yorku pols3136a public law ii politics and morality

i) “Regarding the ‘objective’ of legislation, the rule is: the more abstract or general the legislative goal, the more desirable the objective ought to be. ” Explain this statement and provide two examples (from the second term) where the SCC ruled that while the objectives of the law remain reasonable the scope of the law must be narrowed to achieve those objectives. Provide for a brief summary for the Courts reasoning in both cases.

2. Expression/Religion

i) Freedom of Expression is vital to the pursuit of truth and the health of a democratic society. When the government creates law that limits expression it must justify itself to the highest standard of proof that the limitation is a necessary one. In your own words, elaborate on the meaning of this quote. Given the cases regarding Expression that we have covered in class, how has the Canadian government justified its laws that limit that Charter Right?

ii) According to The Supreme Court of Canada, The Harm Principle does not limit what constitutes protected Expression or Relgious belief. Explain.

3. Fundamental Justice

i) Identify three of the principles of fundamnetal justice that the SCC has read into S.7. Why did the SCC not include harm in its interpretation of the principles of fundamnetal justice?

ii) The SCC have accepted exterme intoxication as a defence in certain circumstances. What are those circumstances? When would EI not be permitted as a defence? In your opinion, should extreme intoxication be a defence at all?

iii) Parks and Stone are both leading Supreme Court of Canada decisions on the criminal automatism defence. These decisions seem to provide different directions for lower courts when considering evidence regarding automatism. Since Stone doesnt explicitly overrule Parks, the lower courts can draw distinctions when utilizing one over the other.

Briefly describe the distinctions between the Parks and Stone decisions (you do not need to go into any detail regarding the trial facts of either case, just the determinations of law specific to the defence of automatism.) In your opinin, are these decsions consistent with one another? Or has the SCC set a dangerous precendent that may come at the expense of public safety?

4. Equality Rights

i) Identify the criteria that the Supreme Court uses when it decides whether or not to recoginzie a claim of discrimination. In your estimation, what was the key case whereby the SCC articulated an operative definition of discrimination?

ii) When it comes to claims of discrimination, subjective standards are not enough. For the SCC the effect of the law has an impact on practices that involve people other than just the party claiming disadvantage. Explain and provide an example

B) Essay Question/Critical Case Analysis: 20 marks

Throughout the term we have examined how the courts (via the Charter) have attempted to balance the goals of public policy with the rights and freedoms entrenched in the Charter. In doing so, we have also agreed that the law is not a mechanical exercise or a fail-safe analytical tool when it comes to addressing problematic social and moral issues. The law is, to a large degree, political. That means that decisions, legally principled, logical coherent or otherwise, will always be influenced by contextual factors.

Given the cases we have examined this term, it seems then that the tension between the objectives of law, politics and morality will never be completely solved. Perhaps this is a desirable aspect of law in relation to complex social/moral issues.

Discuss and evaluated the above quote by making reference to at least one case that involved the tension between morality, the public good, and/or the harm principle and a particular right. In your opinion did the courts strike the correct balance in this cases? Provide reasons for your position(s.)

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