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CRIM135, Topic #5 - The Canadian Constitution (Part 2)

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Simon Fraser University
CRIM 135
Graeme Bowbrick

TOPIC 5THE CANADIAN CONSTITUTION PART 2III Negotiating Constitutional Change1 Historical Context 1 add a charter of rights 2 patriation of the constitutionseparate from Britain make it exclusively Canadian 3 an amending formulahow to change the constitutionrules to change the rules 2 The Amending Formula Impassehow to change the constitutionfederalsubstantial majority of provincesIV The Constitution Act 1982Introductionadds to old constitutionaddscharter of rights The Charter of Rights and Freedoms a Section 1 Limitation Clause The Canadian Charter of Rights and Freedom guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic societysays all rights are subjected to limitsmainly protects our rights against government actions not private individualsall limits must be prescribed by lawthis section only comes in when you have established that the government has violated your rights o judge decides whether it is reasonable limitThe Oakes TestIn order for government to win a case when they have violated a charter rights they must pass all 4 parts in order to prove it was a reasonable limit 1 Sufficiently important legislative objectiveaddressing a pressing and substantial concern 2 Rational connectionviolating the rights was necessary in achieving the objective 3 Minimal impairmentmust violate the rights minimally do not violate the charter anymore than it is absolutely necessary for you o ie kill bug with thumb or grenade 4 Overall balancebetween effects of the measure and the legislative objective o If objective very big and violation very small government will winR v Oakes 1986SCCb Section 2 Fundamental FreedomsANYONE in canadaFreedom of expression RJRMacDonald Inc v Canada 1994SCCFreedom of religion R v Big M Drug Mart 1985SCC 1
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