R. v. Oakes 1986-1997: Back to the Drawing Board

The Supreme Court of Canada, in R. v. Oakes, identified two standards of justification in applying section 1. The first standard was normative. The second was methodological, called the Oakes test. The Court, until recently, applied the Oakes test mechanically and avoided the normative standard. More recently, in Egan v. Canada and RJR-MacDonald Inc. v. Canada (A.G.), it resorted to a normative analysis that is indeterminate and unpredictable. This article challenges both the mechanical application of the Oakes test and the Court\u27s new normative approach. It proposes, and illustrates, a preferable alternative that is both determinate and predictable. It is supported by appendices that analyze section 1 cases between 1986 and 1997

The Death of Oakes: Time for a Rights-Specific Approach?

In this paper, the authors develop their the sis that the time has come to abandon the universal framework for the application of section 1 of the Canadian Charter of Rights and Freedoms set out in R. v. Oakes. The paper describes how the Oakes test has been eroded, diluted and, in some cases, abandoned. The authors review the history of the application of the Oakes test, as well as recent developments in Supreme Court jurisprudence. The paper concludes that the Supreme Court’s struggles with Oakes are inherent in any attempt to apply a universal approach to section 1 analysis, and conclude that a rights-specific approach to section 1 balancing should be adopted

The Death of Oakes: Time for a Rights-Specific Approach?

In this paper, the authors develop their the sis that the time has come to abandon the universal framework for the application of section 1 of the Canadian Charter of Rights and Freedoms set out in R. v. Oakes. The paper describes how the Oakes test has been eroded, diluted and, in some cases, abandoned. The authors review the history of the application of the Oakes test, as well as recent developments in Supreme Court jurisprudence. The paper concludes that the Supreme Court’s struggles with Oakes are inherent in any attempt to apply a universal approach to section 1 analysis, and conclude that a rights-specific approach to section 1 balancing should be adopted

The Interpretation and Evolution of Section 1 of the Canadian Charter of Rights and Freedoms

The enactment of the Canadian Charter of Rights and Freedoms in 1982 brought rights and freedoms to all Canadians. All sections of the Charter are of great importance, however, one could argue that section 1 is the most important to understand. This is because section 1 not only guarantees the rights and freedoms within the Charter but also grants Courts the ability to place limits on those same rights and freedoms. Through analysis of case law from the Supreme Court of Canada, this research paper analyzes the wording of section 1, the influential case that came before R. v. Oakes [1986], the case that changed the interpretation and application of section 1 (R. v. Oakes), the cornerstone test that came out of it, the pivotal cases that came after that made adjustments to the Oakes test, criticisms, and two case studies

Terrorism and its legal aftermath: The limits on freedom of expression in Canada’s Anti-terrorism Act & National Security Act

This analysis aims to demonstrate how s. 83.221 in Bill C-51 is likely to violate freedom of expression guaranteed under the Charter. The first section employs the two-step Irwin Toy analysis to show that the speech offense infringes upon s. 2(b) of the Charter. The second section uses the Oakes test to determine whether the breach of freedom of expression is a reasonable limit. On whether the speech offense can be justified under s. 1 of the Charter as a reasonable limit, the legislation fails at the third and fourth step of the Oakes test. Section three of this paper argues that the amendments contained in Part 7 of the National Security Act 8 (also known as Bill C-59) are improvements to the speech crime in Bill C-51 because they are more likely to satisfy a proportionality test

The Dutiful Conscript: An Originalist View of Justice Wilson’s Conception of Charter Rights and Their Limits

During her relatively short time on the Supreme Court, Justice Wilson constructed an independent and distinct approach to the relationship between rights and their limits under the Charter. To Justice Wilson, judicial review was a duty imposed on the courts by the Charter through a deliberate and high-profile democratic process. Her conception of the judicial role under the Charter draws its sustenance from a strong historical claim about both the purpose and the process of rights entrenchment under the Charter. Properly understood, Justice Wilson’s vision of the relationship between rights and their limits under the Charter is an originalist one — one that is based on the assertion that the legitimacy of the judicial interpretative role finds its source in the events of 1980-82, when the Charter was enacted. In this paper, I analyze Justice Wilson’s conception of rights and limits under the Charter and demonstrate how it is anchored in a normative vision of the events of 1980-82. I the n demonstrate how this originalist conception of the Charter permeated Justice Wilson’s model of the relationship between rights and their limits, mostly, but not exclusively, through her section 1 jurisprudence. In this part, I distinguish between the multiple meanings of R. v. Oakes — the case, the framework and the test — and show how Justice Wilson focused on the much stricter Oakes framework while her colleagues were relaxing the Oakes test. This part further shows how Justice Wilson’s fidelity to the strictness of the Oakes framework translated into her staunch insistence on section 1 as the sole source of limits on rights, her fixation on onus and evidence and her understanding of the relationship between section 1 and other sections of the Charter. Finally, this paper ends with a brief conclusion on the the mes of constitutional duty and destiny

R. v. K.R.J.: Shifting the Balance of the Oakes Test from Minimal Impairment to Proportionality of Effects

The judgment of the Supreme Court in R. v. K.R.J. reflects an important potential change in the way proportionality analysis is conducted in the review of constitutional rights limitations under Canada’s Oakes test. Previously, most cases came down to the “Minimal Impairment” stage of Oakes. Its dominant role is challenged by KRJ, which places new weight on the subsequent and final “Proportionality of Effects” step. A permanent shift in the focus of the test to the Proportionality of Effects inquiry would be a landmark change in the thirty-year history of proportionality in Canada. The shift does not appear crafted to modify the substantive threshold for justifying rights limitations. Rather, it addresses conceptual issues with the way the test was previously applied. It is apt to accomplish these conceptual goals, enhancing the rationality and conceptual coherence of the justification jurisprudence. Also encompassed by the change, enhanced transparency of proportionality decisions is another benefit when considered in isolation, but is part of a larger issue of the appropriate style of judicial reasoning in Charter adjudication, a longstanding debate that is likely to continue. The potential change raises other important questions. Addressed here are how to understand different formulations of the Proportionality of Effects inquiry, the future division of labour between Minimal Impairment and Proportionality of Effects, and the impact of the change on well-known controversies concerning evidence in justification determinations. While this and other matters remain to be worked out, all in all, KRJ’s shift in emphasis within the Oakes test from Minimal Impairment to Proportionality of Effects constitutes a step in the right direction

pi-pi scattering: theory is ahead of experiment

I draw attention to a recent breakthrough in the field of low energy pion physics: the consequences of the hidden symmetry of the QCD Hamiltonian have successfully been incorporated in the general dispersive framework for the pi-pi scattering amplitude, which is due to Roy. The meagre experimental information about the imaginary parts at and above 0.8 GeV suffices to unambiguously and accurately pin down the scattering amplitude at lower energies. The recent Brookhaven data on the reaction K -> pi pi e nu provide a significant test of the theory. They imply that the Gell-Mann-Oakes-Renner relation is approximately valid -- the bulk of the pion mass indeed originates in the quark condensate.Comment: Talk given in honour of Arnulfo Zepeda at the X Mexican School of Particles and Fields, Playa del Carmen, Mexico, 2002, 8 p

Emerging Constitutional Norms: Continuous Judicial Amendment of the Constitution—The Proportionality Test as a Moving Target

The so-called proportionality test of modifications to the Canadian Constitution are discussed. The Constitution is, at times, described as a moving target for change

Spartan Daily March 2, 2010

Volume 134, Issue 17https://scholarworks.sjsu.edu/spartandaily/1233/thumbnail.jp