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Lecture

LS202 Lecture Notes - Dangerous Offender, Peace Bond, Summary Offence


Department
Legal Studies
Course Code
LS202
Professor
Frances Chapman

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Part 2: Charter: Limitations of Rights
Government and individuals, not between two or more individuals
o You have to have the government involved in some way to use the Charter
Government officials at government agencies
In the Charter, 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 society
o How do we limit people's rights?? Freedom of speech but we have defamation
Charter s. 1 - Oakes Test***** (EXAM)
o Oakes test: possession of a prohibited drug - onus shifts to the defendant to show that they
were not going to traffic the drug
Presumption of innocence-> the onus was shifted
o Step 1: are you infringing the Charter for something important
Pressing and substantial test
Is this something in society that is so important that the rights of an individual
are being impaired
o Step 2: if it is justified there must be a "proportionality test"
3 elements to the proportionality test
Must accomplish only what is stated-> we need to do only what is NEEDED to be
done
Should impair the rights "as little as possible" -> just taking care of one
particular problem
Proportionate effect between the effects of the measures and the objectives
o Oakes - SCC found that s. 8 of the Narcotics Control Act is over inclusive
Just because you have the drug in possession does not mean that you are going to be
trafficking it
A reasonable limit that could be justified in a free and democratic society and s.8 was
struck down
Step 1: is it important enough?? Pressing and substantial? YES
Step 2: were the means proportional? NO
Conclusion - s. 8 is struck down, not saved by s. 1
"Constructive dialogue"
Between the Supreme court and the Legislation; we need to reconsider what we
are trying to do with this legislation
Charter and Oakes
o Judges have this ultimate power - the charter- to strike down any of the legislation made by
the government anytime they infringe the rights of the individuals
o Does it infringe Charter rights - yes, s. 8 infringes the presumption of innocence
o BUT - have court has another power to say that the infringement is ok in this limited
circumstance (we limit hate speech - freedom of expression - but we infringe on that right
everyday as a "reasonable limit" to our rights)
o Oakes case - NOT ok to infringe presumption of innocence
o s. 8 has to be struck down - not a reasonable limit on our rights - not saved by s. 1
o Does s. 8 NCA violate the Charter - YES
o Is it an important thing trying to stop?? YES, drug trafficking
o Does it try to stop drug trafficking in the best way possible?? NO, no rational connection
between possession of drugs and trafficking
o NOT saved by s. 1 - therefore s. 8 NCA s struck down
Confessions
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