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PHL271H1 (115)
moreua (12)
Lecture

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6 Pages
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Department
Philosophy
Course Code
PHL271H1
Professor
moreua

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State is only allowed to interfere if the harm is harming others. This is the
harm principle. The harm principle isn't really accepted in Canadian law.
1.R vs. Malow Levine, R vs Caine
1.Background and case facts
2.Majority and should the harm principle be recognized in PFJ. No
3.Dissent and should the principle the law cannot
2.Equality-what is it and why value it?
1.Why do we care about it?
2.Charles Taylor
1.Politics of equal dignity
2.a
A1.
The questions was whether the government could criminalize the mere possession of
marijuana. Simple possession of marijuana for personal use. And also not for medicinal
use. Its not drug trafficking. If the state chooses to criminalize that, that violate
Canadians' liberty rights under the section 7.
Levine-freedom fighter
1.Offense in the criminal code for the offense has with it the possible sentence of
imprisonment
2.Both Levine and Caine argued that their section 7 was violated
3.Caine said it was because he could be imprisoned
4.Levine said that the criminalization that was central to his lifestyle, was a violation
of his liberty
5.Section 7
oRight to life liberty and security of the person and the right not be deprived
thereof except in accordance with the principles of fundamental justice
oGives us the right to all these things but it has limitations built into it
And these limitations are given by whatever principles the courts see
as part of fundamental justice
If that deprivation is in accordance with the principles of fundamental
justice, that limitation is okay
Gives a large area of discretion to judges
oIn addition to the internal limitation provided by the principles of
fundamental justice, there is also an external limitation is section 1.
Guarantees the rights only in reasonable limits that can be justified in
a free and just society
Limited by what the court things can be demonstrated as okay in a
free and just society
oSection one allows the government to say that there are certain cases when
its okay for people to be deprived of something
oSection one means that when we talk about section 7, they're not absolute
www.notesolution.com
A2.
6.Caine and Levine wanted to run the following argument
7.Caine: harm principle is a principle of fundamental justice under section 7 and if
that's true and if possessing marijuana for personal use, doesn't harm others, its seems
that attaching imprisonment to this offense interferes with my liberty interferes in a
way that's not in terms with the principles of fundamental justice
oSo then that posed the question to the courts whether the harm principle is a
principle of fundamental justice
8.Whether you think negative liberties are protected under section 7 or positive
liberties.
9.Levine: trying to use Mill's appeal for the need for positive liberty-that's the kind of
liberty interest that section 7 protects
oTrying to argue that his smoking of marijuana,, it was his way of living and
autonomous life and it was central to his lifestyle
10.The court doesn't' rule out the idea of section 7 protecting positive liberty
oPg 328- basic choices going to the core of going to what tit means to enjoy
the...
oThere may be certain choices that go to the core of what it is to enjoy the
individual dignity which are protected under section 7
oBUT this particular choice isn't a basic choice of what it means to enjoy
individual dignity
oWHY?
Seem to characterize the smoking of pot in a particular way.
They make it seem like a silly recreational activity
But that's not taking Levine's case very seriously because he's saying
that this is central to his alternative lifestyle
Whether or not you think this is ridiculous, this is really his idea of
what he thinks is a good life
oCourt also says that the constitution cannot be stretched to whatever an
individual says is central to his lifestyle
This is a problem when trying to give positive liberty
The minute state tries to recognize positive liberty only individuals
can say what is central to their lifestyle
oAlternative argument that the imprisonment is a problem
11.Should the harm principle be recognized by a PFJ?
oMany thought no
oDissent felt that a narrower principle should
12.What is the criteria for recognizing something as a PFJ?
oAddressed this by appealing to other cases like the motor vehicle cases pg 331
oPrinciples that are vital or fundamental to our societal notion of justice are
PFJ
oMust not be so broad that they're vague, must be able to be identified
oHas to be something that's generally accepted by reasonable people
oAnd it has to be capable to be identified and recognized in a precise way
www.notesolution.com

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Description
State is only allowed to interfere if the harm is harming others. This is the harm principle. The harm principle isnt really accepted in Canadian law. 1. R vs. Malow Levine, R vs Caine 1. Background and case facts 2. Majority and should the harm principle be recognized in PFJ. No 3. Dissent and should the principle the law cannot 2. Equality-what is it and why value it? 1. Why do we care about it? 2. Charles Taylor 1. Politics of equal dignity 2. a A1. The questions was whether the government could criminalize the mere possession of marijuana. Simple possession of marijuana for personal use. And also not for medicinal use. Its not drug trafficking. If the state chooses to criminalize that, that violate Canadians liberty rights under the section 7. Levine-freedom fighter 1. Offense in the criminal code for the offense has with it the possible sentence of imprisonment 2. Both Levine and Caine argued that their section 7 was violated 3. Caine said it was because he could be imprisoned 4. Levine said that the criminalization that was central to his lifestyle, was a violation of his liberty 5. Section 7 o Right to life liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice o Gives us the right to all these things but it has limitations built into it And these limitations are given by whatever principles the courts see as part of fundamental justice If that deprivation is in accordance with the principles of fundamental justice, that limitation is okay Gives a large area of discretion to judges o In addition to the internal limitation provided by the principles of fundamental justice, there is also an external limitation is section 1. Guarantees the rights only in reasonable limits that can be justified in a free and just society Limited by what the court things can be demonstrated as okay in a free and just society o Section one allows the government to say that there are certain cases when its okay for people to be deprived of something o Section one means that when we talk about section 7, theyre not absolute www.notesolution.com
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