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POL - Mar4.doc

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Western University
Philosophy 2080
Jeannie Gillmore

Procedural vs. Substantive law -A duty of care is substantive. Procedural is how to enforce those rights. -Due process: if the police arrest you, you are entitled to a trial and basic procedural rights. 1. Right to know the case 2. Right to make a full answer 3. Be heard impartial arbitrary Natural Justice -Basic guarantees or procedural rights. Know the case against you, what the allegations are, etc… Make an address or answer to case against you, make the argument in front of an impartial and unbiased decision maker. Section 7 -Everyone has the right to life, liberty and the security of the person. Except in accordance with the law of Fundamental Justice. Fundamental justice- includes everything. Innocent until proven guilty. Oaks • Lawyer from London, Ontario • One of the most important Charter litigation -Oaks charged with possession of a narcotic under Narcotics Control Act: once you are charged and convicted of possessing a narcotic, no matter what the quantity, it is presumed that you possess it with the purpose of trafficking. The onus is on the person with the drugs to prove they are not planning on trafficking. • Narcotics Control Act—if you’re caught with any quantity of narcotic, law assumes that you possess for the purpose of trafficking • -You have the right to be presumed innocent until proven guilty… so this is the argument made in this case. The defence should not have to prove that he is innocent because it violates section 11d of the Charter of Rights and Freedoms. -Does it offend the charter? -Presumption with/without basic facts: mandatory or permissive (allowed). Can be irrefutable or refutable. • Legal presumptions—some are irrebuttable, some are rebuttable -In this case, it is a mandatory presumption of law with basic fact, that is refutable. -Presumption of innocence without basic fact. Crown must prove guilty. -It did violate section 11d and 7 because you are presumed guilty. 1. pressing and substantial objective (what are you trying to accomplish) 2. are the means used reasonably justified? Are they proportionate? (proportionality test) i. rationally connected ii. impair the rights minimally iii. do the negative effects out weight positive -Generated the Oaks test: -Rights are not absolute; limits imposed by the government can be justified. Onus of justifying the law falls on the government. What is consistent with the principles of free society? -Two competing interests: society’s and the individual’s. -Social interest: pressing and substantial objective in a social context; can the means be justified? (Is what you did proportionate to the objective?) Must be: 1) Rationally connected (control narcotics, this issue matters.) 2) Impair the right as little as possible 3) Negative effects of the legislation are not to outweigh the benefits. Since the amount you possess doesn’t affect whether or not you are assumed to be trafficking, it fails #1, because that rule doesn’t make any sense. Case: Ford vs. Quebec -French was the only language allowed on public signs and your business can only have a French name. - Freedom of expression - CFL, QCHRF—Quebec sec 58, 69 - charter - medium vs. message (medium is the message) -Business owners were fined. They challenged the government’s ability to fine them, based on freedom of expression, section 2b of the Charter of Rights and Freedoms. On trial, court found that the charter stating French only violated freedom of expression. - hierarchy of freedom of expression: is commercial expression important? Is this what freedom of speech is intended for? -Tried to argue that the Charter doesn’t apply to a sign or an advertisement. Need to distinguish between the medium and the message. Freedom of expression is about the content of what you say, regardless of language, which is just the medium by which you communicate your message. -Court says you can’t separate language and content. What is the objective they’re trying to accomplish? –Protect French language, French culture. There is a pressing and substantial objective. It is rationally connected to use language to protect culture. However, the exclu
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