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Greg Flynn (95)
Lecture 7

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Political Science
Greg Flynn

• If you are born outside of Canada, you can still apply for Canadian citizenship; it was not always this way ◦ Before 1977, there were two different standards: if you were born to a Canadian father and non-Canadian mother, you were given automatic citizenship upon birth registration; however, if you were born to a Canadian mother and non-Canadian father, you had to apply for citizenship and pass the security check ◦ The reason why this law was put into place was because, before 1977, young men sent overseas as soldiers would impregnate women ▪ Canadian government saw it as a moral obligation to recognize these children and gave them automatic citizenship; they tried to justify the other instance under section 1, screening the possibility of dangerous individuals (in other words, the children of Canadian mothers were seen as a threat to national security; Flynn hints at the blatant favouritism towards men here) ▪ The federal government carried this argument all the way to the supreme court, who saw no rational connection for the difference in treatment between children of Canadian and non-Canadian mothers; the provision was struck down as failing the Rational Connection component of the Section 1 test ◦ The courts required that the law impair the right no more than it is necessary to achieve the objective set out by the government; the government has to use the least drastic means available to achieve its goal- this is the Minimum Impairment test ▪ Most cases filed under section 1 fail at this point in time; if they get past this stage, it becomes very clear that the government is going to win the case, and there are some circumstances where there is a clear recognition that even erroneous impairments on our rights as citizens occur- it all depends on their relation to the objective ▪ It must be a minimum impairment, meaning the least impairing • Case example: a followup to the Big M drug-mart case; after the Federal government's law was struck down, the Provincial government stepped in and called for a common day of rest on Sundays (not to deal with the declining moral fabric of our society that is the provisional criminal code), as a matter of employment, it was important that employers and employees be granted at least one day off once a week to spend on recreation; therefore, Ontario passed a law saying that businesses could not operate on Sundays, with an exception existing for smaller retailers or stores, where if the store had less than 7 employees and less than 5000 square ft of space, then you could operate on Sundays; the law is aimed at targeting the big major employers • Edward Books was charged with violating this provision; in the context of the section 1 test, Justice Dixon said that the infringement had to impair the right as little as reasonably possible (the least drastic); there must be some deference to the legislature and that the court will not substitute legislative opinions as to where to draw the precise line; lesson: the courts will not hold anyone to a 'standard of perfection' (e.g., cherry-picking what was the least drastic means, some leeway is required);Allows government to address local problems of concerns (i.e., what is a problem in Ontario might not be a problem in BC), and so the Supreme Court is not willing to impose a cross-provincial standard on what is considered 'least drastic' or not, the government need onl
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