Law Students

Canadian Constitutional Law # 26: Section 1 Analysis

By Erin

If you listen to only one Canadian Constitutional Law podcast, it should be this one. Or maybe number 5, since that had both the landmark persons case and the concept of the constitution as a living tree. Well, let’s say if you listen to only two, this should be the second.

We discuss sec 1 analysis, which is used in virtually every charter challenge once it has been established that a right exists and is being infringed. Section 1 allows the government to limit a right if they can demonstrate the limit is: prescribed by law, reasonable, and demonstrably justified in a free and democratic society. R v. Oakes is the early charter case that established a clear test to determine whether the section 1 criteria have meet met, and this test is still used today with very few adjustments. As I promised, I am posting a little map of how a charter challenge works from my notes to make the big picture more clear:

1. Is there a violation of a right?
2. Is the violation a reasonable limit under sec 1?
1. The limit is prescribed by law?
2. Demonstrably justified in a free/demo society?

i. Purpose is related to concerns which are pressing and substantial

ii. Means used to achieve objective are not disproportionate

1. Rational connection

2. Minimal impairment

3. Balance btwn both competing interests of society and the individual AND balance btwn the benefits of the legislation and the harm caused by it (Dagenais v CBC)

NOTE - In this podcast I originally said I would discuss both section 1 and section 33, but the latter was made into a separate podcast due to length. We will discuss the notwithstanding clause in episode 27.

Osborne v Canada (Treasury Board), (1991)
R v Nova Scotia Pharmaceutical Society, (1992)
R v Oakes, (1986)
Edmonton Journal v Alberta (AG), (1989)
Irwin Toy ltd v Quebec (AG), (1989)
Thompson Newspapers Co v Canada, (1998)
RJR MacDonald Inc v Canada (AG), (1995)
R v Lucas, (1998)

Full post as published by Life of a Law Student on March 09, 2007 (boomark / email).