Oakes Test Case Study
explanatory Essay
530 words
The reasoning used by the Supreme court judges are based by the Oakes test. The main and sufficient objective according to the Quebec Court of Appeal and the Commission scolaire was the school safety; however, the Supreme Court found that the limitation went beyond the initial and intended objective set out by the Supreme Court and the Commission scolaire (Canadian Human Rights Reporter, 203). Judges McLachlin, Bastarache, Binnie, Fish and Charron JJ. also said that prohibiting Gurbaj’s right to bear the kirpan has more deleterious effects than salutary because it infringes on his freedom of religion. In addition, factor such as school safety is already at risk since there are other objects in school that could be “used to commit violence acts …show more content…
mentioned that they believe that the decision of this case should be treated as an administrative law instead of a constitutional (Supreme Court of Canada). In addition, they mentioned that a decision or order by an administrative body (in this case the Commission scolaire) “cannot be equated with a ‘law’ within the meaning of section 1 of the Charter (Supreme Court of Canada, 2006). In other words, the Oakes test is best used in a constitutional law that are “prescribed by law” and should not be used to administrative tribunals (Supreme Court of Canada, 2006). In addition, since this case started with an administrative decision, it should have continued with the same approach (Supreme Court of Canada, 2006). However, judges still chose to use the Charter because the primary issue was whether the decision infringed freedom of religion (Gratton, 2008) and not if the “decision maker exceeded its statutory authority in making the decision” (Gratton, 2008). Deschamps and Abella JJ. explained that the reason that the constitutional analysis should apply to laws and not the application of law and since the issue was to determine whether the school board’s exercise of power is reasonable (Canadian Human Rights Reporter, 2013), they determined that the schools board made an unreasonable decision since they did not consider the right of freedom and accommodating safety measure (Supreme Court of Canada,
In this essay, the author
- Opines that the supreme court's reasoning is logic and legal, but it has one flaw: the reasoning failed to compromise both constitutional and administrative law.
- Explains deschamps and abella jj's view that the decision of this case should be treated as an administrative law instead of a constitutional.
- Explains chief justice lebel's concurring opinion that the school board should have defined the rights invoked and how they relate to each other.
- Opines that the supreme court's reasoning is logic and legal, but it has one flaw: the reasoning failed to compromise both constitutional and administrative law.
- Explains deschamps and abella jj's view that the decision of this case should be treated as an administrative law instead of a constitutional.
- Explains chief justice lebel's concurring opinion that the school board should have defined the rights invoked and how they relate to each other.
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- Weber, Tom. Part 3: School Boards Sought Weaker Law. n.p., 16 May 2011. Web. 29 Oct. 2011. .
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In this essay, the author
- Explains that section 11(b) of the canadian charter of rights and freedoms ensures the right for a fair trial for every person criminally tried on canadian soil. trials can be delayed due to many factors, such as the crown or the accused.
- Analyzes the entire case r. v. morin and the facts, issues, positions of the crown and accused.
- Explains that r. v. morin was an impaired driving criminal case on january 9, 1988. the trial date was set for march 28, 1989 in the ontario provincial court.
- Explains that section 11(b) of the canadian charter of rights and freedoms ensures the right for a fair trial for every person criminally tried on canadian soil. trials can be delayed due to many factors, such as the crown or the accused.
- Analyzes the entire case r. v. morin and the facts, issues, positions of the crown and accused.
- Explains that r. v. morin was an impaired driving criminal case on january 9, 1988. the trial date was set for march 28, 1989 in the ontario provincial court.
- Explains that the accused appealed the conviction to the district court of ontario, and the court stayed it granting that she had not been tried within a reasonable time and violated her right under section 11.
- Explains that the 444-day delay between the accused being charged for a crime and the trial date may have violated the canadian charter of rights and freedoms.
- Explains that the court is interested in examining the potential limits of the institutional resources at the time of trial scheduling. the ontario court of appeal also had to examine if there were any prejudice towards the accused during the delay.
- Explains that the crown appealed the decision of the district court of ontario to drop the conviction due to the violation of section 11(b) under the charter.
- Explains the crown's argument that the accused had not received any prejudice during the delay, and the 399-day delay was reasonable since they were content with the speed of the trial.
- Analyzes how the accused argued that the court delay violated her right under the charter section 11(b) to be tried within a reasonable time.
- Explains the ontario court of appeal's decision that the delay was solely due to the limited institutional resources. the court considered the government needed a transitional period to reduce the tasks to complete each case.
- Explains that the court considered the preparation time of both the defence and the crown. the judges concluded that there was no indication on the record that could prove accused had taken any action against disapproving the delay.
- Analyzes how the r. v. morin verdict set a precedent for cases in the canadian criminal justice system.
- Explains that both parties agreed to proceed with the case by indictment and give the accused more time to explore the new evidence. the september court date was postponed and rescheduled to february 7, 2007.
- Explains the guidelines that were established in the morin case examined the factors of section 11(b) and took in consideration of balancing the right.
- Compares the godin case and morin cases, stating that the crown was responsible for the 30-month delay and ignored the accused's request for an earlier trial date.
- Explains the alberta provincial case r. v. klein used the morin case as a precedent in the final verdict of whether the accused right under section 11 (b) was violated.
- Narrates how the accused was charged with assault towards a police officer, obstructing an officer and resisting two police officers, although the officers were performing their general scope of police duties.
- Explains that the trial was rescheduled to january 18, 2008 because the accused was writing exams on december 12. the crown and defence built a joint application for adjournment because additional defence disclosure requests were not assembled.
