Northern Light
Superstar
@Rimsky44
I'm happy to answer;
No, I am not an expert in Constitutional law, that's a high bar for a non-lawyer, though I have studied law in a breadth manner, including the constitution and have a degree in Canadian Pol. Sci and in History, and have written papers on it. Still, expert is too elevated to be a fair descriptor; knowledgeable would be fair.
The argument over whether a prima facie rights violation is ultimately unconstituional is really around S.1 (the reasonable limits clause)
S. 1 is commonly used to defend any number of nominal violations of the Charter by any number of laws and regulations.
This is fine, by the way, in my books, its a very sensible Canadian provision that says that our values are key, but they are not immutable, if there is a clear and pressing reason.
To invoke S.1, the Supreme Court has laid out a number of tests; some of the imposed restrictions would certainly pass those tests; others may or may not.
But, and this is important in arguing..........If S.1 is invoked the government is conceding as-of-right, that there is a violation of the Charter, and then relying on S.1 to justify that choice.
It may well be justified (I may wholly support it), but it is still a violation, merely a lawful one.
Now, let me substantiate the above:
This comes from the Federal Justice Department's own website: https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.html
From the same source:
"Demonstrably justified" connotes a strong evidentiary foundation. Cogent and persuasive evidence is generally required (Oakes, supra). Where scientific or social science evidence is available, it will be required; however, where such evidence is inconclusive, or does not exist and could not be developed, reason and logic may suffice
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The Oakes Test referenced above, for whether S.1 can be invoked is described below (again this is the Justice Dept website linked above)
There's a good deal more at the link above, but I don't want to offer a multi-page treatise, LOL
Simply info on understanding the Constitution.
FWIW, my read is that public health measures implemented, on their face pass the 1st part of the test.
But some would be seriously challenged with parts of the second branch of Oakes.
Some would pass easily.
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