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Lecture 8

SOSC 1375 - Lecture 8 - When Rights Conflict.docx

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Social Science
SOSC 1375
Olena Kobzar

1 When Rights Conflict Community Consensus The charter was pushed from parliamentary to judicial power, so it was pushed for the judges to interrupt and implement the charter and to change it to be constitutional Different people in the community feel as though they deserve different rights. So how and who who decides what rights we should have and to have for a community  Who decides? o Judges decide  Does there need to be a sense of social solidarity?  Abortion: different version of individual responsibility and social justice  Is there a difference between choosing/not choosing something for ourselves and prohibiting others from making different choices? Canadian Charter of rights and freedom  Enacted in the constitution act of 1982  Regulates relationshops between governmnets ( federal or provincial) and a person/ people  Departure from parliament supremacy : major shift if power the legislative to judicial body  it only regulates the relationship between person and government related insitutions  The charter of rights was a major shift of power and gave the courts a huge amount of power to interpret Charter of Rights and Freedoms (1982):  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:  People argue that our legal system is not democratic because we don’t elect our judges and this is because they might make decisions that will displease a whole bunch of people  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 2  Preamble to the Rights:  Rights are „fundamental‟, but they are not „absolute‟ – rights can be denied, including very basic ones  Courts interpret rights, you might have certain rights but they clash with one elses all the time  Sec. 1: The Reasonable Limits Clause. Governments can only proscribe limits that can be DEMONSTRABLY justified in a free and democratic society o Any time a charter case comes before the court the government argues that they squash your rights o The lawyers have to prove that the right is 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  Reverse onus is when the gov is charging you first and then you have to prove innocent  Reverse onus is when basically in traditional cases the prosecution has to prove the accused to be guilty beyond a reasonable doubt. But in the reverse onus the defence as to prove to be innocent within reasonable limits.  In his case he was charged under section 8 of the possetion of narcotics act and he has to prove that he had those drugs for personal use and not for selling  Defence: Sec. 8: Presumption of innocence  The three section of the Oaks test - 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: Rational connection (absent in this case) Minimal impairment (many Sec. 1 arguments fail to meet this) Proportionality: balancing the negative effect of limitation with positive effects of the law on society  The Oakes Test: is used every time a Charter violation is deliberated in Courts  Any time the gov squashes your right, like he was presumed to be innocent but he was charged to be a drug dealer so he had to prove otherwise  The violation of the right to be presumed innocent is justifiable under the  Oaks test is a test the gov uses for every charter case where section one is used  Is there something else that could be done to not embrace someone’s rights  Sec A of the narcotic control act was in violation  So basically when someone exrecises their freedom, but than they excesice to a illegal extent and they get arrested and taken to court. At court they argue that they were excecising their 3 freedom, but the prosecution is going to argue that those freedoms need to be used in limitation. It is than up to the courts to determine whether the argument of the prosecution is valid in the context of the case. Polygamy:  Sec. 293 of the Criminal Code reflects “ Christian norms and values from 120 year ago”  Polygamy violates the law  Have to decide: Must the law enforce the norm to the exclusion of all others? o If one chooses to have more than one spouse and other do don‟t, should those that should to have more than one be punished? Toronto Star Newspapers ltd. V. Canada (2010)  Freedom of expression and public bans  Do publication bans limit the Freedom of Expression? Are they a ‘reasonable limits prescribed by law’?  Sec. 517 of the Canadian Criminal Code – if accused requests a ban on media about his/her bail hearing, a publication ban must be granted o If im arrested and I go to my bail hearing and I don’t want it to go to the press, I want to band the publication press in my hearing o Its just a hearing so I should be presumed to be innocent, if its publicized you would be public presumed to be guilty  Alberta: a man charged with murdering his wife + Ontario: 17 people charged with terrorism related charges o The star wanted to report on the bail hearing o Took S. 5(17) to court and argued that it restricts freedom of expression  Do publication b
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