The Oakes test was created by the Supreme Court of Canada in the 1986 case of R v Oakes.[1] The test interprets section 1 of the Charter of Rights and Freedoms, which states that rights are guaranteed, “subject only to such reasonable limits . . . as can be demonstrably justified in a free and democratic society.”[2] This means that the government must establish that the benefits of a law outweigh its negative impact—that is, its violation of a Charter right.
In R v Oakes, the police caught the accused, Oakes, with hashish oil and cash. They charged him with possession for the purpose of trafficking under the Narcotic Control Act (NCA).[3] He claimed that the drugs were his own and that he did not intend to sell them. At that time, under section 8 of the NCA, anyone found with illegal drugs was presumed guilty of trafficking. Usually, the Crown must prove guilt beyond a reasonable doubt, but under the NCA it was up to the accused to prove that he was not guilty. This is called a “reverse onus”.
Oakes challenged the law, arguing that it violated the presumption of innocence guaranteed by section 11(d) of the Charter. The Supreme Court found that this right had been violated. They then had to consider whether the government could justify this violation using section 1.
The Court in R v Oakes created a two-step balancing test to determine whether a government can justify a law which limits a Charter right.
1. The government must establish that the law under review has a goal that is both “pressing and substantial.” The law must be both important and necessary. Governments are usually successful in this first step.
2. The court then conducts a proportionality analysis using three sub-tests.
a. The government must first establish that the provision of the law which limits a Charter right is rationally connected to the law’s purpose. If it is arbitrary or serves no logical purpose, then it will not meet this standard.
b. Secondly, a provision must minimally impair the violated Charter right. A provision that limits a Charter right will be constitutional only if it impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives.”[4]
c. Finally, the court examines the law’s proportionate effects. Even if the government can satisfy the above steps, the effect of the provision on Charter rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose.
In Oakes itself, the Court considered that combatting the public health and safety risk created by narcotics was a pressing and substantial goal. However, the Court ruled that a “reverse onus,” where an accused is presumed guilty of drug trafficking unless he proves otherwise, was not rationally connected to this goal.[5] The Court found that it would be irrational to presume an intention to traffic narcotics when an accused only possessed a small amount of drugs. Having failed this first step, the court did not consider step 2 (b) or (c), and the law was “struck down,” that is, declared unconstitutional.
The Oakes test is employed every time the government tries to defend a restriction on the Charter rights of Canadians. Some legislation has passed the test. For example in R v Keegstra,[6] the Supreme Court held that a law against hate speech was a reasonable and justifiable limit on section 2(b) of the Charter, which protects the freedom of expression.
The test provides a mechanism for the courts to balance, on the one hand, the government’s ability to achieve its goals and, on the other, the protection of individual rights. This balancing test is now considered a cornerstone of Canadian constitutional law.
[1] R v Oakes, [1986] 1 SCR 103, 1986 CanLii 46 (1986) [Oakes].
[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 1.
[3] Narcotic Control Act, RSC 1970, c N-1.
[4] Oakes, supra note 1 at 46.
[5] Oakes, supra note 1 at 142.
[6] R v Keegstra, [1990] 3 SCR 697, 1990 CanLii 24 (SCC).
