Oakes Test - Section de common law

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THE OAKES TEST: AN OLD GHOST IMPEDING BOLD NEW INITIATIVES Norman Siebrasse* The Oakes test is the central part of the jurisprudence of Section 1 of the Canadian Charter of Rights and Freedoms. One of its centralfeatures is a sharp separation between the evaluation of the objective sought to be attainedby the impugned law, and the means used to achieve that objective. Analysis of the Supreme Court of Canada's jurisprudence shows that, while analytically convenient, this sharp separationisproblematicin two respects. Firstly, it impedes direct analysis of the fundamental question which must be addressed in Section 1, namely whether the good of the impugned law is outweighed by the harm of the infringement of the right. As a result, the separation of the two inquiries is, in practice, very difficult to maintain. This is reflected in the extensive use made of the requirement of "minimal impairment" of the infringed right; this section of the Oakes test has risen to promise because it provides the most rhetorically convenientforuni in which objectives and means may be balanced directly, thus undermining theformally sharp analytic separation. Secondly, this separation embodies a particular view of the nature of rights. Despite the almost universal invocation of the Oakes test, many members of the Court hold a different and incompatible view of rights. The attempt to express this alternativeview within the incompatible framework of the Oakes test has been a source of formalism and tendentiousness.

Le test de l'arr9tOakes est le pivot de la jurisprudence sur l'article 1 de la Charte canadienne des droits et libert6s. Une des caractiristiquesprincipales de ce test est qu'il fait une distinction nette entre l'examen de l'objectifpoursuivipar la loi attaqude et l'examen des moyens utilisds pour atteindre cet objectif. L'analyse de la jurisprudence de la Cour supreme ddmontre que, bien qu'elle soit appropride sur le plan analytique, cette distinction marquiepose deux problemes. Premierement, elle a entravg l'analyse directe de la question fondamentale qui doit etre abordge dans le cadre de l'article1, c'est-ai-direest-ce que le prdjudice caus6 par la violation du droit est plus important que les avantages de la loi attaquie. Par cons6quent, il est tres difficile en pratique de maintenir cette distinction entre les deux examens. L'utilisationfriquente de l'exigence voulant qu'on porte < le moins possible atteinte au droit en question > reflete cette difficulti. Mais cette partie du test de l'arret Oakes promet, car elle offre le meilleur moyen sur le plan rhdtorique pour comparer directement les objectifs et les moyens, et attinuerainsi I' effet de cette distinction analytique marqude. Deuxiemement, cette distinction exprime une vision particuliere sur la naturedes droits. Malgrd que le test de l'arrdt Oakes soit gdngralement invoqud, bien des membres de la Cour envisagent les droits de points de vue diffdrents et incompatibles. Le fait

* LL.B (Queen's University, 1991). This article was written while the author was a Third Year law student. I wish to thank David Mullan of the Faculty of Law, Queen's University, for his encouragement and helpful comments on earlier drafts of this article. The title is with apologies to A.W. MacKay and T.A. Cromwell, Oakes: A Bold New Initiative Impeded by Old Ghosts 32 C.R. (3d) 221.

Ottawa Law ReviewlRevue de droit d' Ottawa Further, the author suggests that the view of rights which is incompatible with the Oakes test is preferable, especially in an interpretiveframework in which the scope of the guaranteed rights is broadly interpreted. The author concludes that because of these basic shortcomings the Oakes test should be replaced by a method of Section 1 analysis which directly balances the objectives of the legislation against the means used to achieve those objectives. Some suggestions are made as to the details of such a method.

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qu'on a essay6 d'exprimer une autre vision dans le cadre contradictoiredu test de l'arr&Oakes a jtd une source de formalisme et de manque d'objectiviti. L'auteur avance aussi que la vision des droits qui est incompatible avec le test de l' arret Oakes est prjfgrable, particulijrement dans un contexte d'interpritationlarge des droits garantis. Vu ces inconvdnientsfondamentaux, l'auteur conclut que le test de l'arret Oakes devrait etre remplacd par une mdthode d'analyse de l'article I qui compare directement les objectifs de la loi avec les moyens utilisds pour atteindreces objectifs. Enfin, ilfait des suggestions 6 propos de cette mithode d' analyse.

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The Oakes Test I. INTRODUCTION

The decision of the Supreme Court of Canada in R. v. Oakes' was handed down on February 28, 1986. It contained a detailed description of the method of analysis to be used under section 1 of the Canadian Charter of Rights and Freedoms.2 Since then it has become almost mandatory to cite the "Oakes test" in any consideration of section 1 of the Charter.Now, after roughly five years and 45 decisions dealing with section 1, the Oakes test is showing its age. The apparently ferocious requirement that the objective of the impugned legislation be "pressing and substantial" has turned out to be a paper tiger. The notionally three-part second stage, the proportionality test, has proved to have only one effective part, the requirement that the right in question be infringed "as little as (reasonably) possible."13 There is no doubt the Oakes test is in trouble. The question is what sort of trouble? Should the Supreme Court go back to (or start) applying the Oakes test in its full rigour? Or was it unworkable from the beginning? As the title of this article indicates, I am firmly of the latter view. The broad thrust of this article will be to argue that the formalism of the "Oakes test" obscures the most basic task of the Court under section 1 of the Charter,which, simply put, is to decide whether the good achieved by a law outweighs the harm caused by the rights the law violates. This obscuring effect may well be the great attraction of Oakes: it allows the Court to preserve an air of neutrality in making value-laden decisions. 4 But the myth of judicial neutrality is long since exploded, and the Chartermakes it imperative that the Court recognize this in its interpretive method. In the first part of this paper I will argue that the most basic feature of the Oakes analysis, the sharp separation between the inquiry into the legislative objective and the proportionality test, is misconceived. To do this I will examine two basic approaches to defining the legislative objective: a "narrow" focus which looks to the objective of the particular impugned provision (e.g., the objective of a reverse onus provision in gun-control licensing legislation is to help the Crown prove that the accused did not have a licence), and a broad approach, which looks to the purpose of the legislative scheme as a whole (e.g., the purpose of the same reverse onus is to help prevent dangerous weapons from falling

1 [1986] 1 S.C.R. 103, 50 C.R. (3d) 1 [hereinafter Oakes cited to S.C.R.]. 2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11. S. 1 of the Charter provides that: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 3 See table entitled "The Oakes test in the Supreme Court" at the end of this article for a chronological listing of the cases concerning s. 1 and a summary of the basis for each decision. 4 For an excellent early comment on Oakes which makes this point see P. A. Chapman, The Politics of Judging:Section 1 of the Charterof Rights and Freedoms (1986) 24 OSGOODE HALL L.J. 867 [hereinafter Chapman].

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into the wrong hands). 5 I will show that while these approaches have very different consequences in terms of the way the Oakes analysis will play out, neither approach is capable of maintaining the analytic distinction between the two stages of the Oakes analysis. As a result, the guidance provided by the Oakes test is minimal, and the formalism of Oakes can be manipulated in order to achieve any desired result. The second part of this paper suggests that the separation between the inquiry into the importance of the legislative objectives and the proportionality of the means used, as well as the "pressing and substantial" standard which is used in the first part of the Oakes analysis, rests on a controversial assumption about the nature of Charterrights: namely that a rights violation is per se important. I will argue that while this assumption attracts much rhetorical support, in practice it is most often honoured in the breach. This is not intended as a criticism, as I will argue that a proper appreciation of the role of the Court in Charter interpretation requires the rejection of the assumption that a rights violation is intrinsically important. This in turn clears the way for a complete rejection of the two-stage Oakes analysis. While this essay is primarily concerned with criticizing the Oakes test, I will conclude with some suggestions as to guidelines which could be used in a section 1 analysis which undertakes a direct balancing of the legislative objective against the rights violation. It is not possible to devise a "test" under section 1: this would be to deny the essentially political nature of Charter analysis. However, that Charter analysis is "political" in that it depends ultimately on the values of the individual justices does not mean it must be irrational. Rationality can no longer be identified with formalism; rather, we must recognize the rationality of reasoned disagreement over substantive value judgments. I should make it clear that this paper is not a review of the Court's approach to section 1: it is a critical analysis of the Oakes test itself. In identifying ways in which various decisions have manipulated the Oakes test I am generally not criticizing the judgment itself, as the point of this paper is that the Oakes test must be manipulated if an appropriate section 1 analysis is to be carried out. A.

The Oakes Test

The Oakes test has been recently restated by the Supreme Court in a convenient checklist form: 1. The objective of the impugned provision must be of sufficient

importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

5 These examples are taken from the judgments of Dickson C.J.C. and Lamer J. in R. v. Schwartz, [1988] 2 S.C.R. 443 at 471-74, 45 C.C.C. (3d) 97 at 117-20 [hereinafter Schwartz], which are discussed infra in text accompanying note 63.

The Oakes Test

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Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass a

proportionality test; that is to say they must: (a) be "rationally connected" to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right or freedom in question as "little as possible"; and (c) be such that their effects on the limitation of rights and free6 doms are proportional to the objective.

While it is tempting to refer simply to Part 2(b) and so forth, I will refer to the "objectives test" (Part 1) the "proportionality test" (Part 2 as a whole), and the "rational connection", "as little as possible" and "effects" tests (Parts 2(a),(b),(c)) in order to keep the content of the various stages in the forefront. II. CHARACTERIZING THE LEGISLATIVE OBJECTIVE: A BROAD OR NARROW Focus?

An early commentator noted that "[p]erhaps the most notable element of the Oakes test is the very high level of scrutiny that it appears to establish in the determination of an issue under section 1."7 Five years later, perhaps the most notable feature of the Oakes test is the almost complete impotence of the requirement that the objective of the legislation be pressing and substantial. This might be simply because our legislators do not often squander their limited time on trivial issues. If this explanation is correct, there is nothing to be concerned about. There is, however, reason to question this explanation. While the overall concern of a legislative scheme will almost always be important, it is less obvious that every aspect of the final legislation will address a substantial concern, rather than a nod to a vocal lobby group or administrative convenience. We must therefore ask whether the legislative objective at issue in the Oakes analysis should be defined in broad terms encompassing the entire legislative scheme, or in narrow terms focusing on the specific impugned provision. 8 Put baldly, the question seems to answer itself. The relevant objective must be the objective of the particular provision which the Court is being asked to strike down. Consistent with this, Mr. Justice Lamer has 6

Chaulk v. R. (1990), 2 C.R. (4th) 1 at 27-28 (S.C.C.), Lamer C.J.C. [here-

inafter Chaulk]. 7 Chapman, supra, note 4 at 883.

