Section 1 Reasonable Limits The Oakes Test

Section 1 Reasonable Limits Section 1 of the Charter is considered the “Guarantee” However… “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” Judges must balance the benefits of the limitation against the well being of society in general- the benefit must be greater than the harm Also the limit must interfere with the right/freedom as little as possible

R. v. Oakes David Oakes- charged with S. 8 of the Narcotic control act In its wording the law set out that once possession was proven the defendant would then be given the opportunity to prove he was not trafficking “reverse onus”- violation of section 11 (d) Yep, he was right

The Test The SCC used the Oakes case as a test case to determine a standard formula for determining the reasonable limits clause of the Charter “The Proportionality Test” CCLE The Acorn Test

Framework for Charter Reasoning Determining whether a limitation on a citizen’s rights is reasonably justified: 1. Does the charter apply? (federal and provincial law) 2. Has there been an infringement? (which right/freedom)

The Oakes Test 3a. Sufficient Importance: Is the reason for the limitation pressing or substantial? In other words, is the purpose or objective of the limit significant in attaining the collective goals of a free and democratic society

The Oakes Test 3b. Proportionality: Are the means/measures employed by the government to successfully achieve the purpose or objective both reasonable and demonstrably justified under the circumstances

The Oakes Test 4. Rational Connection: The means/measures must be carefully designed to meet the intended purpose. In other words, can it be proven that there is a rational connection between the purpose and measures/means selected? 5. Minimal Impairment: The measures/means adopted to carry out the purpose should minimally affect or impair one’s rights 6. Detriments v. Benefits: The means/measures to restrict the right should not be disproportionate to the purpose/objective

R. v. Oakes Narcotic Control act s. 8 was a federal law Section 11 d. was possibly infringed a. Increase in drug use and therefore trafficking did warrant the creation of a measure to stop and punish drug dealers easier- pressing and substantial importance b. It is reasonable for a government to pass laws to help stop drug use and help enforce drug laws Presumption of innocence is one of the most important rights in any democratic nation- forcing people with small amounts of drugs to show they weren’t trafficking does little to stop drug trafficking in Canada- therefore the design of the measure is not rationally connected to the purpose The right would have been severely limited- essentially the presumption of innocence would be lost on all people charged with drug crimes The negative impact on society (lack of faith in the justice system, failure to actually get at the heart of drug crimes) would be heavier than the benefits, it is unlikely this provision in the narcotics control act would ever help stop drug trafficking Therefore Section 8 of the Narc. Control Act cannot be reasonably be justified in a free and democratic society.

Freedom of Expression James Keegstra Section 319 (2)- Wilful promotion of hatred against an identifiable group Violates Section 2 b. But is it a reasonable limit?