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The relationship of the charter and the administrative law and based on the Fact and Scenario answer the questions.
Case Study and Assignment Steps: Polygamy is illegal under Canada criminal Code. The woman asks the court to declare the prohibition against polygamy in the code inapplicable to her and to order the clerk to issue a marriage license. She argues that the prohibition offends the Charter because it violets her freedoms of religion, expression and association under s.2 of the Charter. The government concedes that the prohibition against polygamy in the code and the clerk's refusal to issue a marriage license violate s.2 of the Charter. How ever, it claims that the infringement is justified in a free and democratic society under s.1 of the Charter.
What test will the court apply in determining whether the violation of s.2 of the Charter is "saved" by s.1? Apply the test to the fact situation: explain what the government needs to establish in order to defend against the allegation that this section of the Criminal Code violates the Charter. For this analysis you need to apply also your common sense and understanding about the role of the marriage in the society and the related its other aspects.
Assignment steps:
1-Find and list the statutory and/or any other sources that you will need to consider for this assignment. ensure correct citation.
2-Identify the test and discuss briefly its components.
3Apply each component of the test to the fact-scenario and analyze on the ground of your own understanding of the social implications of polygamy on the individuals in the family and on the society.
Introduction
Polygamy is considered to be illegal in Canada under Canada Criminal Code (Canadian Criminal Code- R.S.C., c. C-46, section 293, 1985). A woman comes before the Court and asks the Court to declare her polygamous marriage valid and also asks to remove any prohibition which prevails against polygamy and further asks for the issuance of the marriage licence in her favour of polygamous marriage. She contends before the Court that the prohibition so laid on the polygamous marriage is derogatory and in detriment to the freedoms so enshrined under section 2 of The Canadian Charter of Rights and Freedoms, 1982 (The Canadian Charter of Rights and Freedoms- CONSTITUTION ACT, 1982).
Statutes
So, the applicable statutory authority for this particular case study is the Canada Criminal Code and also The Canadian Charter of Rights and Freedoms, 1982 (The Canadian Charter of Rights and Freedoms- CONSTITUTION ACT, 1982).
Test and its Application
The test to be applied is this instance is the Oakes Test named after the landmark decisions in R v Oakes (R. v. Oakes, 1986) and also in Alberta v Hutterian Brethren of Wilson Colony (Alberta v Hutterian Brethren of Wilson Colony , 2009), where the Court outlined the two- stage tests to determine the violation of Charter so infringed can be justified or at least made reasonable under section 1 of The Canadian Charter of Rights and Freedoms, 1982 (The Canadian Charter of Rights and Freedoms- CONSTITUTION ACT, 1982). In order to be eligible to apply for the Oakes test, there must be the pressing need and also some substantial objective for any government action, and the mean so chosen in order to achieve the objective must be in accordance with connected in such a way that it is rational to create the limitation on the rights provided under The Canadian Charter of Rights and Freedoms, 1982 (The Canadian Charter of Rights and Freedoms- CONSTITUTION ACT, 1982) and also the limit so created must minimally cause the impairment given under The Canadian Charter of Rights and Freedoms, 1982 (The Canadian Charter of Rights and Freedoms- CONSTITUTION ACT, 1982), and fully proportional to the burden based on the rights so claimed by the claimant, in order to maintain the existence of the equilibrium between the beneficial limit so imposed to its effect and thereby uplifting proportionality.
Supreme Court of British Columbia in (Reference re: Section 293 of the Criminal Code of Canada, 2011) held that the limitation if provided on polygamy is considered to be reasonable imposition of limitation under section 1 of the Charter i.e. (The Canadian Charter of Rights and Freedoms- CONSTITUTION ACT, 1982), and further concluded that the fate of polygamy is harmful to society, since, it contributes to both physical and psychological harm to the society at large. Canada is under the obligation to upheld the directions provided by International Covenant on Civil and Political Rights (United Nations Human Rights Commission, 1976), International Covenant on Economic, Social and Cultural Rights (United Nations Human Rights Commission, 1976), Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination Against Women (United Nations Human Rights Commission, 1981), and also the Court found in (Reference re: Section 293 of the Criminal Code of Canada, 2011), that these above- mentioned treaties only also prohibited polygamy in one way or the other. Judge in the case of (Reference re: Section 293 of the Criminal Code of Canada, 2011), laid emphasis that section 7 of the (The Canadian Charter of Rights and Freedoms- CONSTITUTION ACT, 1982), which secures the right to life, liberty and the security of the individuals, is not justified by section 293 and that particular section essentially failed to provide an explanation for the limitation and finally held that the word every one used in section 293 will exclude the children in the age group of 12 to 17 years.
Conclusion
So, if the case so decided in (Reference re: Section 293 of the Criminal Code of Canada, 2011) is applied in the present case, then it cannot be said that the polygamy in the code cannot be made inapplicable for her and neither the clerk could be advised to issue a proper and valid marriage licence for her polygamous attachment. Again, for her argument that the prohibition so imposed offends the Charter, is not the case if the ratio of the case (Reference re: Section 293 of the Criminal Code of Canada, 2011), gets applicable, hence, Canadian Criminal Code (Canadian Criminal Code- R.S.C., c. C-46, section 293, 1985) is not in violation with the Charter (The Canadian Charter of Rights and Freedoms- CONSTITUTION ACT, 1982).
References
Alberta v Hutterian Brethren of Wilson Colony , 2009 SCC 37 (Supreme Court of Canada July 24, 2009).
Canadian Criminal Code- R.S.C., c. C-46, section 293. (1985). Canadian Criminal Code. Retrieved from http://laws-lois.justice.gc.ca/PDF/C-46.pdf
R. v. Oakes, [1986] 1 SCR 103 (Supreme Court of Canada February 28, 1986).
Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 (CanLII) (SUPREME COURT OF BRITISH COLUMBIA January 23, 2011). Retrieved from https://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc1588/2011bcsc1588.html
The Canadian Charter of Rights and Freedoms- CONSTITUTION ACT. (1982). The Canadian Charter of Rights and Freedoms- CONSTITUTION ACT. Retrieved from http://laws-lois.justice.gc.ca/eng/Const/page-15.html
United Nations Human Rights Commission. (1976). International Covenant on Civil and Political Rights. Retrieved from http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
United Nations Human Rights Commission. (1976). International Covenant on Economic, Social and Cultural Rights. Retrieved from http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
United Nations Human Rights Commission. (1981). Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination Against Women. Retrieved from http://www.ohchr.org/Documents/ProfessionalInterest/cedaw.pdf
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