8 Joel Bakan has noted that "the way in which the Court characterizes the

purpose of a legislative provision will tilt the argument about means/ends propor-

tionality in one direction or the other." He has also suggested that the reason the Court prefers to use the rational connection and "as little as possible" tests rather than the objectives test or the effects test is that they are less overtly political. See

J. Bakan, Constitutional Arguments: Interpretation and Legitimacy in Canadian

ConstitutionalThought (1989) 27 OSGOODE HALL L.J. 123 at 166-167. This section of this paper is in part a sustained development of these arguments.

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often stressed that "[i]t is important, in a section 1 analysis, to identify with precision the measure which is the object of scrutiny and to focus on that measure to determine if it is justified 'in a free and democratic society'." 9 Despite this, the overwhelming practice of the Court has been to phrase the objective in extremely broad terms: the fight against the importation and trafficking of hard drugs; 10 protection of privacy;11 promoting highway safety;12 preservation of the French language;13 the regulation of the legal profession. 14 It is this tendency which has made the first part of the Oakes test almost irrelevant. But before concluding that an inquiry more narrowly focused on the impugned provision is preferable, we should take a closer look at the consequences of such an approach. A.

The Narrow Focus

An intriguing passage from the judgment of Lamer J. (as he then was) in Canadian Newspapers Co. v. Canada (A.G.) 15 is a suitable starting point. The case concerned the validity of section 442(3) (now section 486(3)) of the Criminal Code,' 6 which requires that the identity of the complainant in sexual assault cases be withheld at the complainant's request. In considering the argument that the provision did not impair the accused's right under section 2(b) of the Charter as little as possible, Lamer J. said: With respect, there seems to be a certain inconsistency in respondent's position. While it concedes the importance of the objective and the existence of a rational link between that objective and s. 442(3), respondent argues that the judge should retain a discretion. It is difficult to reconcile these submissions, because once these concessions are made, one is forced to admit that an absolute ban on publication is the only means to reach the desired objective.. .while it might impair less the 9 R. v. Penno, [1990] 2 S.C.R. 865 at 882, 80 C.R. (3d) 97 at 112, Lamer J.. The same judge has stated that "[iun determining the importance of the legislative objective it is necessary to focus on exactly what needs to be justified in each particular case": R. v. Logan, [1990] 2 S.C.R. 731 at 745, 58 C.C.C. (3d) 391 at 401; see also discussion of Chaulk at text accompanying note 23, infra. 10 See R. v. Smith, [1987] 1 S.C.R. 1045, 75 N.R. 321. 11Edmonton Journalv. Alberta (A.G.), [1989] 2 S.C.R. 1326, 64 D.L.R. (4th) 577 [hereinafter Edmonton Journal cited to S.C.R.]. 12 R. v. Ladouceur, [1990] 1 S.C.R. 1257, 21 M.V.R. (2d) 165 [hereinafter Ladouceur cited to S.C.R.], aff g (1987), 41 D.L.R. (4th) 682, 35 C.C.C. (3d) 240 (Ont.C.A.); R. v. Hufsky, [1988] 1 S.C.R. 621, 40 C.C.C. (3d) 398. 13 Ford v. Quebec (A.G.), (1988) 2 S.C.R. 712, 54 D.L.R. (4th) 577 [hereinafter Ford]. 14 Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, [1990] 2 W.W.R. 289 [hereinafter Andrews cited to S.C.R.]; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591,58 D.L.R. (4th) 317 [hereinafter Black cited to S.C.R.]. 15 [1988] 2 S.C.R. 122, 65 C.R. (3d) 50 [hereinafter CanadianNewspapers cited to S.C.R.]. 16

R.S.C. 1985, c. C-46.

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freedom of the press, the discretionary ban is not an7 option as it is not as effective in attaining Parliament's pressing goal.'

The logic is airtight. "As little as possible" implicitly means "as little as possible in order to achieve the legislative objective." Given a narrow focus on the impugned provision, the test is whether the means impair the right "as little as possible in order to achieve the precise objective of the impugned provision." In this form the test will almost always be satisfied as long as the provision advances the legislative objective in some way, that is, as long as the rational connection test is satisfied. 18 The dissenting judgment of McLachlin J. in R. v. Hess 19 is a striking application of this logic. The issue was the constitutionality of section 146(1)20 of the Criminal Code, which provided for absolute liability for the crime of sexual intercourse with a girl under the age of 14. McLachlin J. agreed with the majority that the legislative objective of deterring premature intercourse was of substantial importance, then noted that the absolute liability provision was rationally connected to the objective because "[t]here can be no question but that the imposition of absolute liability in section 146(1) has an additional deterrent effect" 2 1 as compared to a defence of due diligence. Then, in considering the question of minimal impairment of section 7 she pointed out that: [T]he only way of avoiding or diminishing the infringement of the accused's right not to be convicted in the absence of a guilty mind would be by introducing a defence of due diligence or reasonable belief. Neither of those alternatives provides as effective a deterrence as removal of all defences based on the accused's lack of knowledge of 22 the victim's age.

Similarly, in Chaulk, which questioned whether the Criminal Code requirement that an accused who wishes to plead not guilty by reason of insanity must establish his insanity on the balance of probabilities violates section 11 (d) of the Charter, Lamer C.J.C., consistently with his earlier dicta, emphasized that it is "necessary to focus on the presumption and on the reversal of the burden of proof and ask: what was CanadianNewspapers, supra, note 15 at 132. 18 This essay assumes that the rational connection test is generally satisfied, as that part of the proportionality test is peripheral to my concerns. I would point out that I subscribe to the view that reverse onus clauses are objectionable not because they are not rationally connected to the state objective of controlling crime, but because their effects are overbroad. See R. Elliot, The Supreme Courtof Canada and Section 1: The Erosion of the Common Front (1987) 12 QUEEN'S L.J. 277 at 317-18 [hereinafter Elliot]. The rational connection test is often invoked when the legislation is found to fail all aspects of the proportionality test: I would suggest that in this context as well the lack of rational connection often refers to overbreadth. 19 [19901 6 W.W.R. 289, 59 C.C.C. (3d) 161 (S.C.C.). Gonthier J. concurred in McLachlin's dissent [hereinafter Hess cited to C.C.C.]. 20 Now repealed and replaced by s. 153(1) of the Criminal Code. 21 Supra, note 19 at 195 (emphasis added). 22 Ibid. at 195 (emphasis added). 17

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Parliament's specific objective in forcing an accused who raises s. 16 to prove his or her insanity on a balance of probabilities?" 23 He decided that the specific objective was to avoid imposing on the prosecution the difficult burden of proving sanity. In addressing the proportionality test Lamer C.J.C. noted that "when assessing the alternative means which were available to Parliament, it is important to consider whether a less intrusive means would achieve the "same" objective or would achieve the same objective as effectively. '24 With this in mind he pointed out that "[i]f insanity were easier for an accused to establish, the defence would be successfully invoked more often (even if, statistically, it is still infrequently raised). Thus, putting a lesser burden on the accused would not have achieved the objective which is achieved by s. 16(4)."25 This illustrates perfectly Professor Bakan's comment that "[if the purpose is tautologically equivalent to the legislative provision, then there will be an absolute fit - no other provision would be capable of achieving the '26 purpose. In these cases a narrow focus on the impugned provision and a strict reading of "as little as possible" have caused this part of the proportionality test to become absorbed into the rational connection test. This means that, once over the hurdle of finding that the objective is pressing and substantial, the proportionality requirement will lead almost directly to its third part, the effects test. The Court has shown a remarkable reluctance to use the effects test: in fact, it has never been explicitly used as the sole reason for refusing to save impugned legislation under section 1.27 I would suggest 23 24

Supra, note 6 at 29. Ibid. at 32.

25 Ibid.

26 Supra, note 8 at 166. It is not quite accurate to say that a less intrusive means could never be found, even given a narrow focus on the impugned provision. For instance, in R. v. Lee, [1989] 2 S.C.R. 1384, 73 C.R. (3d) 257 [hereinafter Lee cited to S.C.R.] the question was the validity of a provision which denied a jury trial to an accused who elected trial by jury and failed to appear without good reason. If the only purpose of the provision is to deter accused persons from not showing up at trial (a premise not accepted by Lamer in his judgment) then presumably any given degree of deterrence could be reached by means of a penalty for failure to appear, rather than by denial of the right to a jury trial. This was, in part, the logic of Wilson J. in that case. 27 The only clear use of the effects test as a sole basis for striking down legislation supports the contention that the Court is reluctant to use the effects test explicitly. The effects test was used implicitly by Sopinka J. in dissent (Dickson C.J.C., Wilson, LaForest JJ. concurring) in Ladouceur,supra, note 11, who argued that allowing police to stop cars at random to check for sobriety and valid licences would have the intolerable effect of allowing the police to use such random stops for purposes of harassment. This supports the contention that the Court is reluctant to use the effects test, as in making this argument Sopinka J. at 1264 avoided the Oakes analysis almost entirely, relying instead on the approach to s. I of Tarnopolsky J.A. in the Court of Appeal. Apparently bowing to the pressure of common practice, he did mention Oakes in passing in his conclusion at 1268, but implied that the random stop power failed the rational connection test. The majority, however, dealt with his objection at 1287 under the aegis of the effects test, which, with respect, is where it belongs.

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two reasons for this. In the first place, the third part of the proportionality test is the least "test-like" part of the Oakes analysis, and has always been explicitly a matter of balancing competing concerns. In Oakes Dickson C.J.C. elaborated on it as follows: Some limits on rights and freedoms protected by the Charter will be

more serious than others in terms of the nature of the right or freedom

violated, the extent of the violation, and the degree to which the

measures which impose the limit trench upon the integral principles of a free and democratic society .... The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justifiable in a free and democratic 28

society.

