Lecture 3 Jan. 18 2008

Lecture 3 Jan. 18 2008 - Jan. 18 Application of Charter...

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Jan. 18 Application of Charter We’ll start with three early charter cases: Big M Drug Mart (April, 1985) Status of Bill of Rights precedents Purpose of Charter Does Charter apply to businesses? Operation Dismantle (May, 1985) Does Charter apply to cabinet decisions? Oakes (Feb., 1986) application of Section 1 (limitations clause)
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Big M Drug Mart Impugned: Lord’s Day Act Calgary drug store challenges Act as violation of S. 2 Does Charter apply to corporations? “everyone” in S. 2 (fund freedoms) and “anyone” in S. 24 (remedies) includes legal persons Bill of Rights precedents Does Robertson & Rosetanni apply? Dickson: Charter doesn’t simply “recognize and declare” existing rights. Applies to Do we look only at effect of impugned legislation, as in No: purpose equally important. Purpose is clearly to promote particular religious observances (from 1677) Purpose of Charter: tolerance, freedom, equality. Freedom is founded on “respect for the inherent dignity and the inviolable rights of the human person.” “Purposive” approach to application of Charter
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Big M (2) Freedom of Religion What is purpose of freedom of religion? History: forcing religious belief does not work Christians realized that their religion demands tolerance. Everyone given a conscience by God; to compel belief therefore dishonours God rel minorities need protection from tyranny of the majority Act therefore violates s. 2. Can it be saved by s. 1? Crown arguments: need a day of rest conforming with needs of majority. Dickson: No; Charter is to protect religious minorities society needs a weekly day of rest so families can spend time together. Dickson: good argument, but that’s a provincial responsibility. LDA was a federal law under criminal power. Now only provinces can regulate.
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1983: peace groups challenged cabinet decision to test U.S. cruise missiles; violates s. 7. 1985: SCC decision Argument: testing will destabilize status quo, making Canada vulnerable to attack from Soviet Union Issues Are cabinet decisions subject to the Charter, even when under the prerogative power? Yes: S. 32 includes “government,” broadly defined Are politicial issues justiciable? This is a U.S. approach Any legal issue is justiciable in Canada Should the case proceed to trial? Dickson: no, because the arguments of the peace activists are speculation; no proof that s. 7 would be violated. No legal issue, no standing. Wilson: need proof that the tests would violate s. 7 rights of specific individuals
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Lecture 3 Jan. 18 2008 - Jan. 18 Application of Charter...

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