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  1. GM sets out five criteria for upholding a law under this general regulation of trade branch.
    • This is not a test, and a law need not necessarily meet all 5, but so far, the two biggest statutes upheld under this branch have both met all 5 factors.ROCLN
    • 1.Regulatory scheme
    • 2.Oversight of regulatory agency
    • 3.Concerned with regulation of trade as a whole; NOT concerned with a particular industry or collection of industries.
    • 4.Legislation is beyond the capabilities of prov jurs.
    • 5.National scheme is necessary to avoid potential negative consequences that one prov’s approach could have elsewhere in country.
    • #3-5 more important than #1-2. #4-5 similar to Provincial Inability Test (national concern branch of POGG)
    • For #4-5, consider whether it is necessary for Parl to regulate this subject matter, or just more efficient. If provs are still capable of regulating this subject matter, or if law contains an opt-out clause which seems to concede the ability of the provs to deal with this on their own, then the chances are long against upholding the law.
  2. Justifying the Infringement-1986 SCC-Oakes Test:
    • 1) Is the constitutional infringement prescribed by law? (Set out in a legal rule, publicly accessible, not too vague – as per NS Pharmaceutical).
    • 2.) Is the legislative objective significant (pressing and substantial in a free and democratic society) enough to warrant overriding a constitutional right?
    • 3) Are the means chosen to achieve this objective reasonable, demonstrably justified and PROPORTIONATE?
    • a) Rational Connection - The measures adopted must be carefully designed to achieve the objective in question; must not be arbitrary, unfair or irrationally based.
    • b) Minimum Impairment - Even if rationally connected to the objective, the means should impair “as little as possible” the right or freedom in question.
    • c) Proportionality – Must be proportionality between the negative effects of the law and the legislative objective.
  3. Rothman’s test
    • 1.Can a person comply with both the federal and provincial statutes?
    • 2.Does the purpose of the provincial statute frustrate the purpose of the federal statute?
    • If the answer to either of the above is yes then the federal statute stands
    • If the answer to both is no, then both laws can stand pursuant to the double aspect doctrine
  4. 4 stages of Charter analysis
    • 1) Does the Charter apply to the facts?
    • 2) Does the challenged government action interfere in purpose or effect with the exercise of a Charter right or freedom? (ss.2-23)
    • 3) If so, is the interference with the exercise of rights and freedoms a “reasonable limit”, “prescribed by law”, that can be “demonstrably justified in a free and democratic society”? (s.1) – shift of onus on the government >OAKES TEST>avenue by which decides if reasonable encroachment!
    • 4) If not, what is the appropriate remedy? (ss.24 and 52) – courts are given discretion over what the appropriate remedy is for a Charter infringement
  5. Principles of Fundamental Justice have been found to include:
    • -procedural fairness
    • -no punishment of innocent (mens rea requirement)
    • -intelligible standards (no vagueness)
    • -lack of arbitrariness (a rational connection must exist)
    • -least restrictive means (over breadth-has the government selected the least restrictive means?)
    • -proportionality (between the negative and positive effects of the government action)
    • -protection from extreme violations of human dignity (deportation to torture)
    • -protection from self-incrimination
    • -right to a fair trial, including right to make full answer and defence
  6. s.1>Remedies a law may be declared
    • invalid in its entirety partial
    • invalidity via severance, reading down reading in (for under-inclusive legislation)supply what is missing a temporary
    • suspension of a declaration of invalidity – allows Parliament or provincial legislature to “fill the void” (problematic since it allows unconstitutional legislation to temporarily persist)reason-
  7. S.7-TEST
    • 2 step
    • 1-Is there a violation of Life, Liberty or Security of the Person?
    • 2- Is it in acccordance w/ Principles of Fundamental Justice?
  8. Remedies if NOT saved by s.1 analysis
    • a law may be declared invalid in its entirety
    • partial invalidity via severance, reading down
    • reading in (for under-inclusive legislation)
    • supply what is missing
    • a temporarysuspension of a declaration of invalidity –allows Parliament or provincial legislature to “fill the void”
    • (problematic since it allows unconstitutional legislation to temporarily persist)
    • reason-
  9. s.15-TEST:
    • 1-is there a distinction being made?
    • Confer on 1 not another?
    • 2-Is it based on enumerated or analogous grounds?
    • Analogous grounds=sexual orientation, aboriginal, marital status, citizenship Analogous grounds ~enumerated
    • Personal-something you are, not do
    • 3-is it a manner that discriminates>Contextual Factors
  10. S.15 Contextual Factors
    • NOT all or nothing:
    • (a)Pre-existing disadvantage, prejudice, or vulnerability experienced by the individual or group in question;
    • (b)Whether the distinction corresponds with
    • differences based on actual needs, (in)capacities or circumstances of the claimant class
    • (c)Whether the purpose of the impugned law is ameliorating historic or existing disadvantage
    • (d)Where the law restricts access to a fundamental social institution (medicare, family law mechanisms, family or spousal recognition) or affects some basic aspect of personhood (human rights code protections), it will infringe
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