This kind of cost-benefit balancing is what would traditionally be described as a matter of policy, not law: 29 to strike down legislation at this stage would sit ill with the Court's insistence that its role "is not to second-guess the wisdom of policy choices made by our legislators. '30 Further, recall that the effects test is the final stage of the Oakes analysis. When the Court arrives at this hurdle it has already concluded that the first parts of the Oakes test are satisfied: we know therefore that the government is pursuing a pressing and substantial objective by the least intrusive means possible. To conclude that the legislation fails at this point is to say that the government is constitutionally forbidden from using the least intrusive means possible to achieve an objective which is of pressing and substantial importance in a free and democratic society. Lamer C.J.C. showed a sensitivity to this in his discussion of the effects test in Chaulk, saying "the Charter does not require Parliament to 'roll the dice' in its effort to achieve 'pressing and substantial' objectives in order to adopt the absolutely least intrusive legislative provision."'3 1 In the same spirit, McLachlin J. in Hess concluded her consideration of the effects test by saying: "I need not reiterate the seriousness of the problems addressed by section 146(1) of the Criminal Code, nor the arguments suggesting there is no alternative way of dealing with them as effectively as by a provision which leaves no defence based on ignorance of age of the victim. '32 In theory, such reluctance is unwarranted. The finding that the objective of the legislation warrants overriding a protected right is only a minimum requirement; there is little rhetorical barrier to saying that the government is constitutionally forbidden from using the least intruSupra, note 1 at 139-40. This point is made by Professor Bakan, supra, note 8 at 164-65. Reference Re ss. 193 and 195(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 at 1199,77 C.R. (3d) 1 at 63, Lamer J. [hereinafter ManitobaReference cited to S.C.R.]. See also Chaulk, supra,note 6 at 34, Lamer C.J.C.; Andrews, supra, note 14 at 190, McIntyre J.; R. v. EdwardsBooks and Art Ltd., [1986] 2 S.C.R. 713 at 781-82, 71 N.R. 161 at 240, Dickson C.J.C. [hereinafter Edwards Books cited to S.C.R.]; and see cases cited by Bakan, supra, note 8 at 152 n. 108. 31 Supra, note 6 at 34. 32 Supra, note 19 at 199. 28

29 30

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sive means for achieving an objective which just barely warrants overriding a right in the first place. The effects test requires reassessing the importance of the legislative objective to determine whether it not only warrants overriding a right (which would have been answered in the affirmative at the stage of the objectives test), but also whether it warrants overriding a right to the degree and in the manner of the particular infringement in issue. The objectives test assesses the legislative objective against an abstract standard which is common to all rights, and which must therefore be only a minimum standard. The effects test measures the legislative objective against the particular violation in question, which, if it is a serious one, will require more than a minimally important objective. While this may be the theory, in practice two rhetorical problems arise. In the first place the separation between objectives test and proportionality test implies that the importance of the objective has been determined in the first stage and needs no reassessment. Perhaps more significantly, "pressing and substantial" simply does not sound like a minimum. In any case, it should be apparent that there is an enormous rhetorical advantage to finding that the legislation fails the second part of the proportionality test rather than the third. The Court is then not saying that the state is effectively precluded from achieving its laudable goal, but only that there is a better way of going about it. B.

The Broad Focus

It may be, then, that one reason for the use of a broad approach, which focuses on the objective of the legislative scheme as a whole, is that it allows the "as little as possible" test to be used rather than the effects test. Consider the judgment of Wilson J., speaking for the majority in Hess. Like McLachlin J., she found that the legislative objective of deterring premature intercourse was sufficiently important to warrant overriding a constitutionally protected right, and that the reverse onus provision was rationally connected to this objective. 33 However, in considering whether section 7 had been impaired as little as possible, she cited the new provision of the Criminal Code, providing for a defence of due diligence, which had replaced the absolute liability provision at issue in the case, and argued that "Parliament had concluded '34 that society's needs can in fact be served by a less stringent provision. 33

In considering the argument that absolute liability provided an additional

deterrent, Wilson J. said that, "[w]here one is dealing with the potential for life imprisonment it is not good enough, in my view, to rely on intuition and speculation about the potential deterrent effect of an absolute liability offence" (Hess, supra,

note 19 at 175). This seems to be a denial that there is a rational connection between

the provision and the objective. However Wilson J. explicitly chose to deal with the deterrence argument under the heading of "minimal impairment" rather than "rational connection," apparently because she concedes the possibility of some deterrent effect in some cases. Speaking strictly, as McLachlin J. does, this consti-

tutes a rational connection. 34

Supra, note 19 at 176-77.

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Here the legislative objective is implicitly identified as "serving society's needs." No doubt this refers to society's need to deter premature intercourse, but even so, we find ourselves asking the rather nebulous question "is s. 7 infringed as little as possible in order to deter premature intercourse?" Absolute liability will presumably provide deterrence. So will strict liability, and so will a requirement of full mens rea. What level of deterrence is required? If it is the specific level of deterrence provided by absolute liability, then surely McLachlin J.'s reasoning is correct. If it is some other level of deterrence the "same" 35 objective will not be achieved. This shows that a broad focus in the first branch of the Oakes test turns the legislative objective into a moving target. When applying the proportionality test we can no longer speak of "the" legislative objective, as if the process were one of testing various means against a single defined end, because there is no well-defined legislative objective. Instead, various combinations of goals and the means required to achieve them are weighed against one another. In Hess, the majority decided that the lesser infringement of the right, coupled with the more limited deterrence provided by strict liability, was a better trade-off than the greater infringement and higher deterrence provided by absolute liability: in other words, a value-laden policy choice was made. This also completes the explanation of why the third part of the proportionality test, the effects test, is never used. Under the narrow focus it is rhetorically distasteful, and under the broad focus it is completely redundant. If, using a broad focus, the Court finds that a less intrusive scheme could have accomplished the "same" goal, then of course the effects of the impugned scheme will be overbroad when compared to the preferred scheme. The result is that the "as little as possible" test becomes the effects test under another name. This is problematic in several respects. As noted earlier, the implication of legislation failing the "as little as possible" test is that the legislature can still achieve its objective, but must use other means. 35 This example is intended to illustrate the effect on the proportionality test of characterizing the legislative objective at a high level of generality. However,

Wilson J.'s (uncharacteristic) appeal to the judgment of Parliament cannot pass without comment. If Parliament, after having experimented with the due diligence defence, decided that in fact society's needs were not being met, would absolute liability in this context thereby become constitutional? Such a concern may have motivated the comment of Dickson C.J.C. in the Manitoba Reference, supra, note 30 at 1138, reiterating a point he had made in Edwards Books, supra, note 30 at 783, that "it is not the role of this Court to devise legislation that is constitutionally valid, or to pass on the validity of schemes which are not directly before it, or to consider what legislation might be the most desirable." Nonetheless, it does seem unfair that if Victor Hess had committed the same act under the current legislation he would not have his rights infringed at all (or at least to a significantly lesser extent). Perhaps the real force of Wilson J.'s argument is that the rule that a person must be tried under the law existing at the time of the offence should not apply when this would lead to a breach of a Charter right. From this perspective Hess is an example of the way in which the Oakes analysis unduly constrains the scope of possible constitutional arguments.

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Under a broad analysis in which the legislative end is varied as well as the means, this implication is unwarranted, with the result that the legislature may be prohibited from achieving an end which has been found to be pressing and substantial. This is not necessarily a serious objection, because, as will be discussed below, a goal may be found to be pressing and substantial in order to get to the proportionality test: a finding that an objective is pressing and substantial may simply reflect a reluctance to use the objectives test. At the very least however, the confusion caused by the labelling exercise is regrettable. A broad approach also allows a manipulation which can be used to uphold legislation rather than strike it down. Goals which would have failed the pressing and substantial test may be imported into the proportionality analysis and justified by reference to a different goal which has been found pressing and substantial. For instance, in McKinney v. University of Guelph,36 LaForest J. found that the objectives of the university's mandatory retirement policy were to "maintain excellence by permitting flexibility in resource allocation and faculty renewal" and to preserve academic freedom. 37 But as Wilson J. noted "it is solely because of the government's policy of economic restraint that appointment opportunities for younger academics are limited. '38 In other words, we might equally well say that the objective of mandatory retirement is to save money. 39 The breach of the right is caused by the tension in the dual goals of fostering excellence and saving money. The "real" objective can be defined either way depending on whether the legislation is to be struck down or saved. But the most fundamental objection to this disguised application of the effects test is that it turns the Oakes test into a sham. As noted earlier, the effects test is not a "test" at all, but requires a judgment as to whether a particular cost/benefit trade-off is an acceptable one. Under the effects test itself, this is explicit. The nature of the exercise is concealed by the "as little as possible" test, but not changed. As a result standards and criteria to be used in the balancing process need not be articulated or systematized. Because we have the Oakes test, no other framework is thought necessary, but because Oakes provides no real guidance, each case becomes an ad hoc exercise. While this would be a concern while using the effects test even under a narrow focus, a broad focus makes the problem worse by depriving the objectives test of any content. Under a broad focus concerns about the importance of the legislative objective are dealt with under the "as little as possible" test in considering whether alternative trade-offs are preferable. The basic feature of the Oakes test, the separation between the objectives test and proportionality test, is entirely circumvented. 36 [1990] 3 S.C.R. 229, 76 D.L.R. (4th) 545 (S.C.C.) [hereinafter McKinney cited to D.L.R.]. 37 Ibid. at 648. 38 Ibid. at 618. 39 Again, assuming that mandatory retirement is rationally connected to this goal, which L'Heureux-Dub6 strongly contests.

1991] C.

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Taking the Objectives Test Seriously: A Return to the Narrow Focus?

Even if the above criticisms are accepted, it might be suggested that the Oakes test could be saved by adopting a narrow approach and taking the objectives test more seriously. After all, a reluctance to use the effects test is only problematic if objectives which are not in fact pressing and substantial are deemed such at the first stage of the Oakes inquiry: if the legislative objective is pressing and substantial the Court is right to be reluctant to prevent it from being achieved. The suggestion that more emphasis should be placed on the first branch of the Oakes test should not be surprising, as our original motivation for looking more closely at a narrowly focused approach is that a broader approach makes the inquiry into legislative objective redundant. A determination to use a narrow focus runs into an initial difficulty. It is important that if a particular objective warrants overriding a protected right, that same objective must be the focus of the proportionality test. However, it may be difficult to determine what "the" objective of the particular provision is. For instance, in Hess, McLachlin J.'s proportionality analysis posited a legislative objective of providing the same amount of deterrence as absolute liability. However, she characterized the objective in much broader terms in the first part of her inquiry, namely, as "the protection of female children from the harms which may result from premature sexual intercourse and pregnancy .... [and] the protection of society from the impact of the social problems which sexual intercourse with children may produce. '40 It is easy to conclude that this broadly defined objective is pressing and substantial. It is less obvious that the objective of providing the additional degree of deterrent created by absolute liability is pressing and substantial. Similarly, given the rate of highway accidents, the objectives of reducing impaired driving and insuring that vehicles are roadworthy are clearly very important. It is less clear that providing the additional deterrent of random stops as opposed to fixed point stops is sufficiently important to override a guaranteed right.4 1 In sum, it is important to remain consistent in level of generalization in order to avoid justifying the proportionality of a particular provision by reference to the objective of the wider legislation. This may seem obvious, but note that the distinction between a narrow focus on the impugned provision and a broad focus on the legislative scheme as a whole is to a large extent an artificial one. The distinction is easily made where a provision such as a reverse onus clause, which is clearly not at the heart of the legislative scheme, is at issue. On the other hand, in some cases it is very difficult to even identify the "specific provision" at the first stage of the Oakes analysis. The objective of absolute liability for statutory rape might be to provide an additional increment of deterrence above that provided by strict liability, 40 41

Supra, note 19 at 193. See Ladouceur, supra, note 12.

