However that is tricky b/c the constitution itself provides for inequal treatment in the form of guaranteed denominational schools – so hard to reconcile. TEST To determine if legislation infringes on a See oakes See crim. law cases constitutional right examine: The legislation’s purpose Is it constitutionally valid. Purpose is at the time of enactment. If not valid strike down, don’t need to consider step two. The effect of the legislation Even if the legislation’s objective is valid, it’s effects could defeat its applicability and possibly validity. If it interferes with rights or freedoms could be held invalid, or could give the individual a constitutional exemption (courts don’t like doing that though) RATIO The content of s.2(a) is: If the object of the legislation The LDA is concerned The government cannot coerce is so completely antithetical to with the enforcement of individuals to affirm a specific religious constitutional rights, then no morals and attaches belief or manifest a specific religious s.1 analysis can save it. penal consequences, practice therefore it is validly Religious within Canada should be enacted under the afforded equal treatment. criminal law power. DISS. Much more concerned with what the EFFECTS of the law are, not with purpose. Purpose shouldn’t even be considered. Doesn’t matter if the rights impairment was intentional or not. Looking at impact on individuals If you open the door to purpose, you might go too far and require fault or intention on the part of the state to have discrimination. This would be negative b/c then you could have the state unintentionally breaching people’s rights all the time with no remedy.
However that is tricky b/c the constitution itself provides for inequal treatment in the form of guaranteed denominational schools – so hard to reconcile. TEST To determine if legislation infringes on a constitutional right examine: The legislation’s purpose Is it constitutionally valid. Purpose is at the time of enactment. If not valid strike down, don’t need to consider step two. The effect of the legislation Even if the legislation’s objective is valid, it’s effects could defeat its applicability and possibly validity. If it interferes with rights or freedoms could be held invalid, or could give the individual a constitutional exemption (courts don’t like doing that though) See oakes See crim. law cases RATIO The content of s.2(a) is: The government cannot coerce individuals to affirm a specific religious belief or manifest a specific religious practice Religious within Canada should be afforded equal treatment. If the object of the legislation is so completely antithetical to constitutional rights, then no s.1 analysis can save it. The LDA is concerned with the enforcement of morals and attaches penal consequences, therefore it is validly enacted under the criminal law power. DISS. Much more concerned with what the EFFECTS of the law are, not with purpose. Purpose shouldn’t even be considered. Doesn’t matter if the rights impairment was intentional or not. Looking at impact on individuals If you open the door to purpose, you might go too far and require fault or intention on the part of the state to have discrimination. This would be negative b/c then you could have the state unintentionally breaching people’s rights all the time with no remedy.
Thomson-Law_100-Final.docx