Courts in Canada use the Oakes test to decide whether a government’s law, policy or action is justified even though it infringes on someone’s Charter rights.
When an individual believes a government’s law, policy or action has infringed on their Charter rights, courts use the Oakes test to decide whether the infringement is justified. (In this article, “law” refers to a government’s law, policy or action.)
The Oakes test has four steps. The government infringing upon the individual’s right must prove each step of the test. If the government is successful, then a court can find it was okay for the government to infringe on the individual’s rights.
The Oakes test comes from the 1986 case of R v Oakes. David Oakes was convicted of unlawful possession of drugs under the old Narcotic Control Act. Section 8 of the Act said that if the court finds someone guilty of possessing a narcotic, the accused is automatically guilty of trafficking unless the accused proves they were not trafficking just by possessing narcotics. This creates a ‘reverse onus’ for the accused to prove they’re not guilty when usually the onus in criminal cases is on the Crown to prove the accused is guilty. Mr. Oakes challenged section 8 of the Act, saying it went against his constitutional right of being presumed innocent until proven guilty.
Step 1: Substantial and pressing objective
The first step of the Oakes test requires the government to explain the objective of the law. The objective must be one that is pressing and substantial. “Pressing” means the objective is important for the area and time in question and “substantial” means the objective is important enough to justify infringing on someone’s rights.
In the Oakes case, the government’s objective was to decrease drug trafficking through the Narcotic Control Act. The court found this objective to be both pressing and substantial.
Step 2: Rational connection between law and objective
In the second step, the government must show a rational connection between the law and the pressing and substantial objective (from step one). If there is no logical purpose that connects the law and the objective, the court will find the infringement is unjustified.
In the Oakes case, the court had to find a connection between the fact of the accused possessing narcotics and the presumption that the accused was possessing narcotics for the purpose of trafficking. If there was no connection, then the reverse onus on the accused could lead to them being wrongfully convicted of trafficking drugs when they were only guilty of possessing drugs.
Section 8 of the Narcotic Control Act failed this part of the test in the Oakes case. The court found possessing a small amount of narcotics did not lead to a logical inference of trafficking. They found this presumption to be overinclusive. Simply put, it would lead to individuals with a small amount of a narcotic to be charged with trafficking when that is clearly not what they were doing.
Step 3: Minimal impairment of right
The third step requires the government to show they are impairing the right in a minimal way. The 2009 case of Alberta v Hutterian Brethren of Wilson Colony (Hutterian Brethren) highlights this step.
Hutterian Brethren colony members in Alberta objected to having their photographs taken for a driver’s license. The colony members sincerely believed the Second Commandment disallowed them from having photographs of themselves willingly taken. As such, they challenged the constitutionality of the photo requirement on the basis that it infringed on their freedom of religion. Further, the Hutterian Brethren suggested an exemption to the law that would prevent them from using their specific licenses as identification.
The Supreme Court of Canada decided an exemption that allowed an individual to get a driver’s license without a photograph would compromise the government’s objective of requiring the picture in the first place, to protect people’s identities. The court found the universal photo requirement for all licensed drivers minimally impaired a person’s freedom of religion. The court also found there were no other options for satisfying the government’s objective. The court did not accept the Hutterian Brethren’s proposed alternative, saying the photo exemption would not meet the government’s objective.
In this decision, the court added a caveat to step three: the law must fall within a range of reasonably supportable alternatives.
Step 4: Proportionality review
In the last step of the test, the government must show the law’s positive effects are greater than its negative effects. This is known as the proportionality requirement of the Oakes test.
In Hutterian Brethren, the court highlighted that reviewing a law’s proportionality reflects the need for governments to have flexibility in making laws. Further, the court stated a government’s objective should be properly balanced with the rights at stake, even if meeting this balance means the objective cannot be fully met.
The photo regulation failed the proportionality step of the Oakes test in Hutterian Brethren. The court stated:
Absolute safety is probably impossible in a democratic society. A limited restriction on the Province’s objective of minimizing identity theft would not unduly compromise this aspect of the security of Alberta residents and might lie within the range of reasonable and constitutional alternatives (at para 201).
In Hutterian Brethren, the court decided the burden on colony members not being able to get licenses due to photograph requirements was disproportionate to the positive effects of the law. A small number of people having licenses without a photograph would not substantially impact the safety of people in Alberta. As such, a potential alternative of allowing Hutterian Brethren colony members to get licenses without pictures was more reasonable than a disproportionate restriction on the Hutterian Brethren that provided a minimal benefit to the Province.
What it means to fail the Oakes test
If the government fails to prove any step of the Oakes test, then its infringement of the individual’s Charter right is not justified. The court will strike down the law in question for not being consistent with the Charter.
This test ensures a government does not subject Canadian citizens to laws that unjustly infringe upon their Charter rights. It is an important part of our legal process and protects ordinary Canadians from the effects of unjust governmental overreach.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Brett Van Damme
