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Laws 3509 Lecture Notes.docx

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LAWS 3509
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Laws 3509 Charter of Rights Topics Lecture NotesIntroductory Lecture09102013 Overview of course outline Brief discussion of materials McKinney Eldridge Douglas College Lecture Two Application of the Charter and the Notwithstanding Clause 140409 110 PMNotwithstanding Clause Notwithstanding Clause has been enacted three timesQuebecBill 101 language billSaskatchewanAlbertafor an area of law they had no control over in the first placeHow someone normally challenges a provincial or federal pieceThat branch of govt doesnt have jurisdiction in that areaThe Charter This course is about Section 15 and the objective is for us to be able to make a s 15 claim or dissect a s15 claim Justification Found in section 1 of the Charter R v Oakes Oakes Test First case in which s1 was involvedHad a piece of legislation that went too far in the sense that if a person was convicted for the purposes of possession of a controlled substance regardless of the quantity that person was presumed to also possess it for the purposes of trafficking The legislation didnt make any distinction between possession and trafficking Usually the onus is on the prosecution to show that the accused has committed the crime however this legislation took away the presumption of innocence therefore the burden of proof is on the accused person to prove themselves innocentReverse Onus from innocent until proven guilty it became guilty until they could prove themselves innocent the burden of proof shifted This component was tested as to whether or not it was constitutional The Constitution should not concerned itself with the tiny minute details of every day life rather it needs to stand the test of time it is supposed to be a framework The more detail you have in a Constitution the more youre setting yourself up for failure Lecture Two Application of the Charter and the Notwithstanding Clause 140409 110 PMThe Charter was intended to compliment the Constitution to provide some rights which otherwise may not have existed in the Constitution codifies some rights that existed but were not written down and some which did not exist In this case the Supreme Court was asked to define what demonstrably justified in a free and democratic society meant Free speech is an example you can only say so much under the Constitution before youre infringing on this right acts as a line in the signThe first thing that the Govt has to answer in defining this is why is what youre going so important pressingsubstantial in a way that the Court is convinced that youre doing something goodwhat goal are you trying to achieveThe next thing is to prove proportionalitywhat youre doing isnt reaching a point of overkill but that it is proportional to the rights in questionthe steps youre taking are rationally connected to what youre doing and what youre trying to achieveExample walking to campus from SunnysideBank in 20 minutes is an achievable goal whereas walking from Cornwall before sunset is not reasonablewalking being the means in which youre achieving this goalIn this case controlling trafficking and controlling drug use is a pressing and substantial objectivethere is no problem with thatbut in this case they had to prove how controlling somebody who had a very small amount of substance would achieve the major goal of controlling trafficking and drug useThe second aspect was that now that the objective was seen you have to show why the road youve taken isnt intrusive in that it takes away more rights than necessaryyou need to demonstrate to the court that youve only impaired as little as possiblewhat youre trying to achieve and how youre trying to achieve it is not overreachingcould you have done it in any other way1 PressingSubstantial Objective 2 Proportionality Rights must connect to the aim minimum impairment your goal outweighs the negative aspect of taking away peoples rightsEgan Old Age Pension when over 65 and after being in Canada for 10 years If your spouse is between 6065 theyll get spousal allowance but in the mid90s during the time this legislation was active the spousal allowance only applied to heterosexual couplesEgans spouse was between 6065 but because they were of the same sex male it would not be paid to his spouse
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