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Lect 6-Oakes.docx

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Social Science
SOSC 3360
Jonathan Rudin

Oakes October2813424 PM Section 1 of the CharterImportant to look at it before we get into the substantive of the charterStates that charter of rights guarantees in such reasonable limits prescribed by law The one section that has become very popular around the world Countries quite like section 1 because its pragmaticoIt acknowledges that there are rights but sometimes those rights need to fall because there are other sociatal values at stake It allows courts to find a violation of rights but just casue your rights are violated doesnt mean you have rights under the constitution How it worksoSection 1 of the Charter but the last section you rely on for a charter claim First you bring your charter claim under section 2 to section 15 you say your rights under such right have been infringed two options the court can take no your rights have not been infringed and its over next the court can say yes your rights have been infringed it means you get to go on to the next round Next round section1 If the court says that whats been done your violation can be justified ina free and democratic society then you lose but if it is unjustified then you win The burben of proof or the onus lies on the applicant on this part prove on what the balance of probabilities then the government have the onus of section 1 of the case Your charter right could be infringed but you still lose the case but you can be heard from the court Allows the court to give firstly full attention to the rights claim After you determine someones rights were infirnged then you have to see if it is justified in a free and democratic society Is there a violation then we take a bigger picture look its it reasonable in a just and democratic society are ther eother ways we can accomplish the same thing without violating the individuals rights When the charter passed no one knew what section 1 would do oThe 9 wise men and women of the supreme court of Canada will have an answer to this We find out how the courts wil decide on the oakes case Oakes case was in 1986 took the courts 4 years to know what section 1 meant oThe courts tried out various things before hand they decided cases prior to Oake but they were not sure what to deal with section 1 oWhen they deal with section 1 they want to get it right the first time so it took them 4 years to consider what the rules should be Oakes case was the first time they officially said ok this is how you interpret section 1Oakes test oParagraph 6 of the decision
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