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or it might be to provide an additional deterrent above that provided by a full mens rea requirement. If the offence of statutory rape had been one of a group of offenses - perhaps sexual offenses - for which strict liability was prescribed, with a particular provision increasing the standard for statutory rape, the first of these alternatives might have seemed obvious; with statutory rape standing alone as a Criminal Code provision a broadly defined objective of deterring premature intercourse seems more appropriate. In other words, there is no "specific objective" of the impugned provision: even taking a narrowly focused approach, the objective of the specific provision is in large part an artifact of the structure of the legislative scheme. It might be said that this apparent difficulty stems from an overly intuitionistic approach. If we are to take the objectives test seriously, we must take care to define the legislative objective in conformity with the purposes and structure of the Oakes analysis. The rationale of the narrow focus is that the purpose of section 1 analysis is to ensure that the objective gained through the breach of the rightwarrants the breach: "the" provision must therefore be defined as that aspect of the legislation which breaches the right. If, for example, strict liability does not violate the presumption of innocence, then "the" objective in Hess would be providing the additional amount of deterrence provided by absolute liability over strict liability. On the other hand, if strict liability does violate the presumption of innocence, the objective is to provide the additional deterrence of absolute liability over full mens rea. This definition is required when using a narrow focus to insure that the Oakes analysis always remains fixed on the justification of the breach of the right. Otherwise, as the examples given above indicate, the means used may be found proportionate to an objective which is important, but which could be accomplished in large part without any breach at all. Although mandated by a narrow focus, this definition is incompatible with the Oakes analysis because it requires that the objectives test and the proportionality test be mixed. "The" objective of the provision (absolute liability) in issue cannot be determined until strict liability has been identified as "the" alternative to be considered. Normally identification of alternative schemes does not occur until the proportionality stage of the analysis, after "the" objective has been identified. Not only must the alternative schemes be identified before the legislative objective can be determined, but we must also determine whether the alternatives breach a right in order to determine which is "the" alternative. While not impossible, this amounts to mixing the "as little as possible" test and the objectives test, negating the one-step-at-a-time approach which is such an attractive feature of the Oakes test as it stands. Further, in determining whether providing the additional deterrent effect of absolute liability is pressing and substantial we will have to ask whether it provides any additional deterrent at all: the rational connection test will also have to be imported into the objectives test.

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Another aspect of this problem is that the objectives test will become almost impossible to apply. How could the Court decide that providing an additional increment of deterrence over mens rea is pressing and substantial, while providing additional deterrence over strict liability is not? Recall that the narrow focus requires that we take the objectives test seriously. The Court would have to be prepared to strike down legislation on the basis of such distinctions. D.

Rejecting the Objectives Test

The difficulties with using a narrow focus on the legislative objective reflect a fundamental theoretical difficulty with the Oakes test, namely the artificiality of the separation between the objectives test and the proportionality test. The real issue in section 1 analysis is whether the impugned provision embodies an acceptable trade-off between the harm of the rights violation and the aims of the legislative objective. In Hess, for instance, the question is whether strict liability provides a better trade-off between a rights violation and deterrence than does absolute liability. The Oakes test obscures this by focusing first on the legislative objective and then on the means used to achieve it, rather than looking directly at the competing trade-offs. The artificiality of the two-stage analysis manifests itself in both the narrow and the broad approach: as we have seen, either approach ultimately requires the two stages to be merged. Using a broad focus, both ends and means are considered simultaneously as competing trade-offs are evaluated under the "as little as possible" test. With a narrow focus on the legislative objective the same merging of the objectives inquiry and proportionality test occurs in the definition of the legislative objective. This result should not be too disturbing. If the purpose of section 1 is to decide whether the good of the legislative objective outweighs the bad of the rights infringement, we should reject any approach which requires us to strike the balance after having weighed only one side of the scales. The Court's general reluctance to strike down legislation solely on the basis of the objectives test shows a sensitivity to this problem. While I have argued that even a narrow focus on the legislative objective requires that proportionality concerns be imported into a correct definition of the legislative objective, an intuitionistic version of the narrowly focused approach truly does require the Court to undertake such a one-sided balancing of concerns. The use of a broad definition of the legislative objective, on the other hand, is a technique which allows a judge to evade the first part of the Oakes test without overt compromise of the stringent "pressing and substantial" standard. If the specific objective of the impugned provision is of dubious importance, the level of generality used in describing the legislative scheme can be expanded. For instance, we might think that a provision whose objective "seems to be to further the orderly and efficient adminstration of justice" could

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hardly be characterized as pressing and substantial: take a slightly wider perspective and add "and thereby [furthering] public respect for the criminal justice system and the jury trial process in particular," 42 and the first hurdle of the Oakes test is overcome. Even in cases where a narrow focus is used a tendentious description of the legislative objective signals a reluctance to use the objectives test: for instance, in Chaulk the objective of the presumption of sanity was "to avoid placing on the Crown the impossibly onerous burden of 43 disproving insanity, and to thereby secure the conviction of the guilty. This certainly sounds like a pressing objective, but as Wilson J. noted there was no evidence that the Crown would in fact have any real difficulty in proving sanity. 44 A preference for the proportionality test over the objectives test, which is similarly difficult to reconcile with the "pressing and substantial" standard, was also shown in the Manitoba Reference,45 in particular in Wilson J.'s judgment. 46 She found that the objective of the provision preventing communication for the purposes of prostitution in a public place was prevention of the social nuisance arising. Deference to the legislative judgment was explicit in her remark that "[t]he legislature clearly believes that public sensitivities are offended by the sight of prostitutes negotiating openly for the sale of their bodies and customers negotiating perhaps somewhat less openly for their purchase. '47 And what besides deference to the legislature can explain why both Dickson C.J.C. and Wilson J. found that concern for street and sidewalk congestion, and coddling "public sensitivities", were sufficient to warrant overriding the right to free expression? 48 The same reluctance to use the objectives test surfaced quite explicitly in R. v. Holmes.49 The appellant, charged with unlawful possession of housebreaking instruments, argued under section 1 "that although the objective of section 309(1), the suppression of housebreaking and safe-breaking, is not a trivial objective, it is not of such grave significance as to justify the violation of so central a right as the presumption of innocence. '50 This argument is a fairly obvious one if "pressing and substantial" means more than "not trivial." However, rather than address the question directly, Dickson C.J.C. responded by simply refusing to deal with the matter: While not wishing to downplay the pressing and substantial interest in

curbing this sort of unlawful activity, and assuming that it is sufficiently

weighty to justify curbing fundamental freedoms constitutionally

Lee, supra, note 26 at 1417. Chaulk, supra, note 6 at 29. 44 Ibid. at 59. 42

41

Supra, note 30. Concurred in by Dickson C.J.C. for the plurality on this point. 47 Manitoba Reference, supra, note 30 at 1211. 48 None of the counsel seriously argued to the contrary: see ibid. at 1212, Wilson J. This must be an implicit acknowledgment of the futility of pursuing the "pressing and substantial" objective test in the Supreme Court. 49 [1988] 1 S.C.R. 914, 85 N.R. 21 [hereinafter Holmes cited to S.C.R.]. 50 Ibid. at 936-37. 45

46

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protected by the Charter, it is my view that s. 309(1) cannot, in any event, be justified under s. 1, by virtue of the fact that the provision 51 does not meet the proportionality test ....

One source of the reluctance to use the objectives test lies in the nature of the "pressing and substantial" requirement. How does the Court decide whether an objective satisfies this criterion? We should note that the Court has not explicitly stated criteria to be used in determining the importance of the legislative objective. Pages are often spent in determining exactly what the objective is, but its importance is usually assessed with conclusory statements such as "In my view, this objective is sufficiently important to warrant limiting constitutionally protected rights .... -".52The paucity of reasoning highlights the value-laden, discretionary nature of a determination of the importance of a piece of legislation. As with the effects test, the Court is evincing a reluctance to make "political" judgments. Indeed, the objectives test in many ways is more problematic in this regard than the effects test. In the first place, arguably the best evidence that an objective is pressing and substantial in a free and democratic society is that the democratically elected legislature has devoted its limited time and resources to passing an act to deal with it. I suggested earlier that the importance of specific provisions might be more easily questioned than an entire legislative scheme. Nonetheless, as long as the standard is high, as the Oakes standard purportedly is, the Court will have to substitute its opinion for that of the legislature even in cases where the objective is not obviously trivial. A conclusory pronouncement as to the importance of the legislative objective is acceptable when the Court defers to the judgment of the legislature: it would be much less palatable were the Court to strike down legislation on this basis. While the effects test requires a discretionary choice between competing trade-offs, the means used to achieve the goals are in issue as well as the objective itself. It is hardly novel to suggest that the courts are better at assessing the means used to reach an end chosen by the legislature, rather than the end itself, 53 and given that a concern with deference to the legislature is often made explicit in the context of the proportionality test, 54 which nominally assesses only the means, it at 939. Chaulk, supra, note 6 at 30, Lamer C.J.C. 53 For example, J.H. Ely's enormously influential book, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REvIEW (Cambridge: Havard University Press, 1980) argues that the proper function for judicial review is to ensure the proper functioning of the democratic process. In the context of the Charter,Eric Colvin has argued that the courts should interpret s. 7 not to restrict the social ends chosen 5' Ibid. 52

by the legislature, but only the means used to achieve those ends: see E. Colvin, Section Seven of the CanadianCharterof Rights and Freedoms (1989) 68 CAN. BAR REV. 560. 54 See Chaulk, supra, note 6 at 33, Lamer C.J.C.; McKinney, supra, note 36 at 654, LaForest J.; Edwards Books, supra, note 30 at 768-69, Dickson C.J.; United States of America v. Cotroni, [1989] 1 S.C.R. 1469 at 1489, 48 C.C.C. (3d) 193 at 218-19, LaForest J.

