Legacy of R. v. Oakes - Proportionality Analysis under the Canadian Charter's Section 1

In its most recent issue, Canadian Law Abstracts, one of the collections offered by the Social Science Research Network, features an article by University of Toronto law professor Sujit Choudhry on how courts decide what are justifiable limits on rights defined under the Canadian Charter of Rights and Freedoms.

Entitled So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1, it was published in the Supreme Court Law Review, Vol. 34, (2d), 2006.

From the abstract:

"R. v. Oakes is widely regarded as one of the most important judgments interpreting Canada's Charter of Rights and Freedoms. In addition to laying down its famous proportionality test to assess the reasonableness of limits on Charter rights, it clarified the Supreme Court of Canada's Court's interpretive methodology for Charter cases, perhaps most centrally that rights are of presumptive importance, and limitations the exception that are only acceptable if governments meet a demanding test of justification."

"The citation of Oakes by courts in Antigua and Barbuda, Australia, Fiji, Hong Kong, Ireland, Israel, Jamaica, Namibia, South Africa, the United Kingdom, Vanuatu and Zimbabwe has made Oakes one of the central models for rights-based constitutional adjudication. So the almost immediate retreat from Oakes is of broader constitutional significance, both domestically and abroad. If Oakes was a model for how to interpret the Canadian Charter, and how rights-protecting documents in other jurisdictions should be construed, the question is what kind of model it remains two decades on."

"There is a dominant narrative on what the true legacy of Oakes and the retreat from Oakes are. The argument is that Oakes set out a uniform approach for assessing justifiable limitations on Charter rights irrespective of differences in context, but that in the decade following Oakes, the Court searched for criteria of deference, to reliably and predictably categorize cases where deference was warranted and those where it was not. These categories were not applied consistently by the Court, and, indeed, produced disagreement within the Court over how they should be applied in specific cases. Underlying both trends were concerns regarding the cogency of the distinctions employed by the Court to delineate the boundaries of these categories. The broader lesson of Oakes is the need to tailor judicial review to the unique context of each case."

"Although the dominant narrative captures much of Oakes' legacy, it misses much of what is at stake in many recent s. 1 cases, and by implication, what the true legacy of Oakes and the retreat from Oakes are."