- Explains that the final verdict of the case was decided by following the guidelines established in r. v. morin.
- Considers the guidelines derived from r. v. morin as a turning point in the justice system in terms of how to decide on unreasonable delay and clarifying the right under section 11(b).
2803 wordsRead More - The Canadian Criminal Justice Systemexplanatory essayIn the year 1970, the Canadian government founded the Law Reform Commission of Canada to ensure the progression of law making and to make recommendations for legal changes . The Law Reform Commission of Canada is constantly importing and suggesting proposals towards the criminal code of Canada. During the year of 1985, t...
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- Explains that the canadian criminal justice system is made up of many components that are constructed to ensure justice for victims of crimes along with criminals.
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- Explains that the law shapes the behavior and sense of right and wrong for every citizen in society. the law is designed as a neutral aspect existent to solve society’s problems.
- Explains that the canadian criminal justice system is made up of many components that are constructed to ensure justice for victims of crimes along with criminals.
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- Explains that breaking laws by the criminal justice system results in crime, which is prohibited or punishable by law. incorporating the offence of disastrous environmental harm in the criminal code causes it to be recognized as a crime.
- Explains that every recommendation or proposal that is proposed to the criminal code of canada tends to have negative along with positive aspects, which are considered.
- Opines that criminalizing environmental harm is a costly contribution to the canadian government and society.
- Explains the law reform commission of canada's distinction between true crimes and mere offences. true crimes tend to violate essential rules, whereas useful rules are aspects carried out in a special capacity.
- Explains that environmental harm would be characterized under a true crime if enforced by the canadian government. criminalizing an action tends to influence the crime rate.
- Explains that overcriminalization influences the seriousness of non-serious offences. the canadian government's proposal about criminalizing disastrous environmental harm would take away serious crimes.
- Explains that overcriminalization is costly and leads to overcrowding in prisons around the country.
- Explains that the ouimet committee was principled about how the criminal justice system should be enforced.
- Opines that criminalizing environmental harm can be considered a peaceful way of correcting the government's flaws in the foundations of law.
- Opines that environmental maltreatment should be criminalized because serious environmental offences are crimes against the environment, which eventually leads to criminals against human health and life.
- Explains that environmental harm has a massive impact on human lives, and that criminalizing it will minimize these impacts and respect the law reform commission of canada's aspect to convalesce and support the criminal justice system and the canadian society.
- Explains that the law reform commission of canada accepts and rejects goals and principles that can be used to improve and support the canadian criminal justice system.
- Explains that the way legal authorities and the government define environmental harm varies from country to country. many countries have already criminalized it such as the united states, germany and japan.
- Opines that the law reform commission of canada is a key role in the legal aspect of society. they argue that environmental destruction and maltreatment should not be criminalized.
1961 wordsRead More - Democracy is more than merely a system of government. It is a culture – one that promises equal rights and opportunity to all members of society. Democracy can also be viewed as balancing the self-interests of one with the common good of the entire nation. In order to ensure our democratic rights are maintained and this lofty balance remains in tact, measures have been taken to protect the system we pride ourselves upon. There are two sections of the Canadian Charter of Rights and Freedoms that were implemented to do just this. Firstly, Section 1, also known as the “reasonable limits clause,” ensures that a citizen cannot legally infringe on another’s democratic rights as given by the Charter. Additionally, Section 33, commonly referred to as the “notwithstanding clause,” gives the government the power to protect our democracy in case a law were to pass that does not violate our Charter rights, but would be undesirable. Professor Kent Roach has written extensively about these sections in his defence of judicial review, and concluded that these sections are conducive to dialogue between the judiciary and the legislature. Furthermore, he established that they encourage democracy. I believe that Professor Roach is correct on both accounts, and in this essay I will outline how sections 1 and 33 do in fact make the Canadian Charter more democratic. After giving a brief summary of judicial review according to Roach, I will delve into the reasonable limits clause and how it is necessary that we place limitations on Charter rights. Following this, I will explain the view Professor Roach and I share on the notwithstanding clause and how it is a vital component of the Charter. To conclude this essay, I will discuss the price at which democr...
In this essay, the author
- Explains that democracy is a culture that promises equal rights and opportunities to all members of society.
- Explains that dialogic judicial review can be viewed as combining constitutional decisions of courts with legislative revision or rejection of those decisions by means of ordinary legislation.
- Explains that section 1 of the canadian charter of rights and freedoms states that all rights and freedoms are restrained to reasonable limits determined by dialogic judicial review.
- Explains that democracy is a culture that promises equal rights and opportunities to all members of society.
- Explains that dialogic judicial review can be viewed as combining constitutional decisions of courts with legislative revision or rejection of those decisions by means of ordinary legislation.
- Explains that section 1 of the canadian charter of rights and freedoms states that all rights and freedoms are restrained to reasonable limits determined by dialogic judicial review.
- Argues that it is undemocratic to have unelected members of the judiciary involved in deciding how our rights should be restricted.
- Explains the notwithstanding clause, which gives the government the power to protect our democracy in case a law were to pass into legislation that does not necessarily violate our charter rights, but would be objectionable.
- Explains that the notwithstanding clause gives elected representatives power over the appointed judiciary to pass laws without being subject to judicial review.
- Argues that sections 1 and 33 of the canadian charter of rights and freedoms make it more democratic, but it comes at a cost.
- Explains the canadian charter of rights and freedoms, part i of the constitution act, 1982, being schedule b to the canada act 1982 (uk), 1982.
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