Rational connections: Oakes, section 1 and the Charter's legal rights.

AuthorMathen, Carissima
PositionCanada - The Oakes Test: A Historical Perspective

Any review of Charter jurisprudence will rank R v Oakes at nr very near the top. The decision where the Supreme Court of Canada set out its approach to justifying rights limits under section I, Oakes has been cited hundreds of times over the last quarter-century. Much scholarship has been devoted to "the Oakes test," and to questions of deference, evidence and judicial review. One aspect, though, has tended to escape notice: rational connection. Given that the law at issue in Oakes foundered at this first stage of proportionality, its muted Legacy is intriguing. This article takes a fresh look at rational connection, arguing that it is essential to the overall process of justification and a rich source of principles that have particular purchase in the criminal law context. It urges a reinvigorated approach, noting a number of attendant benefits, including rendering section 1 more consistent with Oakes' original vision.

Toute analyse de la jurisprudence relative a la Charte doit classer l'arret R c Oakes au premier plan ou a tout le moins en haut de la liste. L'arret Oakes, soit la decisinn dans laquelle la Cour supreme du Canada expose sa methode permettant de justifier ales limites a des droits garantis en vertu de l'article 1, a ete cite a des centaines de reprises au cours du dernier quart de siecle. Une grande partie de la doctrine juridique a ete consacree au critere etabli dans Oakes et aux ques tions de retenue judiciaire, de preuve et de revision judiciaire. Un aspect qui, cependant, semble avoir echappe a la vigilance des analystes est le lien rationnel. Etant donne que la loi invoquee dans Oakes a echoue au test des la pcemiere etape du critere de proportinnnalite, le silence sur cette question est d'autant plus intriguant. Cet article jette donc un regard neuf sur la question du lien rationnel, en soutenant qu'il est un element essentiel du processus de iustification dans son ensemble et constitue une riche source de principes d'une valeur particulierement interessante dans le contexte du droit criminei. Il exhorte par consequent a I'adoption d'une approche revigoree, en observant un certain nombre d'avantages qui en decoulent, nutamment le fait que la coherence de I'article 1 avec la version originale formulee dans I'arret Oakes s'en trouve renforcee.


I was once asked to name my favourite Supreme Court of Canada decision. This is the kind of deceptively simple question that is tricky to answer. Numerous cases sprang to mind. As a former litigator for the Women's Education and Action Fund (LEAF), I enjoyed the thrill of decisions that vindicated a hard-fought position (R v Mills; (1) R v Darrach; (2) Vriend v Alberta (3) are some examples). There were, of course, disappointing moments too. But I did not choose any of the cases I had encountered in litigation. Instead, I chose R v Oakes. (4)

A review of Charters jurisprudence must rank Oakes at, or near, the very top. In a system committed to rights, but that does not protect them absolutely against all other interests, the ultimate question is one of justification. (6) As the decision where the Court first articulated its approach to, and the framework for, section 1 of the Charter (which guides that process of justification), Oakes has been cited repeatedly over the past twenty-five years. Indeed, the "Oakes test" has become synonymous with section I itself] Much has been written about various aspects of section 1 of the Charter, including: the role it assigns to the courts; the kind of evidence that is required for the state to make out a reasonable limit; and the relationship among section's 1 constitutive elements. (8) This article addresses a less examined aspect: the requirement that a rights limit be rationally connected to the purpose of the law in which it is found.

Though rational connection has not figured large in subsequent Charter jurisprudence, or received much scholarly attention, in Oakes it was the deciding factor. I have come to see it as essential to the overall question of justification and a rich source of principles that have particular purchase in the criminal law context. The Oakes approach to rational connection is a stringent one. I believe that a return to the understanding of rational connection that was articulated in Oakes would be a positive development. My sense of Oakes' potential is bolstered by recent cases that have emphasized a related, but also nascent, principle: that criminal law must not be arbitrary. In this article, I set out the beginnings of a project which examines the scope of arbitrariness, (9) urging a broad understanding of the concept that is rooted both in the fundamental justice guarantees under section 7 of the Charter and the requirement of rational connection set out in section 1.

This article will, first, outline the determinative role played by rational connection in Oakes itself (a role it has rarely played since (10)). Next, the article will briefly canvass how rational connection and its close relation, non-arbitrariness, have fared in post-Oakes criminal jurisprudence. Finally, it will argue for a reinvigorated approach to rational connection and consider some possible objections. Such an approach would be consistent with the powerful, prescient and rights-affirming vision of the Charter that Oakes articulates.


    Oakes did not appear to be a very significant appeal. In view of the decision's subsequent gravitational pull, (11) this seems incredible, but the hearing attracted no interventions by either Attorneys General or public interest litigants. (12) The case presented as a run-of-the-mill drug prosecution resting on section 8 of the Narcotic Control Act, (13) which incorporated a reverse onus into the offence of possession with intent to traffic. An accused person found to be in possession of a narcotic would have to prove that the possession was not for the purpose of trafficking; if the defendant was unable to do so, the Crown could rely on the mere fact of possession to demonstrate the fault element for the more serious offence. David Edwin Oakes argued that the law infringed his right to be presumed innocent under section 11 (d) of the Charter. His success at the prima facie stage led the Court to consider section 1 in detail for the first time. (14)

    At the beginning of the Charter era, one might have assumed that section 1 would act as a safeguard for the wishes of democratic majorities. R v Big M Drug Mart (15) put paid to this assumption by endorsing a broad and purposive approach to rights protection in which "democracy" assumes a constitutive rather than limiting role. (16) Oakes confirmed this. Far from being a tool to uphold majoritarian sentiment, (17) justification was characterized as a process that itself furthers the Charter's underlying purpose:

    [In] any s. 1 inquiry ... [t]he Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. (18) The justification of a rights infringement would be evaluated using standards "commensurate with the occasion" that the law had been found on a prima facie basis to violate the Constitution. (19) Specifically, after determining that a limit is prescribed by law, a court must be satisfied that the limit is inspired by a pressing and substantial objective and is achieved by means that are: rationally connected to that objective; minimally impairing of the right or freedom in question; and reflective of an appropriate and overall balance between the negative effect of the rights infringement and the law's benefit. (20)

    Before delving more into Oakes's treatment of rational connection, it is worth pointing out how little of Oakes actually deals with section 1. Much of the decision is taken up with the presumption of innocence, and two-thirds of the Court's discussion of "rationality" relates to that issue. (21) The context was the scope of protection offered by section 11 (d) of the Charter, in particular, its guarantee that guilt in a criminal proceeding must be proved "according to law." Two alternative readings were proposed: one requiring only the positivist safeguard that an offence must be defined through enacted law (with whatever content the legislature selects), (22) and one demanding something more.

    As previously mentioned, Oakes involved a reverse onus provision that applied to an essential element of a criminal offence. Now, it can be argued that reverse onuses merely reflect reality. Inferences are often drawn from facts, and sometimes the inference seems so logically necessary that it has the appearance of a legal requirement for example, the inference that a person intends the natural consequences of his or her actions. (23) The question is whether, and when, the drawing of an inference from a given fact is so compelling that Parliament may command the trier of fact to draw on it. Prior to Oakes, both English and Canadian courts had stated that such a command would be legitimate so long as there was a rational connection--i.e. a common-sense relationship between the proven and presumed fact. (24)

    The genius of Oakes is its insistence that, given a constitutional commitment to the presumption of innocence, a standard of mere rationality is insufficient because "[a] basic fact may rationally tend to prove a presumed fact, but not prove its existence beyond a reasonable doubt." (25) The presumption of innocence does not just mean a right to be tried according to...

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