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would be surprising if the Court did not also defer to the legislature's choice of objective. As well, a discussion of alternatives, whether they would achieve exactly the same objective or not, provides more scope for reasoned debate than a simple judgment as to the abstract "importance" of a legislative provision. Note that an attraction of the "as little as possible" test is that the Court avoids passing judgment on the importance of the legislative objective even when striking down legislation. III. Two VIEWS OF RIGHTS

A reluctance to strike down legislation at the first stage of the Oakes inquiry does not amount to a reluctance to strike down legislation: it is a reluctance to strike down legislation after having considered only the objective of the legislation, and not its effects. Of course, when section 1 is reached we know that one effect of the legislation is to violate a right. This means that in a sense the first stage of the Oakes test is a balancing process in which the particular objective of the legislation in question is balanced against the abstract "effect" of a rights violation, rather than against the particularized effect of the legislation. This part of my paper will argue that the Supreme Court of Canada is split on the question of whether it is desirable or possible to undertake to balance a particular objective against an abstract harm in this way. For convenience, I will call the approach which holds such balancing is possible "rights reification" and that which does not, "contextualism". I will argue that the contextual approach is more internally consistent, and is more appropriate to the political role the Court must play in section 1 analysis. That the Supreme Court is split on its approach to the Charter is well known. For instance, Marc Gold has identified Madame Justice Wilson and, to a slightly lesser extent, Chief Justice Lamer as "enthusiasts" in their approach to the Charter, with Mr. Justice McIntyre as the most consistent "resister". 55 The lines of the split I will discuss are similar, with Wilson J. and Lamer C.J.C. the most consistent reifiers, and McIntyre J. a strong contextualist. However, while it may well be that those who are temperamentally inclined to be resisters are also more inclined to be contextualists, and conversely, enthusiasts are liable to be reifiers, there is no logical connection between the two axes of division. The division I will describe is, however, related to the split falling along similar lines which Robin Elliott has described as a difference in the "commitment to liberalism," and can probably be looked at as one aspect of this commitment. 56 I would emphasize that the issue I will address is only one aspect of the split: even if the contextual approach becomes widely accepted the split will not disappear. On the contrary, one reason I believe that the contextual approach should be widely adopted is so that the larger split will become open, rather than hidden in technicalities. 55M. Gold, Of Rights and Roles: The Supreme Court and the Charter (1989) 23 U.B.C. L. REV. 507 at 508. 56 See Elliot, supra, note 18.

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To illustrate what is meant by contextualism and rights reification, consider the case of an optimistic ice cream vendor arrested under a municipal noise by-law for noisily ringing her bell at midnight. 57 Let us assume the ice cream vendor's right to commercial speech is infringed, as it probably is. 58 Proceeding to the Oakes test, we find that the objective of the by-law is to insure that people get a good night's sleep. How pressing is this? Midnight ice cream vendors are hardly likely to be a significant nuisance, and assuming one is roving the streets trying to find a hungry customer, one is unlikely to disturb any individual for more than a few minutes. A few minutes' disrupted sleep seems a small price to pay rather than countenance the infringement of a constitutionally guaranteed right. Adherence to the requirement that the objective of the legislation be pressing and substantial implies that the law is not justifiable. On the other hand, intuition suggests that while the objective of the legislation is not overwhelmingly important, neither is the ice cream vendor's interest in selling her goods at midnight. In other words, a minor infringement of a right is to be balanced against an insubstantial (albeit legitimate) legislative objective. On this analysis, the by-law seems quite reasonable. Faced with this clash between intuition and formal analysis we should recall that the Oakes test is not actually set out in the Charter itself. We need to look more closely at the formal analysis before abandoning our intuition. The source of the clash lies in part in the sharp analytical distinction between determining the scope of a right and determining whether its breach is justified under section 1. The Court has noted that the structure of the Charter allows the right itself to be defined more broadly than

51 This example was raised by Cioni Prov. J. in R. v. Bear (1986), 47 ALTA

L.R. (2d) 255, 54 C.R. (3d) 68 at 79 (Prov. Ct), an early case dealing with s. 195(1) of the Criminal Code, and was dismissed with the remark that "[s]ome cases can be decided directly in fact." This is quite true, but surely such cases must be consistent with doctrine, not exceptions to it. 58 Ford, supra, note 13, makes clear that freedom of expression extends to commercial speech. The effect of the by-law is to restrict commercial speech, but its purpose is not to restrict content of expression. The issue of whether freedom of expression is infringed would then turn on whether the by-law directly restricts the consequences of the communicative activity (in which case there would be no infringment), or has whether it restricts the communicative activity itself as a means of indirectly restricting the unwanted consequences (in which case there would be an infringment): see Manitoba Reference, supra, note 30 at 1206, and Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927 at 976-77, 94 N.R. 167 at 222 [hereinafter Irwin Toy cited to S.C.R.]. This distinction is not of great help in the context of a noise by-law: however, in Irwin Toy at 977 Dickson C.J.C. did advert to the example of a noise by-law, and said that in order for such a restriction to be an infringment of freedom of expression a plaintiff must demonstrate that "her aim was to convey a meaning reflective of the principles underlying freedom of expression". Presumably, following Ford, a sincere attempt at commercial speech would qualify. In any case, at this point I am not concerned with arguing that a minor rights violation is possible, but simply to explore the s. 1 consequences of such a violation.

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under the American or Canadian Bill of Rights 59 because balancing of interests can take place under section 1 rather than in defining the right itself. While this approach is conceptually sound and strongly supported by the structure of the Charter, it has the very important rhetorical consequence of transforming what may be (intuitively) a simple inconvenience into a violation of a right fundamental to a free and democratic society. The rights reification approach accepts this rhetorical transformation: a constitutionally protected right is important simply by virtue of the fact that it is a right. This view is implicit in the Oakes test, in particular in the sharp separation between the objectives test and the proportionality test. It is this separation which allows and requires a single generally applicable standard against which the legislative objective is to be measured. It makes no sense to measure all the varied legislative objectives against a single general standard, rather than against the correspondingly wide variety of burdens imposed, unless the burdens share a common significance simply by virtue of the fact that they are all rights violations. That the violation of the right per se is seen, under Oakes, as not only significant, but also important, is reflected in the fact that the "pressing and substantial" standard is (nominally) a high one. This high standard applies whether the right in the particular case is seen to be at the core of the protected rights, or on the outermost fringes. This view is demonstrated most strikingly in the judgment of Wilson J. in R. v. Jones.60 The appellant, the pastor of a fundamentalist church, educated a number of children in a program operating in the church's basement. He objected to a requirement of the Alberta School Act 61 that he obtain the approval for such a home education program. Wilson J. found that, assuming there was a burden on the appellant's religious freedom, it was a trivial one and so not covered by section 2(a) of the Charter.62 She went on to say, in obiter, that if she had found that the certification requirement constituted a breach of section 2(a), she would have held that it failed the proportionality test.63 In other words, the same state action is unobjectionable as a trifling inconvenience when not classified as an infringement of a right, but if it is classified as an infringement, it becomes an unjustifiable one. The burden on the freedom in question becomes unjustifiable only because of the way it is classified, not because of any potential for punishment or other tangible consequence. 59 See R. v. Keegstra (1990), [1991] 2 W.W.R. 1 at 39-40, 1 C.R. (4th) 129 at 168 (S.C.C.), Dickson C.J.C. [hereinafter Keegstra cited to C.R.]; Ref. re s. 94(2)

of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486 at 498, 24 D.L.R. (4th) 536 at 545-46, Lamer J.; Committee for the Commonwealth of Canada v. R. (1991), 77 D.L.R. (4th) 385 (S.C.C.) at 391, Lamer C.J.C.; at 422, L'Heureux-Dub6 J. [hereinafter Committee for the Commonwealth]; R. v. Therens, [1985] 1 S.C.R. 613 at 639, 18 D.L.R. (4th) 655 at 675-76, Le Dain J. 60 [1986] 2 S.C.R. 284, 69 N.R. 241 [hereinafter Jones cited to S.C.R.]. 61 R.S.A. 1980, c. S-3, s. 143(a), (e). 62 Supra, note 60 at 313-314. 63 Ibid. at 315.

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The contextual approach, in contrast, holds that the only intrinsic significance of a rights violation is that it initiates the procedure of judicial review. This means there may be such a thing as a minor violation of a right, and it is therefore legitimate to balance such a minor violation against a legislative objective which may be less than pressing. Of course, there will be rights violations which are not trivial, but under a contextual approach this judgment would be based on the concrete particulars of the violation, rather than on the abstract fact of a rights violation. The notion that there can be such a thing as a trivial rights violation is somehow disquieting. Traditional rhetoric sanctifies democratic decision-making. Political decisions made by the legislature are presumptively legitimate, while political review by the appointed judiciary is presumptively illegitimate. Within this rhetorical framework, a powerful justification is required to allow the judiciary to overrule the policy decisions of the elected branch. Rights can provide this justification, but only if rights are thought to be intrinsically very important. To suggest that the intrinsic significance of a right is simply that it allows judicial review seems to beg the question of why this review is justified. This crude statement of the problem of the legitimacy of judicial review is not intended to engage the vast and sophisticated literature on the subject. It is simply an attempt to sketch the psychological basis of our uneasiness at the thought of "trivial" rights. This is sufficient for the purposes of this paper, because the general question of the role of rights in legitimating judicial review is not at issue. We are concerned only with defining "rights" within the context of Charter analysis. Whatever the ultimate justification for the Court striking down legislation, we must keep in mind that no legislation is struck down until after section 1 has been applied. A "right" as something which justifies striking down legislation, that is, a right as defined after section 1 is applied, should not be confused with a "right" as a term used in describing one of the Charter sections. The debate between the reifying and contextualizing approaches concerns the nature of the relationship between Charter rights and section 1, not the legitimacy of judicial review. We should remember that rights are judicially constructed within the framework of the Charter,including section 1,64 and we should not be blinded by the rhetorical power of the word "rights" when approaching section 1 analysis. The Court may choose to define rights in such a way that a violation of a guaranteed right is invariably important in concrete terms, but this is a choice. I will argue that in practice, the Court has not defined rights in such a way that a violation is always important, and that therefore a contextual approach under section 1 is more appropriate. 64 McIntyre J.'s remark in Andrews, supra, note 14 at 178, that it is important that the [rights guaranteeing sections and s. 1] are kept "analytically distinct if for no other reason than the different attribution of the burden of proof' shows an awareness of the constructed nature of rights.

