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.
Obscenity Butler FACTS Appellants charged with selling obscene material, possessing obscene material etc. ISSUE Does s.163(8) of the CCC—the definition of obscenity—breach s.2(b)? Is it justified under s.1 HELD Yes Yes RSNS First need to interpret the definition. This is problematic b/c the Court goes on to interpret the definition in a way that WILL pass s.1… so it’s a bit of a sham. The old test which defined this definition was the community standards test. This has shifted now into the degradation or dehumanization test… which would necessarily be against community standards. Therefore, the CCC bans expression that degrades or dehumanizes in a sexual context. Is Pornography a form of expression? Yes. They have to edit the film, Object The object of the act is avoidance of harm to society. Problem is: this seems like a shifting meaning… at the time of enactment the focus was more on Morals. Court this by saying that the avoidance of harm was ALWAYS a purpose, and they are just that now and the moral purpose. The Court does say the
choose the scenes, etc. Trying to convey a meaning Purpose of this Provision: Prohibit certain types of porn, a type of activity that convey’s meaning. Can’t say that it is an exception b/c to portrays violence. Only expression is in the form of violence is excepted from protection under s.2(b) of morals would be an insufficient purpose. However, avoidance of harm… protecting equality is pressing and substantial. Rational Connection Parliament has a reasonable basis for choosing this method of achieving their objective. Social science evidence is ambiguous, but this is irrelevant. Don’t need exact scientific proof, just a ‘rational connection’ or inference’ which exists here. Seeing such material rationally promotes anti-social behaviour and