Section 1: Controlling the Oakes Analysis

• Author: John A. Terry
• Profession: Torys LLP
• Pages: 479-495

Section

1:

Controlling

the

Oakes

Analysis

John

A.

Terry*

A.

INTRODUCTION

Section

1 is the

single most important provision

in the

Canadian Charter

of

Rights

and

Freedoms.

It

expressly requires

the

courts

to

weigh

the

inter-

ests

of

rights holders against those

of

government.

In

many

of the

Supreme

Court's most

famous

Charter

decisions

—

mandatory retire-

ment,

hate

literature,

pornography, tobacco advertising

legislation,

to

name

a few

—

it has

been

the

only

Charter

section really

at

issue.

It is the

section that requires

the

courts

to

confront

the

legitimacy

and

scope

of

their

mandate under

the

Charter

to

strike down

or

alter

the

laws

of

Parliament

and the

legislatures.

One of

Chief Justice Brian

Dickson's

many

contributions

to

Canadian jurisprudence

was to

give

us a

test

for

section

1 — the

Oakes

test.

That test,

first

enunciated

in R. v.

Oakes1

in

1986,

is

still

ritually

cited,

often

word

for

word,

by

counsel

and

judges

at all

court levels.

But it is

not a

rigid test.

The

test

has

proven

to be

remarkably

flexible,

malleable

—

even

manipulable.

In a

recent article,

my

colleague

Tim

Macklem

and

I

have criticized

the

manipulability

of the

Oakes

test

and

called

for a

*

Of

Torys

LLP

(Toronto).

1

[1986]

1

S.C.R.

103

[hereinafter

Oakes].

479

480

John

A.

Terry

more principled approach

to

section

1

interpretation.2

My

task today

is

more practical.

I

want

to

expose

the

inner workings

of the

Oakes

test,

show

how

they

are

subject

to

manipulation,

and

illustrate

how

lawyers

can

most

effectively

control

the

Oakes

analysis

to

make

the

strongest pos-

sible

constitutional

arguments.

B.

VARIABLES

VERSUS

FORMULA

To

understand

the

techniques courts have used

to

make

the

section

1

analysis more

flexible,

it is

important

at the

outset

to

distinguish between

the

formula

of the

Oakes

test

and the

variables

that

go

into

the

formula.

The

three variables that

go

into

the

Oakes

formula

are:

1.

the

objective

of the

legislation being challenged;

2.

the

legislative means chosen

to

carry

out the

objective;

and

3.

the right

that

has

been violated.

These

three

variables

are

plugged

into

the

formula

of the

Oakes

test.

The

formula

consists

of

four

questions.

The

government

(or

other party

seeking

to

uphold

the

legislation) must demonstrate that

the

answer

to

every

one of

these

questions

is

"yes."

The

four

questions are:

1.

is the

objective

sufficiently

important

to

override

a

constitutional

right?

2.

is the

means rationally related

to

that

objective?

3.

does

the

means impair

the

right

as

little

as

possible?

and

4

does

the

importance

of the

objective

outweigh

the

severity

and

importance

of the

violation

of the

right?

When

the

Oakes

test appeared

in

1986, many commentators were

surprised

at how

stringent

it

was. Their

focus

was on the

third question

in the

formula

—

"does

the

means impair

the

right

as

little

as

possible?"

This

is the

same test

as the

"least

drastic

means"

test reserved

in the

United States

for

only

the

most egregious violations

of

constitutional

rights.

It

appeared

from

Oakes

that

it

would

be

applied

in

Canada

for all

rights violations, both serious

and

less

significant.

See T.

Macklem

& J.

Terry,

"Making

the

Justification

Fit the

Breach"

(2000)

11

Supreme Court L.R. (2d) 575, where

we

argue

for a

Charter-based

contextual-

ism

— a

contextual approach

to s. 1

that

is

firmly

grounded within

the

pur-

pose

of the

right

at

issue.

2