Comment on Is there any movement to address the trampling of the Charter in Canada?

• sj_zero@lotide.fbxl.net ⁨2⁩ ⁨years⁩ ago

  Under US jurisprudence, there are three levels of scrutiny required in order to bypass constitutional rights. One thing to be aware of is that the US Constitution is absolutely not absolute. There are all kinds of laws from libel to fraud to commercial misrepresentation that are all at first glance a violation of the constitution, but they are allowed because they have been allowed by the supreme Court.

  The first level in the US is called strict scrutiny. Under strict scrutiny, a limitation must be for a compelling state interest, and must be tailored to be the most limited restriction possible, and is limited to the least restrictive option possible to achieve that state interest.

  In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest by means that are substantially related to that interest.

  The lowest level is just called the rational basis test, and it's just a very basic sanity check showing that the law has something to do with the intended purpose of the law.

  By contrast, Canada's charter of rights and freedoms is tested using the Lakes test. The test interprets section 1 of the Charter of Rights and Freedoms, which states that rights are guaranteed, “subject only to such reasonable limits . . . as can be demonstrably justified in a free and democratic society.”

  This test consists of two sections with four total parts. The first is seeing whether there's actually a pressing and substantial government interest. The second major checks to make sure that the violation is proportional to the compelling government interest consisting of three subunits testing whether the law is rationally connected to the issue, whether the law is minimally invasive, and the final test is whether the proposed law is proportionate to the interest.

  So, looking at the test you can see that it is very similar to strict scrutiny.

  The issue seems to be multi-fold, so I think the solution must be multi-fold as well.

  1. Modify the charter to strengthen the language saying "except as prescribed bylaw and can be justified in a free and Democratic society". It's too weak and allows direct violations of the rights to be slid in as more countries are more authoritarian. We need to set the standard, not follow it.

  2. Judges need to be replaced with more charter conscious ones or they'll make up crap reasons to justify why insanity is ok.

  3. There needs to be a. Equivalent to US 1983 and 1984 claims that lets people who have their civil rights violated to get compensation.

  4. Whatever organization engages in a 1983 or 1984 claim should have part of the money come from the pensions of the people working for that organization. If parliament passes an unjust law, then take it from their pensions. If the cops violate the law to harm someone's rights, then all current and previous cops will see their pensions drop.

  5. There needs to be an audit on all laws in the books once these changes are instituted and any laws that don't make Canada the world leader in human rights shall be struck from the books.

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  • kiwiheretic@wolfballs.com ⁨2⁩ ⁨years⁩ ago

    I take it the Lakes test is very vague and wishy washy

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    • sj_zero@lotide.fbxl.net ⁨2⁩ ⁨years⁩ ago

      Any test is wishy washy if you have a bunch of judges in power because they're gonna advance your political agenda.

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      • kiwiheretic@wolfballs.com ⁨2⁩ ⁨years⁩ ago

        I thought the Judiciary and State were supposed to be independent. I knew in America that supreme court judges were political appointees and changed every time the presidency (or ruling party) changed. I thought Canada was like the UK but I guess not.

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