Facts: a reverse burden presumption whereby a person who possessed drugs was presumed to be a drug trafficker

"The rights in the BOR may be limited only in terms of the law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including:

the statute engaged CCRF s 11(d), which provides that a criminal defendant has the right to be presumed innocent until proven guilty

there was a prima facie conflict with the provision - so need to consider whether it can be justified under s 1

setting justificatory criteria against which limitations on those rights must be measured

s 1 needs to be interpreted in context, having respect for dignity, social justice, equality, accommodation of difference

recognizes that rights and freedoms are not absolute: they may be limited when they conflict with collective goals

objective must be of sufficient importance to warrant overriding a protected right

An IDF Commander in the West Bank issued orders to take possession of plots of land in order to erect a separation fence. The route was chose to protect a nearby Israeli road. the land was forcibly acquired, but the owners were compensated.

but acknowledged that a number of rights would be violated - property, freedom of movement, freedom of occupation, education, religion, environment

the 4th Geneva Convention demanded a standard of substantive and procedural fairness for the claimants

the standard of review should be one of reasonability - the court is not an expert forum and should not displace the views of military commanders, who deserve special weight.

accepts that the military has a pressing objective, and that the fence is rationally related to it

but less deference should be afforded on the minimal impairment limb, especially when the injury is so severe

on the question of minimal impairment, acknowledges that there is another route available - but this is not the question. the question is whether the alternative would also meet the military's objectives

on the question of overall proportionality, concludes that the barrier fails. there are severe and acute harms on the local population; inhabitants were not compensated with alterantive lands; access restrictions were severe, and another route could be adopted

conventional wisdom is that it is not really possible to pass the second limb, and yet fail at the third (esp. in Canada)

after the 9/11 attacks, Congress enacted a resolution (the AUMF) authorizing the president to "use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided teh terrorists"

Hamdi, a US citizen, was captured in a battle zone and determined to be an "enemy combatant", allowing for unlimited executive detention

even though the AUMF does not explicitly authorize detention, it is clearly incidental to the use of force that enemy combatants be detained

rejected the government argument that such a hearing would be practically unworkable, and that the court should defer to this assessmnet

but acknowledged taht "the tension oten exists between the autonomy that the governmetn asserts is necessary ... and the process that a citizen contends he is due"

the appropriate test is that from Matthews v. Eldridge: the court will weigh the private interest that will be affected by the official action against the government's asserted interest, including the function involved and the burdens the government would face in providing greater process. The Matthews calculus then contemplates a judicious balancing of these concerns, through an analysis of the risk of an erroneous deprivation of the private interest if the process were reduced and the probable value, if any, of additional or substitute safeguards"

the right balance is neither absolutely no trial protections, nor a full criminal trial

"we therefore hold that a citizen-detainee seeking to challenge his classification ... must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker"

the constitution does not permit detention of citizens without charge in any circumstances

if it is really impossible to grant a trial, the government should use its cosntitutional power to suspend habeas corpus

clear statutory authorization would be required to allow detention here

"the defining character of American const. gov. is its constant tension between security and liberty, serving both by partial helpings of each"