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We should note that a contextual approach does not conflict with the outcome in Oakes, only with the rhetoric of the Oakes test. In Oakes itself the denial of the right to be presumed innocent could have resulted in imprisonment. The stakes were very high for the appellant and the criminal context is paradigmatic of a situation in which the presumption of innocence will apply. Given a violation going to the core of the right with the most serious consequences for the accused, it is eminently reasonable to require a pressing and substantial objective. But this is an argument of balancing the infringement against the objective: it does not follow that it is always appropriate to require a pressing legislative objective. The question of whether a less than pressing legislative objective can justify a minor infringement of a right arises most pointedly in the context of considerations of administrative convenience. While the government is often preoccupied with budgetary constraints, rights rhetoric makes it difficult to allow cost or convenience (which often amount to the same thing in the administrative context) to override a constitutionally guaranteed right. This was most strongly reflected in the well-known remarks by Wilson J. in Singh v. M.E.I. 65 However, we should note that this case and others which express similar sentiments were, like Oakes, decided in the context of what were perceived to be significant rights violations.66 While issues of administrative convenience may not justify major rights violations, this is an issue of balancing the infringement against the objective, as was Oakes itself, and is not a basis for saying that administrative convenience can never warrant overriding a right. In R. v. Schwartz67 administrative convenience was raised in the context of what was arguably a minor rights violation and it usefully 65

[1985] 1 S.C.R. 177 at 218, 17 D.L.R. (4th) 422 at 468-69 [hereinafter

Singh cited to S.C.R.]: The issue in the present case is not simply whether the procedures .... are reasonable; it is whether it is reasonable to deprive the appellants of life, liberty and security of the person by adopting a system .... which does not accord with the

principles of fundamental justice. Seen in this light, I have considerable doubt that the kind of utilitarian

consideration brought forward by [counsel for the respondent] can constitute a justification for a limitation on rights set out in the Charter. 66 In Singh, ibid. at 207, Wilson J. stated that s. 7 was infringed "even if one adopts the narrow approach advocated by counsel for the Minister". Similarly, in Askov v. R., [1990] 2 S.C.R. 1199, 79 C.R. (3d) 273 [hereinafter Askov cited to

S.C.R.], dealing with s. 11 (b) of the Charter(the right to be tried within a reasonable time), Cory J. stated at 1240 that "[t]he lack of institutional facilities cannot in this case be accepted as a basis for justifying the delay," (emphasis added) and noted that the interests protected by s. 11 (b) had been "grossly offended and denigrated." Note that in Mills v. R., [1986] 1 S.C.R. 863, 29 D.L.R. (4th) 161 [hereinafter Mills cited to S.C.R.] also dealing with s. 1 l(b) Lamer J. (dissenting, holding that s. 1l(b) was violated) at 935 noted that, "[a]s we do not live in [an ideal] world, some allowance must be made for limited institutional resources." In Askov Cory J. cited this statement at 302 and distinguished the case at bar as one in which the lack of institutional resources would render the s. 11(b) guarantee "meaningless". 67 [1988] 2 S.C.R. 443, 55 D.L.R. (4th) 1 [hereinafter Schwartz cited to S.C.R.].

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1991]

illustrates both attitudes to rights discussed above, as well as the uneasy middle ground. The issue was whether section 106(7) of the Criminal Code, which put the onus on the accused to prove that he had a valid certificate or permit when charged with certain firearm offenses, was an unjustifiable infringement of section 11(d) of the Charter. Dickson C.J.C. found that the purpose of the legislation was "to discourage the use of firearms by the criminal element of our society" 68 and that this was a pressing and substantial concern. Lamer J. agreed that this objective was pressing and substantial, but disagreed that it was the objective of the impugned provision. The broader objective, he noted "is the object the attainment of which is sought through making it an offence to possess unregistered restricted weapons... ;"69 i.e. it is the objective of the legislative scheme as a whole. Turning to the particular role of the reverse onus clause within that scheme, Lamer J. found that "[ilts sole purpose is administrative convenience, ''70 and easily concluded that this "is clearly not an objective of sufficient importance to warrant overriding '71 [s. 1 (d) of the Charter]." Lamer J.'s clear and explicit focus on the impugned provision itself implicitly accused Dickson C.J.C. of expanding the level of generalization in order to avoid using the objectives test. While Dickson C.J.C. ultimately agreed that the provision in question should be struck down, his response to Lamer J.'s challenge was evasive, and, as in Holmes, showed a strong preference for the proportionality test: First, the objective of the section must be evaluated in the context of Part II.1, where it is located, and its place in the system of firearm

regulation taken into account. Second, for reasons which I hope to make clear later on, the constitutionality of the application of s. 106.7(1) must be considered in relation to the particular offence in question ....The determining factor may in some cases be found in the interplay between s. 106.7(1) and the offence provision. Consideration of the objective alone does not appear to take72 this into account; the proportionality analysis is necessary to do so.

The first point, requiring a contextual evaluation of the provision, is a rejection of the narrowly focused approach and implies that a rights violation which is a small contribution to an important goal is more justifiable than one that is a small contribution to an unimportant goal. This imports proportionality concerns into the objectives test itself. The melding of the two tests is made quite explicit in Dickson C.J.C.'s second point, which he subsequently "makes clear" by stressing the centralized nature of the system of firearms regulation and concludes that "it 'should not be at all difficult' for the Crown to prove that the 6S

Ibid. at 472, quoting from McGuigan v. R., [1982] 1 S.C.R. 284 at 316, 26

C.R. (3d) 289 at 318. Ibid. at 493. Ibid. at 494. 71 Ibid. 72 Ibid. at 472 (emphasis added). 69

70

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accused does not have a registration certificate for the weapon. '73 This is surely a consideration of administrative convenience. The point is not that consideration of objective alone "does not appear take this into account": the objectives test appears to reject such considerations entirely, as Lamer J. pointed out. The rhetorical importance of the "rights" label is illustrated by the way in which Dickson C.J.C. and McIntyre J. characterized the nature of the infringement- Dickson C.J.C. says that "[p]resumably, the objective behind [the impugned provision] does not include convicting persons who are able to raise a reasonable doubt as to their guilt but are 74 unable to establish their innocence on the balance of probabilities." Contrast this with the description offered by McIntyre J.: Before going further, it will be helpful to state in simple terms just what is required of persons who wish to possess and use restricted weapons. They are required to register the weapons. Having done so, they are provided with a certificate .... If a question arises as to the existence of a permit or certificate, they are required to produce it. That is the burden imposed upon a person lawfully in possession of a restricted weapon. 75

Dickson C.J.C.'s characterization is very abstract, emphasizing the fact that it is a constitutionally protected right which has been violated. McIntyre J., by spelling out in concrete terms the requirements of the reverse onus provision emphasizes the trivial nature of the burden imposed, thereby implicitly rejecting the generalized approach to rights implied by Oakes. The necessity of paying lip-service to the Oakes test required McIntyre J. to focus on the broad purpose of the gun-control legislation (as did Dickson CJ.C.) in order to find that the objectives test was satisfied. He then switched to a narrow focus on the provision in the proportionality test in order to directly weigh the intrusion, which he characterized as minimal, against "the many problems of proof which the licensing system was itself designed to avoid, ' 76 which amounts to administrative convenience. McIntyre J.'s manipulation of the Oakes test is understandable, in light of the disagreement with the pressing and substantial standard which he voiced in Andrews. Dickson C.J.C. refused to reject the Oakes test overtly, but ultimately weighed the same concerns: in the end he disagreed with McIntyre J. not as to whether administrative convenience can be an objective which warrants overriding a right, but whether in this case it did outweigh the infringement of the right. We should also note that while Lamer J.'s judgement was a model of a "correct" application of the first part of the Oakes test, he sullied the doctrinal purity of his approach in his concluding paragraph, saying, "I should add that this is not to say that, in a setting where 73 Ibid. at 473. 74 Ibid. at 474. 7-Ibid. at 489. McIntyre J. found no rights violation, and his s. 1 analysis is

obiter. 76

Ibid. at 492.

The Oakes Test

1991]

imprisonment is not available as a penalty and where conviction does not carry the stigma of a criminal record, administrative convenience could not prevail over the rights of the citizen."'77 In other words, administrative convenience could warrant overriding a fundamental right: the problem was simply that in this case, given the possible consequences of the breach, the infringement was not warranted. The conclusion that the objective was not of sufficient importance was simply a short cut to the balancing of the last part of the proportionality test. Which approach to rights is preferable? I have already argued that the Court has shown a reluctance to use the objectives test which cannot be explained simply by the pressing and substantial nature of the legislative objectives. This reluctance in itself, by implicitly rejecting the separation between the objectives test and the proportionality test, implies a rejection of the reifying approach to rights. The contextual approach is also more consistent with a broad reading of the scope of the guaranteed rights. As noted above, a broad definition of the guaranteed rights is justified partly by the presence of section 1:78 it is inconsistent to then claim that because a right has been

violated, it is not enough that the legislation be reasonable. It might be suggested that a purposive approach to defining the scope of rights insures that all rights violations are important. 79 However, the meaning of "purposive" is not entirely clear, and there seems to be some internal tension in the notion of a "broad, purposive" analysis mandated by the Court in Hunter v. Southam Inc.8 0 While the Court has not been consistent,8 1 at least some of the guaranteed rights have been given an

77 78

Ibid. at 494. See supra, note 59.

