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When Rights Conflict.docx

3 Pages

Social Science
Course Code
SOSC 1375
Olena Kobzar

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1 When Rights Conflict Community Consensus: Who decides? Does there need to be a sense of social solidarity? Is there a difference between choosing/not choosing something for ourselves and prohibiting others from making different choices? Charter of Rights and Freedoms (1982): - Enacted in the constitution act of 1982 - Departure from parliamentary supremacy; major shift of power from the legislative to judicial body - A profound shift of power from the parliament to judicial body - It guarantees “all Canadians rights to liberty, equality under the law, and freedom of religion, expression, association and peaceful assembly” - Regulates relationships between government and a person (people) Charter and Democracy: - Parliament- democratically elected lawmaking institution. - Courts interpret rights as they are set out in the Charter - Charter- deliberated by a small exclusive, largely homogeneous group of people - Preamble to the charter „whereas Canada is founded upon principles that recognize the supremacy of god and the rule of law Rights: - Rights are „fundamental‟, but they are not „absolute‟ - Court interpret rights - Sec. 1: The Reasonable Limits Clause. Governments can only proscribe limits that can be DEMONSTRABLY justified in a free and democratic society - Sec. 33: the Notwithstanding Clause (only applies to Sec. 2, 7-14 and 15) ** R. v. Oakes (1986) - David Edwin Oakes found with 8 x 1 gram vials of hash oil and $600 in cash - Reverse Onus: Mr. Oakes had to prove that he wasn‟t a drug dealer - Defense: Sec. 8: Presumption of innocence 2 - Prosecution: Sec. 1: Reasonable limit 1. Prescribe by law – limitation must be part of law 2. The objective of the law must be pressing and substantial 3. Proportionality: i. Rational connection (absent in this case) ii. Minimal impairment (many Sec. 1 arguments fail
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