IT WAS A JUSTIFICATION 1. PURPOSES / OBJECTIVE a. Whether the law in question, pursues an objective that is sufficiently important to justify limiting a charter right Angie © McMaster University 1 Fall 2014 Started on: 2014-01-22 b. To determine whether there is justification for infringing on rights i. Sufficiently important 1. Not concerned about WHY the gov’t set out this specific legislation 2. Concerned with the purpose of infringing a charter right! 3. In some cases it will be the same 4. Other it will be different 5. WHY INFRINGE? ii. Infringement in relation to our charter rights 2. MEANS & PROPORTIONALITY a. Whether the means employed by the gov’t are justifiable b. Purpose/Objective RJR MacDonald v. Canada - Sought to prohibit Tobacco companies from advertising their products - Justified as being for the purposes of the protection of public health - Argument: if people see advertisement, will buy cigarettes and these hurt the health - Did not however prohibit the sale of tobacco, just banned the advertisement of it. - COURT: Have to focus not on the broad goals, but the infringement - OBJECTIVE: of health protection was not relevant, the objective of the advertisement ban as an infringement against the tobacco companies (infringement against freedom of expression) - Hightlights: Have to look at the purpose of the infringement Vriend v. Alberta (Same sex marriages) - Historically speaking leading to the decision 1988, Alberta human rights code included a number of prohibited grounds of discrimination - Did not include SEXUAL ORIENTATION - Evidence led byAlberta at this trial was that the legislature had debated whether to include sexual orientation as a prohibited ground of discrimination and decided not to do so! - Mr. Vriend was a Homosexual who was employed as a Lab technician in a Christian based high school inAlberta. His sexual orientation came to the light of his employers, and they dismissed him from his position on the basis that his beliefs and lifestyle were incompatible with his employment in the Christian school. o Mr. Vriend sued the school but lost on the Human Rights complaint. As it did not prohibit discrimination on the basis of sexual orientation o Sued theAlberta government! o Alberta Gov’t - The purpose is to avoid discrimination in the Workplace and this is the objective of the act o Court said - No it’s not! Why was there a failure to recognize sexual orientation? Why did you infringe upon the equality rights of individuals with a different sexual orientation? - Define the objective NARROWLY, when it comes to this STAGE. It is in relation to the infringement of the rights, not the broader purpose of the law itself. ***Importance of the Objective! - Are you attempting to realize collective goal of fundamental importance - Whether the concerns are pressing and substantial - Is the purpose pressing and substantial? - Courts can almost assume that legislatures will not infringe on rights out of random, but for a very important reason. Generally speaking they do pass this stage! 2 Started on: 2014-01-22 - Only one case where the supreme court has rejected legislative objective -- R v. Big
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