E. Conclusion

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

Page 89

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.


BARAK, a, Proportionality: Constitutional Rights and Their Limitations (Cambridge: Cambridge University Press, 2012)

BEATTY, D, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004) c 5

BREDT, c, & a DODEK, "The Increasing Irrelevance of Section One" (2001) 14 Sup Ct L Rev (2d) 175

CHOUDHRY, s, "So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1" (2006) 34 Sup Ct L Rev (2d) 501

HIEBERT, J, Limiting Rights: The Dilemmas of Judicial Review (Montréal:

MCGILL-Queen’s University Press, 1996)

HOGG, PW, "Section 1 Revisited" (1991) 1 NJCL 1

JACKMAN, M, "Protecting Rights and Promoting Democracy: Judicial Review under Section 1 of the Cha...

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