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Section 1 Reasonable Limits

Section 1 Reasonable Limits. The Oakes Test. Section 1 Reasonable Limits. Section 1 of the Charter is considered the “Guarantee” However…

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Section 1 Reasonable Limits

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  1. Section 1 Reasonable Limits The Oakes Test

  2. Section 1 Reasonable Limits • Section 1 of the Charter is considered the “Guarantee” • However… “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” • Judges must balance the benefits of the limitation against the well being of society in general- the benefit must be greater than the harm • Also the limit must interfere with the right/freedom as little as possible

  3. R. v. Oakes • David Oakes- charged with S. 8 of the Narcotic control act • In its wording the law set out that once possession was proven the defendant would then be given the opportunity to prove he was not trafficking • “reverse onus”- violation of section 11 (d) • Yep, he was right

  4. Framework for Charter Reasoning • Determining whether a limitation on a citizen’s rights is reasonably justified: • Does the charter apply? (federal and provincial law) • Has their been an infringement? (which right/freedom) 3a. First the objective of the law must be determined. It must be found to be of sufficient importance to warrant overriding a constitutionally protected right/freedom 3b. Second- the means chosen must be reasonably connected (is the design of the law rationally connected to the purpose) 4. The right or freedom was be impaired as little as possible.

  5. R. v. Oakes • Simply put: • Narcotic Control act s. 8 was a federal law • Section 11 d. was possibly infringed • a. Increase in drug use and therefore trafficking did warrant the creation of a measure to stop and punish drug dealers easier- pressing and substantial importance • b. Presumption of innocence is one of the most important rights in any democratic nation- forcing people with small amounts of drugs to show they weren’t trafficking does little to stop drug trafficking in Canada- therefore the design of the measure is not rationally connected to the purpose • The right would have been limited in to severe of a nature

  6. Freedom of Expression • Section 319 (2)- Wilful promotion of hatred against an identifiable group • Violates Section 2 b. • But is it a reasonable limit?

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