Oakes test

The Oakes test is a test applied by courts in Canada that was developed in the landmark R. v. Oakes (1986) 1 S.C.R. 103 case. The Oakes test is used to determine if government legislation can survive an Article 1 (limitations clause) challenge.

In regards to the analysis under Section 1 of the Canadian Charter of Rights and Freedoms the Court asks two questions to determine whether a law is constitutional or not:

1. Does the legislation infringe a Charter right? If no, it is constitutional.

2. If yes, is the infringement of that right justified as a limitation under to Section 1 of the Charter?

According to s.1, Charter rights can be subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”

The “The Oakes Test” is:

1. Pressing and Substantial Objective:

Is the Government’s objective in limiting the Charter protected right a pressing and substantial objective according to the values of a free and democratic society? If no, the law is unconstitutional. If yes, apply branch 2.

2. Proportionality Test:

Examine the proportionality between the Parliament or the Provincial legislature's objective and the means used to further that objective:

a) Rational Connection:

Is the legislation’s limitation of the Charter right have a rational connection to Parliament’s objective? The means used must be carefully designed to achieve the objective. They must not be arbitrary, unfair or based on irrational considerations.

b) Minimal Impairment:

Does the legislative means to achieve the objective impair the Charter protected right in question as minimally as possible? Are there alternative modes of furthering Parliament’s objective that infringe the right to a lesser extent? The legislation cannot not be overbroad or unduly vague.

c) Proportionality between effects and objective:

Are the measures that are responsible for limiting the Charter right proportional to the objective? Does the benefit to be derived from the legislation outweigh the seriousness of the infringement? The legislation may not produce effects of such severity so as to make the impairment unjustifiable.

If the legislation fails any of the above branches, it is unconstitutional. Otherwise it passes the Section 1 Oakes test.