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R. V. K.R.J.: Shifting The Balance Of The Oakes Test From Minimal Impairment To Proportionality Of Effects, Marcus Moore
R. V. K.R.J.: Shifting The Balance Of The Oakes Test From Minimal Impairment To Proportionality Of Effects, Marcus Moore
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The judgment of the Supreme Court in R. v. K.R.J. reflects an important potential change in the way proportionality analysis is conducted in the review of constitutional rights limitations under Canada’s Oakes test. Previously, most cases came down to the “Minimal Impairment” stage of Oakes. Its dominant role is challenged by KRJ, which places new weight on the subsequent and final “Proportionality of Effects” step. A permanent shift in the focus of the test to the Proportionality of Effects inquiry would be a landmark change in the thirty-year history of proportionality in Canada. The shift does not appear crafted to …
R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore
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The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the …
The Limits Of Statutory Interpretation: Towards Explicit Engagement, By The Supreme Court Of Canada, With The Charter Right To Freedom Of Expression In The Context Of Copyright, Graham Reynolds
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In its post-2002 copyright jurisprudence, the Supreme Court of Canada has clarified that the Copyright Act grants a significant degree of latitude to non-copyright owning parties to express themselves using copyrighted works. This outcome is attributable neither to the SCC having interpreted provisions of the Copyright Act according to Charter values nor to the SCC having weighed provisions of the Copyright Act against the section 2(b) right to freedom of expression. Rather, it has resulted from the SCC interpreting provisions of the Copyright Act through the lens of the purpose of copyright, as re-articulated by the SCC. The author argues …