The key issue is really how strictly the Oakes test is applied. The decided cases indicate that the stringency of review and particularly the application of the minimal impairment tests are both controversial and variable. Indeed, some judges quarrel with the term the Oakes "test." For example, La Forest J rejected the term, stating that Oakes did no more than establish some principles or guidelines to help in making a decision and insisted that these principles should be applied "flexibly, having regard to the specific factual and social context of each case."63
However, the majority view is that the Oakes approach remains helpful, provided it is applied flexibly, with sensitivity to the context of the particular law at issue.64The central element in the application of section 1 is the principle of least intrusive means. This aspect of the Oakes test is the focus of most litigation under the Charter. The least-intrusive-means principle is significant in assessing the impact the Charter has upon the role of
the judiciary. Proportionality review, especially the minimal impairment test, requires judges to weigh and assess the choices made by the legislature and the other policy options available. This is not an exercise considered to fall within the realm of judicial competence in non-constitutional cases, yet it is often the central question in Charter litigation. It is now clear that the Supreme Court will not apply the minimal impairment test mechanically or literally to strike down a law simply because it is possible to conceive of another measure that might be less intrusive on a protected freedom. As Gonthier J put it, "it is not sufficient that a judge, freed from all such constraints, could imagine a less restrictive alternative."65Even Justice Wilson, a staunch defender of the minimal impairment test, held that only where there are measures "clearly superior to the measures currently in use" would a law fail on this ground.66A unanimous judgment of the Court adopted the following formulation of the test by MCLACHLIN J:
The impairment must be "minimal," that is, the law must be carefully tailored so that the rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement . . . .67Although the Supreme Court has rejected the idea that "there is one category of cases in which a low standard of justification under section 1 is applied, and another category in which a higher standard is applied,"68it would seem that the standard of review is influenced by several factors.69
The Supreme Court has demonstrated a marked tendency to defer to legislative judgment and apply a relatively deferential standard of review in cases involving broad issues of social and economic policy, especially where the problem is complex and the implications of various solutions are not fully understood. Courts are experts in the matter of liberty, but not in the realm of social policy:
Where a complex regulatory response to a social problem is challenged, courts will generally take a more deferential posture throughout the s 1 analysis than they will when the impugned measure is a penal statute directly threatening the liberty of the accused.70
The Supreme Court has stated that "the role of the legislature demands deference from the courts to those types of policy decisions that the legislature is best placed to make."71The Court has recognized that the making of social policy "is a role properly assigned to the elected representatives of the people, who have at their disposal the necessary institutional resources to enable them to compile and assess social science evidence, to mediate between competing social interests and to reach out to protect vulnerable groups."72The Court has also indicated that deference to the legislature will usually be warranted on matters such as labour relations policy that involve complex issues of social and economic policy73and in relation to "environmental issues, where views and interests often conflict and precision is elusive."74One of the most striking examples of a relaxed standard of section 1 review is the case dealing with mandatory retirement.75The Supreme Court found that mandatory retirement at age sixty-five violated the right conferred by section 15 not to be discriminated against on grounds of age, but it held that the legislation permitting this form of discrimination should be upheld under section 1. In the view of the
majority of the Court, the issue was "whether the government had a reasonable basis, on the evidence tendered, for concluding that the legislation interferes as little as possible with a guaranteed right, given the government’s pressing and substantial objectives."76This is plainly a much more relaxed standard of review than that applied in cases dealing with those rights or freedoms that do not pose complex social-policy questions.
Chaoulli marked a dramatic break from the Supreme Court’s previous deferential approach to broad issues of social and economic policy. The case involved a challenge to Quebec’s prohibition of private medical insurance for procedures covered by the public health-care system. All seven judges77who heard the case agreed that the government’s objective was to preserve the integrity of the public health system and that this objective was pressing and substantial.78A majority of four judges took a strict approach to proportionality and stressed the government’s obligation under section 1 to justify any limitation on the basis of evidence. "The fact that the matter is complex, contentious or laden with social values does not mean that the courts can abdicate the responsibility vested in them by our Constitution to review legislation for Charter compliance when citizens challenge it."79The majority found that the prohibition on private health care was disproportionate in all respects. Chief Justice MCLACHLIN and Major J (Bastarache J concurring) concluded that there was no rational connection between the prohibition and the protection of the public health-care system. In addition, the "denial of access to timely and effective medical care to those who need it is not proportionate to the beneficial effects of the prohibition on private insurance to the health system as a whole."80Finally, they also concluded that "the physical and psychological suffering and risk of death that may result outweigh whatever benefit (and none has been demonstrated to us here) there may be to the system as a whole."81
In their dissent, Binnie and LEBEL JJ (Fish J concurring) stated that "the decision boils down to an application of the minimal impairment test. In respect of questions of social and economic policy, this test leaves a substantial margin of appreciation to the Quebec legislature."82
In their view, difficult choices in the rationing of scarce medical resources and attempts to ensure equal access to medical care to all should be left to the legislature. They also warned that
those who seek private health insurance are those who can afford it and can qualify for it. They are differentiated from the general population, not by their health problems, which are found in every group in society, but by their income status. We share the view of Dickson CJ that the Charter should not become an instrument to be used by the wealthy to ‘roll back’ the benefits of a legislative scheme that helps protect the poorer members of society.83It remains to be seen whether this 4:3 decision signals a permanent willingness of the Court to enter into complex, distributional, and multi-faceted aspects of public policy, such as the design of the health-care system.
The Supreme Court has explicitly stated that a more relaxed standard of scrutiny is called for where the legislation challenged represents an attempt by the legislature to reconcile competing claims or protect vulnerable groups. In these cases, the majority judges in Irwin Toy indicated:
If the legislature has made a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves weighing conflicting scientific evidence and allocating scarce resources on this basis, it is not for the court to second guess. That would only be to substitute one estimate for...