79 In Andrews, supra, note 14 at 184, McIntyre J. suggested that given the broad ambit of the equality guarantee, the hurdle the legislative objective should have to meet is whether it "represents a legitimate exercise of the legislative power for the attainment of a desirable social objective....". Wilson J. rejected this argument at 154 and reaffirmed the "pressing and substantial" standard, saying "[t]his is not a concern, however, once the position that every distinction drawn by law constitutes discrimination is rejected....". We should note, however, that two distinct types of discrimination, "direct" and "adverse effect", are recognized under human rights legislation (which the Court in Andrews, supra, note 14 at 175, McIntyre J., held applicable to s. 15). The approach to the justification of these types of discrimination is very different, and financial motivations are a primary consideration in justifying adverse effect discrimination: see OntarioHuman Rights Commission and O'Malley v. Simpson Sears Ltd., [1985] 2 S.C.R. 536 at 555, 23 D.L.R. (4th) 321 at 335, and CentralAlberta Wheat Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489 at 505-19, 33 C.C.E.L. 1 at 16-28, Wilson J. No doubt substantial financial considerations are generally required to justify adverse effect discrimination: the point is simply that, even given a "purposive" definition of a right, not all rights violations will be susceptible to the same analysis. 80 [1984] 2 S.C.R. 145 at 156, 33 ALTA L.R. (2d) 193 at 202. 81 It would be difficult to describe the interpretation given to s. 2(d), freedom of association, as "broad."

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expansive, almost textual, definition. 82 Such a definition makes it inevitable that some activities which fall within the definition will not be deserving of a high level of protection. If the Oakes test is to be adhered to this will lead to considerations of balancing of interests in defining the scope of the right. This occurs explicitly in the judgment of Lamer C.J.C. in Committee for the Commonwealth83 in which he undertakes to balance the interests of individuals wishing to use a public forum to express themselves against the government interest in the effective use of public property in defining the scope of section 2(b) itself.84 Lamer C.J.C. justifies this by saying that "the 'freedom' which an individual may have to communicate in a place owned by the government must necessarily be circumscribed by the interests of the latter and of the citizens as a whole". 85 While this is undoubtedly true, it does not explain why this circumscription should not be considered in section 1 analysis, as in the judgment of L'Heureux-Dub6 J. Lamer C.J.C.'s avoidance of section 1 seems at odds with his earlier broad reading of section 2(b) - "all content of expression is protected while the set of forms that will not receive protection is narrow and includes direct attacks by violent means on the physical liberty and integrity of another person"86 - and his earlier explicit statement that "if the effect of the government action does restrict one's freedom of expression, then a recourse to a section 1 analysis is necessary. '87 It is particularly perplexing in light of his explanation in the Committee for the Commonwealth case itself that the problematically "nominalist" approach of the American courts to the "public forum" concept was a result of an attempt to undertake such balancing in the absence of a provision similar to section 1.88 In view of this, the details of the balancing exercise are noteworthy. Lamer C.J.C. asserts that the form of expression must be compatible with the function of the place in which it takes place in order for it to be covered under section 1: for an example, he cites shouting in a library as incompatible with its function, and so undeserving of section 2(b) protection. 89 On the other hand, state interests in restricting expression 82 Perhaps most obviously freedom of expression has been given such a broad scope. In Keegstra, supra, note 59 at 159, Dickson C.J.C. for the majority said that, "the starting proposition in Irwin Toy is that all activities conveying or attempting

to convey meaning are considered expression for the purposes of s. 2(b); the content of the expression is irrelevant in determining the scope of this Charterprovision.

Stated at its highest, an exception has been suggested where meaning is communicated directly via physical violence, the extreme repugnance of this form to free

expression values justifying such an extraordinary step." 83 Supra, note 59. 84 One section of his analysis is entitled "Balancing these poles [government

and individual] of interest under s. 2(b) of the Charter." See Committee for the Commonwealth, supra, note 59 at 394. 85

Ibid. at 394-95.

86

ManitobaReference, supra, note 30 at 1186 (emphasis in original).

87

Ibid. at 1187-88.

88 Committee for the Commonwealth, 89 Ibid. at 395.

supra, note 59 at 391-92.

1991]

The Oakes Test

which are not related to the effective operation of the property, such as "the maintenance of law and order" must be considered only under section 1.90 Given Lamer C.J.C.'s strong commitment to the Oakes test and to a narrow focus in particular, we might suspect that the division is a tendentious one, designed to allow interests which are legitimate but not pressing to constrain free speech while not running afoul of the pressing and substantial standard. Note that the maintenance of law and order is easily described as a pressing and substantial concern; it is not so clear that maintaining silence in a library, while certainly a legitimate goal, warrants overriding a fundamentally guaranteed right. I am not advocating that all balancing take place under section 1 rather than in defining the scope of the right, and this is not the place to enter into the general debate as to where balancing of interests should occur. My point is simply that if the decision as to whether to balance under section 1 or in the definition of the right is made tendentiously to avoid the pressing and substantial requirement, the growth of doctrine will inevitably be artificial and unpredictable. The most basic objection to the pressing and substantial standard is that minor rights violations simply do exist. It is clear that once particularized, not all violations are equally important. As Wilson J. has stated, "[o]ne virtue of the contextual approach, it seems to me, is that it recognizes that a particular right or freedom may have a different value depending on the context." 91 Even if a careful and purposive definition of the various rights is used to avoid bringing to section 1 some areas in which the rights violations are generally likely to be minor, there will remain cases in which the burden is clearly at the heart of the right and yet still insubstantial. Jones was arguably such a case, and, with respect, Wilson J.'s comments there indicated a willingness to manipulate the scope of a right in order to avoid having "reasonable" legislation fail section 1 without any functional justification. 92 I have argued that in Schwartz McIntyre J. was of the view that a license requirement imposed a trivial burden. Similarly, in Ladouceur,93 which dealt with the constitutionality of random vehicle stops for license and sobriety checks, Cory J. in judgment for the majority noted that "[t]hese stops are and must be of relatively short duration, requiring the production of only a few 94 documents. There is a minimal inconvenience caused to the driver. 90

Ibid. at 396.

91 Edmonton Journal, supra, note 11 at 1355-56, quoted with approval by

Dickson C.J.C. in Keegstra, supra, note 59 at 160. 92 It might be said that the classification follows the justifiability, and not, as I have suggested, the other way around. In other words Wilson J.'s statement that if she had found the requirement to be an infringement of s. 2(a), she would have found it unjustifiable, is misleading because it implies the possibility that she would have found an infringement. In fact, she would only find a non-trivial inconvenience to be an infringement, and so unjustifiable. As pointed out earlier however, this

amounts to no more than a rejection of the purposive analysis of the scope of a right, and the importation of the reasonableness criterion. 93 Supra, note 12. 94 Ibid. at 1286.

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In Canadian Newspapers Co. v. Canada (A.G.), a case concerning restrictions on publishing the identity of the victim in a sexual assault, Lamer J., speaking for the Court, noted that "[wihile freedom of the press is nonetheless an important value in our democratic society which should not be hampered lightly, it must be recognized that the limits imposed by s. 442(3) [of the Criminal Code] on the media's rights are minimal. '95 In R. v. Collins96 the possibility of Charterviolations "of a merely technical nature" was recognized. While this was in the context of section 24(2) of the Charter, whether the rights violation stems from the manner of the implementation of a law or from the law itself, seems 97 irrelevant to the severity of the infringement experienced by the victim. To recognize the possibility of minor rights infringements also fits better with the role of the Court in Charter interpretation. The Charter has bestowed real political power on the Court and the judiciary is no longer able to occupy a pristine high ground in debates over rights. 98 Rather the courts are now partners in government with an obligation to help in the development of fair yet practical policies. In this context it is irresponsible to characterize the most fundamental constraint on government action, cost, as "mere" administrative convenience. This point was raised in a slightly different context in the judgment of Lamer J. in Lee, 99 which dealt with a provision of the CriminalCode providing that an accused who has elected a jury trial but fails, without a legitimate excuse, to appear for that trial, forfeits his or her right to a subsequent jury trial. While Wilson J. found that concerns of efficiency and expense in jury trials did not warrant overriding the right to a jury trial, 100 Mr Justice Lamer held that the purpose of the provision was not only to punish the accused: [but also The expense, it should be noted, is not only to the system .... leads to an on the jurors. The cost and inconvenience to individuals] .... erosion in public confidence and a frustration with the system when the accused fails to appear for his trial and the assembled jury panel has to be sent away .... The issue then at the s. 1 analysis is to balance against the restriction on the right to a trial by jury against the 'cost' to individuals and society of the non-appearance of accused persons for their trials. 0 1 95 Supra, note

15 at 133.

[1987] 1 S.C.R. 265, [1987] 3 W.W.R. 699. 97 In R. v. McKinlay Transport Ltd, [1990] 1 S.C.R. 627 at 647, 76 C.R. (3d) 96

283 at 300 [hereinafter McKinlay Transport cited to S.C.R.] in the context of s. 8's prohibiting unreasonable search or seizure, Wilson J. indicated that lesser standards should apply in an administrative context than in a criminal or quasi-criminal context. Presumably this indicates that a violation of s. 8 is not as serious in such a context. 98 Exactly the opposite view is expressed by L. Weinrib, The Supreme Court of Canada and Section One of the Charter (1988) 10 SuP. CT L. REV. 469. 99 Supra, note 26 at 1384.

100 101

Ibid. at 1420. Ibid. at 1390-91.

1991]

The Oakes Test

This argument applies generally for almost any issue of administrative convenience. The government does not have bottomless resources, and for instance, to correct procedural infringements may cost so much, or take so much time, as to result in reduced service and increased delay for other users of the system, possibly resulting in frustration and loss of public confidence. The price paid for justice is borne not by the system, but by the people who use the system. IV.

REPLACING OAKES

I have argued that many of the problems of the Oakes test stem from the sharp separation between the objectives test and the proportionality test. This separation means that there is no direct balancing of the concrete objective of the legislation and the concrete harm caused by the rights violation: rather the balancing is mediated in a counterproductive fashion by the abstract "pressing and substantial" standard. The main impediment to discarding this standard is the view that the infringement of a right is per se important. This view is generally given only rhetorical expression through the invocation of the Oakes test. In practice various techniques, in particular a broad focus on the legislative objective, are used to avoid giving practical effect to the pressing and substantial standard. If the attachment to rights rhetoric can be overcome, the way should be clear for a rejection of the Oakes test. Rejecting the "pressing and substantial" standard does not require a complete abandonment of the inquiry into the legislative objective. In Oakes itself, Dickson C.J.C. said the reason for this inquiry is to "insure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection." 10 2 These are two distinct reasons, which were mixed (unfortunately, in my view) by accommodating both in the requirement that "at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. 1 0° 3 This dual function standard serves neither objective well. In the first place, it simply does not follow that "the standard must be high" in order to prevent trivial objectives from gaining section 1 protection: only a relatively low standard is needed. A high standard, if taken seriously, would also preclude objectives which are legitimate but not overwhelmingly important from gaining acceptance. The experience with section 1 has shown that the Court is unwilling to substitute its judgment for that of the legislature in such cases. More to the present point is the requirement that the objective not be discordant with Charterprinciples. This is best described as a requirement of "legitimacy." 10 4 This is not a lower standard as to the importance 102 Oakes, supra, note 1 at 138 (emphasis added). 103 Ibid. at 138-39. 104 By this point it should not be surprising to note

that this was suggested by McIntyre J. in Andrews, supra, note 14 at 184 and rejected by Wilson J.for the majority at 154. See supra, note 79.

