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Full bibliography 1,064 resources
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The author argues that the apparent collapse or erosion of the Oakes test reflects the problem of fitting a right such as freedom of expression, which is social and relational in character, into a structure of constitutional adjudication, which is built on an individualist conception of rights. In the leading Canadian freedom of expression cases, the task for the courts under section 1 is not simply to strike the proper balance between competing interests, but rather to resolve the single but complex question of whether the expression contributes to, or undermines, human agency or autonomous judgment. In these cases, the “value” of expression and the “harm” of expression are not distinct issues, but rather two sides of the same basic issue. Whether expression is more likely to contribute to insight and judgment or to manipulate and lead to an unreflective response is a relative judgment that will depend significantly on the social and economic circumstances in which it occurs. This issue fits awkwardly within an adjudicative structure that is based on an individual liberty model of rights. The author argues that this awkwardness accounts for the “erosion” of the Oakes test in freedom of expression cases and more specifically for the court's increasing, and inadequately justified, deference to legislative judgment under section 1.
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When poverty activist resort to the Canadian Charter of Rights and Freedoms, things cannot be going very well. The Charter of Rights will not eliminate poverty or gross disparities in wealth. It will not ensure that affordable housing is provided to those in need. All it may be able to do is to protect the individual’s right to ask others for help, to beg in the streets.
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This is one of the first articles written in Canada on racial profiling and policing. While dated, the piece set out standards that can be used to prove racial profiling and recommended enhanced Charter standards to facilitate adjudication. As noted in the Introduction:
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