THE PRINCIPLES OF FUNDAMENTAL JUSTICE, SOCIETAL INTERESTS AND SECTION 1 OF THE CHARTER
AbstractIn this article, the author discusses the approach of the Supreme Court of Canada to the treatment of societal interests in cases involving section 7 of the Charter. From a review of the cases where the Court has considered the issue of where to balance societal interests - in the determination of whether there has been a violation of the principles of fundamental justice or in the analysis under section 1 - it becomes apparent that the Court is far from having any conceptually coherent approach to this issue, which is often determinative of individual rights under section 7. The author demonstrates that there are, in fact, two radically different approaches to the treatment of societal interests in section 7 cases, resulting in a situation where the lower courts and the profession at large are effectively without direction from the Court on this extremely important issue. The author argues that the tendency of some justices to import societal interests into the determination of the principles of fundamental justice effectively emasculates the rights guaranteed by section 7 because the resulting additional burden of proof on the individual rights claimant is excessively onerous.
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