Much of the debate about the Supreme Court’s treatment of section 1 of the Charter revolves around the issue of deference. When should the courts intervene to protect rights and when should they leave decisions about rights and limits to the legislatures? There is no easy answer. Too much deference can easily undermine the purpose of the Charter - to protect individual rights against the majority. Yet a court that demands an extensive factual record and the least intrusive means for rights impairment in all cases could unduly constrain the legislature’s efforts to govern in the broad public interest. In the end, while the Oakes test provides the basic framework for analysis, the courts have not adhered to a single test that serves in all cases to determine where to draw the line between protection of rights and respect for the legislative role and competing rights and claims. As the Supreme Court has made clear,114 the context of a particular case is of fundamental importance in the application of section 1 of the Charter.
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