8/8/2019 Understanding s1 justification

1/1

1

Justification [ 25 ]

self note-s1 affects each section different-see bottoms.

Is the limit on the # right? justified unders. 1 of the Charter?The 2nd stage of JR is to determine whether the law is justified under s 1 as a reasonable limit prescribed by law that can be

demonstrably justified in a free anddemocratic society. R v Oakes (1986) -s1 performs two functions. It provides for limits on the

guaranteed rights; it also expressly guaranteed the rights and freedoms set out in the Charter. The burden of proof is on the person alleging

a breach of the charter. If established, then the burden shifts to those who support the law. R v Oakes (1986) The government must show

the law is a reasonable limit in a free and democratic society. The higher standard is proofis by a preponderance of probability and

evidence- is generally required.

(a) Is the limit prescribed by law?

Court decisions usually show the 1. the law is accessible & 2. the law is precise. A law will be too vague if(test) where there is no intelligible standard and where the legislature has been given a plenary discretion

to do whatever seems best in a wide set of circumstances.Irwin Toy v Que [1989]

accessible- statues, rule of common law, regulations will qualify. R v Therens 1985 not accessible- directives, guidelines issued by government departments or agencies. Committee for Cth of Can. v Can [1991] discretion statutory or administrative? case law If a limit on aCharterright is not prescribed by law it cannot be justified under s. 1. Rather, it is a government act, attracting a

remedy unders. 24 of theCharter [4.5 ]

(b) Is the purpose for which the limit is imposed pressing and substantial?

The law must pursue an objective that is sufficiently important to justify limiting a Charter right. (very rare cases will court objecto legislative judgment that the object of law is important enough to limit Charter.

self note- The statement of the objective should be related to the infringement of the Charter and supply a reason for infringingon a Charter right.

Objectives of the law cannot shift. R v Big Drug Mart 1985 and administrative costs- not important enough to breach rightSuresh

(c) Is the means by which the goal is furthered proportionate? (self note- dont answer this -answer in i-iii)

(i) Is the limit rationally connected to the purpose?

RJR MacDonald vCanada(1995)Judges will use common sense, reason and logic to determine if a rational connection exists. R v Oakes [1986] The law must be carefully designed to achieve the objective in question, it should not be arbitrary, unfair

or based on irrational considerations. [1.5 ]

(ii) Does the limit minimally impair theright? R v Advance Cutting & Coring [2001]The law should impair as little as possible the right or freedom in question. It should no

impair no more than is necessary to accomplish the desired objective. Judges allow provincial legislatures a margin o

appreciation for different provincial social objectives. : self note- in almost any situation it could be easier to come up with a less drastic means..

(iii) Is the law proportionate in its effect?

This step must require a proportionality between the effects of the measures which is responsible for limiting the Charter right orfreedom and the objective which has been identified as sufficient importance. The courts will balance the interests of society with

those individuals and groups. R v Oakes 1986

R v Edwards Book and Art (1986) -The effects of the limiting measures, must not be so severely trench on individual or grouprights that the legislative objective is outweighed by the abridgment of rights

All the courts go through this step during cases Hogg believe that it has never been used Conclusion on justification

After you determine your rights have been infringed, the courts must determine remedy. S. 52 (declaration oinvalidity) (available to individuals & sometimes corporations) S. 24(1) remedy (not necessarily a declaration of invalidity)

(only available to individuals