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of the legislative objective, but a standard which is different in kind. Whether the legislative objective is pressing and substantial is simply unrelated to whether it is discordant with Charter values. The appropriate inquiry is not as to the importance of the objective, but as to its nature. R. v. Big M Drug Mart,10 5 in which the importance of inquiring into the legislative objective was established, is a perfect illustration of this principle. If a large majority of the Canadian population were devout Christians and wanted to ensure that, no matter what their economic status, they would be assured of being able to observe Sunday as a Sabbath, we would surely have to characterize this objective as pressing and substantial. Nonetheless, Sunday observance legislation based on this pressing and substantial objective would not be legitimate, because to impose the day of rest observed by the Christian majority "would justify the law upon the very basis upon which it is attacked for violating S. 2(a). 1 06 While a rejection of the "pressing and substantial" standard may be the major impediment to explicitly breaking down the separation between the objectives inquiry and the proportionality test, it will not be the most important consequence of a rejection of the Oakes test. The separation between the inquiry into the legislative objective and the means used to achieve the objective is essential to the "test" format of Oakes, in that without this separation the Court must face directly the question of the acceptability of cost/benefit trade-off. This is Oakes' great advantage - if one believes that such a choice can be reduced to a test. One early comment argued that in Oakes "the Chief Justice attempts to devise a formalist 'test' for the resolution of difficult balancing tasks" which "reflects a denial of the normative and political values inherent in decision making under the Charter."'10 7 In my view this assessment has been amply borne out. The test format must be rejected in favour of a direct confrontation of the value-laden choices the Court faces. But to accept that the Court must engage in a balancing process which cannot be reduced to any kind of determinate test is not to say that the process must be an irrational one. Guidelines may be developed to help assess both the importance of the breach of a right and the importance of the objective. Controversy over values can then be expressed openly in debate over the appropriateness and relative importance of issues identified in such guidelines. This will promote a rationality of debate rather than a false rationality of "right answers". Some suggestions follow. Firstly, with respect to the importance of the objective of the impugned provision, deference to the legislative policy choice remains a valid principle even in the context of a balancing procedure. At first glance this may seem not very helpful, as all Charter violations considered under section 1 will be a result of a law. However, not all laws are equal. In the first place, the common law has been held 105 106 107

[1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 [hereinafter cited to S.C.R.]. Ibid. at 352. Chapman, supra, note 4 at 869.

1991]

The Oakes Test

to be "law" for the purposes of the phrase "prescribed by law" in section 1.108 The courts should not show any deference in scrutinizing the objectives of such judge-made law. 10 9 Further, the objectives of judgemade "law" such as injunctions should also be subject to strict scrutiny. While one case has already held an injunction to be law for the purposes of section 1,110 this category would be greatly expanded if Dolphin Delivery' were to be overruled. As well, some laws which are in form positive legislative enactments have arguably not received the full atten12 tion of the legislature. For example, Wilson J. pointed out in Chaulk" that the CriminalCode requirement that the accused prove sanity on the balance of probabilities was introduced simply as a result of the codification of the common law. Such a law would merit more deference than common law, as the legislature had made a positive decision to adopt the common law; but the legislative decision was arguably directed to the general issue of codification rather than the specific details of the Code, and such provisions would merit less respect than a statute initiated more directly by the legislature. An important and relatively easy distinction should be drawn between legislative enactments and regulations made under delegated authority. The latter should generally 113 be subject to closer scrutiny. The above examples distinguish the degree of deference to be shown in assessing the importance of the objective of an impugned provision on the basis of how directly the legislature was involved in determining the substance of the law. The courts might also be less deferential when a law seeks to advance the interests of the government qua employer, or qua political entity, rather than looking to the general 108See

419.

109

R. v. Thomsen, [1988] 1 S.C.R. 640 at 650-51, 40 C.C.C. (3d) 411 at

This principle was adopted in R. v. Swain (2 May 1991), No. 19758

(S.C.C.). 110B.C.G.E.U. v. British Columbia (A.G.), [1988] 2 S.C.R. 214, 53 D.L.R. (4th) 1. ,I R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174. 112 Supra, note 6 at 53. 113 See Black, supra, note 14. The Law Society had passed two regulations forbidding members from going into partnership with non-residents or from becoming partners in more than one firm. While LaForest J., for the majority at 627, nominally struck down the regulations as not rationally connected to the objective of "regulation and control of the legal profession" (note the very high level of generality), the real concern was identifying a plausible and acceptable objective at a lower level of generalization. The second "purported justification", the contention of the Law Society that local competence and expertise of local firms would be diminished, was probably closest to the true mark. LaForest J. rejected this at 629 as "a justification for the protection of an indigenous bar rather than a valid reason for the prohibition....". This is a rejection of the objective itself, not a "rational connection" complaint that the regulations did not in fact protect the local bar. The point to note is that if the legislature itself had directly enacted a provision with a similar purpose (e.g., farm price-support legislation) the Court would very likely have bowed to the legislative judgment that this was an important objective. Note that very different considerations would apply where the decisions of the subordinate body are protected by a privative clause.

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interest. Admittedly, drawing such a distinction would pose its own problems, but one example is provided by Reference Re Public Service Employee Relations Act (Alta),'1 4 (challenging the provincially imposed wage restraints on civil servants) in which Dickson C.J.C. rejected the purported objective of protecting the government from political pressure as not pressing and substantial. This example melds the standards of legitimacy and importance by suggesting that while the Court might not be a good judge of whether an objective is pressing and substantial, in the circumstances the government is not to be trusted either, and the Court is justified in applying a less deferential standard. A final general consideration is the suggestion that the Court should be more deferential in polycentric problems in which the state has undertaken to balance the legitimate interests of competing groups as opposed to situations in which the state acts as the "singular antagonist" of the interests of the 15 individual.1 I would also suggest the analysis of the importance of the right's breach should be tied more closely to the particular right. I will not offer specific suggestions in this area as the jurisprudence surrounding the scope of various rights, such as the distinction between aspects of a right lying at the core of guaranteed freedom and aspects which lie at the 6 periphery, could be elaborated and applied in the balancing procedure. 1 The judgment of L'Heureux-Dub6 J. in Committee for the Commonwealth 17 moves towards such an approach. Unlike Lamer C.J.C. she adopts a very broad definition of the scope of the right to freedom of expression, undertaking all balancing in her section 1 analysis. The Oakes test, in the flexible incarnation espoused most consistently by LaForest J., was mentioned but effectively abandoned. L'Heureux-Dub6 J. rejected the pressing and substantial standard, saying that the objectives in question "are not only reasonable, but in many instances necessary," and mixed the objective and proportionality tests, saying that "[i]f the purposes are legitimate, and the measures taken are reasonable having regard to all the circumstances, the standard of absolute minimal impairment need not be applied." 118 The structure of the section 1 analysis was obscured by nominal invocation of the Oakes test, but L'Heureux-Dub6 J. did rely extensively on a detailed list of factors [1987] 1 S.C.R. 313, 38 D.L.R. (4th) 161. This position was advanced by LaForest J. in McKinney, supra, note 36 at 648, relying on the decision of the Court in Irwin Toy, supra, note 58. 116 Different kinds of speech are of differing importance in s. 1 analysis: see 114 115

Keegstra, supra, note 59, at 182-83, Dickson C.J.C.; Royal College of Dental Surgeons (Ont.) v. Rocket (1990), 111 N.R. 161 at 177, 40 O.A.C. 241 at 257

(S.C.C.), McLachlin J. (quoting Wilson J. in Edmonton Journal and cited in

Keegstra) [hereinafter Royal College]. For distinctions between core and peripheral rights in other contexts see the remarks of Wilson J. in McKinlay Transport, supra, note 97 at 646, and the remark of Lamer J. in Schwartz, supra, text accompanying

note 77.

Supra, note 59. 118 Ibid. at 443.

117

1991]

The Oakes Test

specific to the context of speech in a public arena proposed by the Attorney General of Ontario. V.

CONCLUSION

The time is now ripe for a fundamental re-evaluation of the Oakes test. With Dickson C.J.C. and Wilson J. retired from the Court, Lamer C.J.C. is its only remaining strong proponent. While LaForest J. has so far felt constrained to develop his approach to section 1 within the framework of the Oakes analysis, he is clearly not a purist, and would probably be willing to consider a new approach. Of those justices appointed since Oakes was handed down, and about whom some opinion can be formed, only McLachlin J. appears to be entirely comfortable with the Oakes test.11 9 In recent judgments L'Heureux-Dub6 J. has clearly avoided it,120 while Sopinka J. is at best ambivalent.121 To reject the Oakes test would turn section 1 analysis into a messy affair. It would require subjective determinations of the importance of legislative objectives and the seriousness of rights violations, guided not by a universally applicable check list, but rather by a multitude of concerns which would have varying importance in different cases, and which might not be easily generalizable. This messiness is a good sign, as it reflects the reality of the political decisions which the Court is being asked to make. The sooner the Oakes test is rejected, the sooner a substantive theory of section 1 analysis can be developed.

119 See Hess, supra, note 19; Royal College, supra, note 116, Keegstra, supra, note 59. While Cory J. generally follows the Oakes format, his attitude towards it might impressionistically be described as "loose" or flexible: see, e.g., P.I.P.S. v. N.W.T. (Commr.), [1990] 2 S.C.R. 367, [1990] N.W.T.R. 289, in which he deals with the proportionality test in general terms rather than addressing each component of the Oakes test separately. 120 See Logan, supra, note 9; McKinney, supra, note 36; Committee for the Commonwealth, supra, note 59. 121 In Ladouceur, Sopinka J. favoured the approach of Tarnopolsky J.A. in the Ontario Court of Appeal over the Oakes test, as noted, supra, note 27.

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Oakes Test - Section de common law

THE OAKES TEST: AN OLD GHOST IMPEDING BOLD NEW INITIATIVES Norman Siebrasse* The Oakes test is the central part of the jurisprudence of Section 1 of t...

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