What is the test for applying for section 35 of the Constitution?
Canada (Federal), Canada
The following excerpt is from Native Council of Nova Scotia v. Canada (Attorney General), 2007 FC 45 (CanLII):
In my view, this matter does not lend itself to a section 35 of the Constitution Act, 1982 (section 35) analysis primarily because section 35 is not adequately engaged on the record before me. I will have more to say about this later in these reasons. However, it is important not to lose sight of the policy which dictates restraint in constitutional analysis, as “unnecessary constitutional pronouncements may prejudice future cases”: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97 at para. 9. Regarding the section 35 argument, this application is fraught with difficulties. I do not intend to itemize all of them, but I will highlight those which are particularly problematic.
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