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Public Law II - Jan. 23,2014

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Political Science
POLS 3136
Jennifer Dalton

Reasonable Limits: Section 1 • Rights are not absolute • Protection of rights can be limited • Competing rights must be balanced Oakes Test: (1) Pressing and substantial (2) Justification analysis (a) Rational connection (b) Minimal impairment (c) Proportionality test -purpose including section 1 in charter – debate around this – agreed to by original drafters of CA 82 and charter in order to get everyone on board and recognize that even though there’s this entrenched law to protect the rights and freedoms of all Canadian citizens, rights can’t be considered to be absolute, there will be times when limits must be placed on rights, where rights might compete with one another, where conflicts can arise – that’s primary underlying purpose of section 1 -in that sense rights might be limited but ONLY as prescribed by law meaning there’s got to be some sort of justification for any limit on right -must be regulation or statue in place that provides for a limit placed on a right -expected that there’s got to be some sort of demonstrated justification on part of gov’t body of why there’s a limit being placed on a right – onus on gov’t to prove this -First time reasonable limits clause came under judicial inspection or scrutiny was the Oakes case -from this point onward Oakes test created, defined scope and substance of section 1 and how it would be applied going forward -Whenever there’s a charter violation found since section 96 and ongoing, that’s when Oakes test kicks in (including now) – -that means that if you take one step back, court first must decide if charter violation has taken place -At that point, onus placed on party saying this is my charter right and it’s been breached – they must prove before the court that there has been a breach -if determined by court that there is breach, Oakes test kicks in, onus on gov’t -Pre-charter, judiciary didn’t have this role to play – didn’t have charter mandate responsibility to undertake this sort of review -with implementation of charter and ca 82, role of judiciary has expended to encompass these sorts of reviews on human rights and freedoms -Oakes test consists of two primary stages -stage 1 more straightforward, stage 2 has 3 steps -Stage 1 – has to determine if statute or regulation in question that is infringing the right has as its goal something that’s considered pressing and substantial enough to justify the infringement of that right -at this stage, onus on gov’t to show that legislation or regulation that is being questioned is important enough to justify the infringement -result can be that whatever the measures are they aren’t important enough to justify, court can say well whatever this law is, is inconsistent with the charter, so we’ll strike down the law – don’t have to strike down the entire law, certain parts or provisions, can suggest amendments, can send back to gov’t and tell them to fix it, not significant enough issue to warrant, they can read in (Add to legislation), courts will often apply a time limit i.e. got a year to fix the issue) – in that sense you see this so-called dialogue going back and forth where gov’ts are given opportunity to respond to judicial ruling, they don’t always respond -usually gov’ts respond in keeping with them because they want to keep good public opinion, most people support the judiciary, would alienate voter base to go against them -stage 2 – if court determines infringement takes place but it’s justifiable, so in that sense the gov’t has been successful to demonstrating to the court that there is a significant enough justification, then stage 2 comes in -Justification analysis – again onus on gov’t, expected to show that infringement of right is justifiable – demonstrably justified = gov’t has to clearly show that there are 3 main points in terms of infringement 1) Is legislation in question rationally connected to its objective – does legislation Infringing right or rights actually result in what it’s meant to achieve – court called upon to examine in depth and if its purpose on paper is resulting in practice in what it’s meant to do – any legislative measures expected to be fair, consistently applied, not arbitrarily – gov’t would have to show legitimate proof that this is actually taking place, law applied in consistent fair matter 2) Minimal impairment – court called upon to determine if right is being infringed as little as possible – already established that right is infringed -gov’t has to show that they’re doing whatever it takes to unobtrusively as possible infringe right – can’t just be blatant rough shot infringement – must show attempts to reduce -in this sense, court must undertake least drastic means test – what’ least drastic way to apply legislation without harming individual -efforts must be made 3) Proportionality test – balancing that goes on between the objective of legislation and effect of legislation, in keeping with other steps -in this context, the more severe the limits are on the right, the more important the objective has to be -if there’s a really significant infringement of rights going on, it has to be for a really good reason -similarly, if court finds that justification of gov’t is not all that important, than any infringement must be very minimal -whatever infringement is has to be directly proportionate to importance of the outcome -undertaken in any case where charter case being infringed Section 33 – notwithstanding clause -envisioned as an option to get everyone to agree to charter again at time of negotiation -lots of concerns leading up to negotiations that result in finalization of charter that with a new charter judges would have way too much power -would be able to examine charter rights, infringements of rights, wade into really contested political issues and therefore take on a much more active policy role -video clip: discusses this -some people thought this was fine, some adamantly opposed -concession made by Trudeau at the time, agreed to include section 33 as an option for gov’ts to pretty much ignore what a court ruling might say -not totally ignore, but loophole to get out of judicial ruling they weren’t happy with -provincial concerns, especially from Québec that judges would have too much power, because of doctrine of constitutional supremacy in Canada, const. held supreme, rule of law at very top of our system, no one considered to be above that -meaning gov’t actions, laws, etc., must be consistent with constitution, charter, can only act in delegated spheres of authority -authority can be determined by the courts -Courts called upon to settle conflicts arising between various actors – judicial review – huge hallmark of our system in context of federalism since before charter -once charter hit, scope of judicial review expanded significantly -courts can now ensure not just that there’s appropriate balance – legislation regulation and so on will conform to citizen rights embodied in charter – powerful position -people were upset, wanted override clause -say ruling passed, any province legislature can say notwithstanding this ruling we’re going to continue operating this… gov’t takes power back, option to ignore what court might say -have to specifically pass legislation that would give life to their intent to defy the supreme court or court ruling – meaning if there’s an infringement of human right or freedom and court said this is conflicting with charter right and we’re going to strike it down, gov’t can apply section 33 -after 5 years, gov’t in question would have to renew or reinstitute law in question -Important check on judicial review and activism – seen as big concession to get everyone board leading up to 1982 -It worked except for Quebec – wasn’t happy with it, never signed on, has its own charter -even though section 33 is there it be used, it doesn’t apply to the whole charter – only certain parts of it, including fundamental freedoms in section 2, legal rights in sections 7-14, equality rights
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