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Canadian charter3

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Western University
Law 2101
Mysty Sybil Clapton

Reasonable Limits on Rights Lecture #3 October 8, 2013 ***Section 1*** The Canadian Charter of Rights and Freedoms 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. • Not absolute guaranty Purpose of section 1:  Guarantees rights; by the state, government; they have to respect your rights  Allows rights to be limited by state action  Means rights are not absolute  Establishes standard of justification for limits on rights; cant be too broad or too loose - If the right covers a lot of ground, the state will want to be able to limit; ex: defamation of character; you can sue; cant say you have the charter right of free expression; reasonable limit on free speech - In general, rights are not absolute. They all have reasonable limits  Free from cruel and unusual punishment: cant be reasonable under section 1; cant say terrorists can be tortured until they confess Requirements of section 1: Limits must be  Prescribed by law  Reasonable  Demonstrably justified in a free and democratic society Limits must be prescribed by Law • Legal authorization is required in order to limit rights; the police cant just say I’m limiting your speech, they have to have a law (by passing legislation) (or policies, regulations) that allows them to do that • Authorization may come from legislation, regulation, common law, necessary implication arising out of law, or binding policy  Law must be sufficiently specific - must not be too vague - must be ascertainable/intelligible **The Oakes test**  Limits on rights must be established for a proper purpose; state must have a good reason  Must be rationally connected to achieving that purpose  Must be minimally impairing of the right  Loss to the right must be proportionate to the gain resulting from the law that limits the right; Legislation must have an important purpose in order to be able to limit a right  Purpose must be “pressing and substantial”; important reason  Problem of general and specific purposes  Court usually accepts importance of purpose it identifies  Ex: law banning smoking advertisement; purpose: to prevent youth smoking, prevent cancer, prevent temptation.  Are the steps taken reasonable? Demonstrable Justification  Onus on party seeking to limit rights, almost always the state  Problem: social science evidence is contestable; - How easy/ hard is it for state? : Not easy to prove things, its speculative  Court need only be satisfied on the Civil standard of proof (lower level of standard; is it more likely than not. could be a really close case, just need 51%; would satisfy), not criminal (proof beyond reasonable doubt, jury has to be almost certain) -don’t have to prove beyond reasonable doubt  Balance of probabilities  Burden of proof lies on the state. Ratio
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