Law 2101 Lecture Notes - Lecture 2: 2-Step Garage, S33 (Zvv), Legal Clinic
3 May 2018
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Thursday, October 19, 2017
Law Federalism Oct 19
Section 1!
-Cnadian charter of rights and freedoms guarantees the rights and freedoms set out
in it subjected only to such reasonable limits prescribed by laws as can be
demonstrably justiļ¬ed in a feee and democratic society!
ā¢Second part starting with word subject!
-First impportant word is only!
ā¢The limitations on these rights are narrowly interpreted!
-Seoncd is reasonable limit!
ā¢Has to do with what people themselves think is appropriate and rational in a
democratic society!
ā¢Limitations put on have to be wound up accepted and appropriate in those
circumstances!
-Can shout ļ¬re in crowded theatre!
-Third is prescribed by law!
ā¢Interpreted by SCC as laws that are not vague or open ended!
ā¢Vague law or arbitrary law is not āprescribed by lawā!
-Fourth is Demonstrably justiļ¬ed!
ā¢High burden of proof on government for the excpetion being argued to be
narrowly deļ¬ned!
-Free and democratic society!
ā¢To look at other societies that are similar to us, will look to these countries to
see if they have put limitations of these rights being litigated in court!
-What is the way we do charter reasoning!
ā¢Whenever there is charter challenge (group, individual, coorporation, province)
says some government body has breached the charter by statues, policies or
actions. There is a 2-step process analysis.!
-First is to look at the right in question has been violated by the government in
question s.2 or s.7-15!
ā¢The burden on proof rests on the individual or the organization going against
the government body!
#1
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Thursday, October 19, 2017
-The second is the honest then shifts. Under the second half of the charter
analysis the honest shifts to the government and they argue s.1 !
ā¢You found we violated something in charter but under s.1 Violation is justiļ¬ed
and there Is and acceptation to the rule!
The purpose of section 1!
-Gaurentees rights!
-Allows rights to be limited by state action!
-Means rights are not absolute!
-Establishes justiļ¬cation requirement for limits on rights!
Requirment sod s1!
-Limits must be!
ā¢Prescribed by law!
ā¢Reasonable!
ā¢Demonstrably justiļ¬ed in a free and domecratic society!
Limits must be prescribed by law!
-Legal authorization is required to limit rights!
-Authorization may come from legislation, regulation, common law, necessary
implication arising out of law, or binding policy!
-Limits on rights must be suļ¬enctly speciļ¬c in order to be prescribed. Cannot
be vague
Oakes Test!
-Limits on rights must be:!
-Established for proper purpose
ā¢Was it for pressing and substantial purpose
-Rationally connected to achieving that purpose!
ā¢Whether or not there is a connection between the overall purpose the legislative
means chosen to limit the particular right!
#2
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Document Summary
First impportant word is only: the limitations on these rights are narrowly interpreted. Seoncd is reasonable limit: has to do with what people themselves think is appropriate and rational in a democratic society, limitations put on have to be wound up accepted and appropriate in those circumstances. Third is prescribed by law: interpreted by scc as laws that are not vague or open ended, vague law or arbitrary law is not prescribed by law . Fourth is demonstrably justi ed: high burden of proof on government for the excpetion being argued to be narrowly de ned. Free and democratic society: to look at other societies that are similar to us, will look to these countries to see if they have put limitations of these rights being litigated in court. What is the way we do charter reasoning: whenever there is charter challenge (group, individual, coorporation, province) says some government body has breached the charter by statues, policies or actions.
