Top Ten Charter Cases

Last week, there was a symposium organized by the Law Society of Upper Canada in Toronto to mark the 25th anniversary of the Canadian Charter of Rights and Freedoms.

For the occasion, as noted in the Osgoode Hall blog The Court, a panel of 10 top Supreme Court watchers came up with a list of the 10 most important Charter cases.

The most important case according to the experts is R. v. Oakes, [1986] 1 S.C.R. 103:

"The Supreme Court of Canada held (7-0) that a reverse onus clause in the Narcotic Control Act, which required an accused to rebut a presumption of possession for purposes of trafficking, violated s.11(d)'s presumption of innocence and was not justifiable as a reasonable limit under s.1 of the Charter".

"Without question, Oakes has been the most frequently cited and most dominant decision in the first 25 years of Charter history. Though the Court would have developed a standard under s.1 to test the reasonableness of the legislature's objective and the means adopted in any event, Oakes is a much more than a test of reasonable limits. It is iconic and a symbol of the Charter's goal of maintaining balance between the rights of individuals and the demands of democratic society, and equilibrium between the institutional roles of the legislatures and the courts".

(...)

"By setting a strict standard of justification under s.1, Oakes had a strong influence on the Court?s conception of rights; to avoid a s.1 analysis, the Court has, in some instances, placed definitional limits on the scope of the Charter guarantees. By providing a blueprint on the question of "reasonable limits", Oakes has also had a powerful influence on governments, particularly in the area of legislative drafting" [from The Court].

Earlier Library Boy posts that refer to the Oakes case include:

• Richard Goldstone Visits the Supreme Court (February 3, 2006): "This last Wednesday, Richard Goldstone, former justice of the post-apartheid Constitutional Court of South Africa, was an honoured guest at an in-house conference organized for staff of the Supreme Court of Canada. The Constitutional Court is South Africa's highest court on constitutional matters. Before being appointed to the Constitutional Court, during the period of transition from apartheid to multiracial democracy, Goldstone headed a commission of inquiry into violence that proved conclusively the involvement of the police and secret services in a campaign of murder aimed at aborting the nascent peace process between the white minority government and the African National Congress (...) Goldstone's most interesting comments about the new Constitution were related to its very extensive Bill of Rights which includes a limitation clause that is eerily close to s. 1 of the Canadian Constitution's Charter of Rights and Freedoms and whose formulation closely resembles Canada's Oakes Test. Apparently the Canadian Charter, among other constitutional documents, was one of the influences on South African efforts to develop a democratic constitution in the post-apartheid era."
• Legacy of R. v. Oakes - Proportionality Analysis under the Canadian Charter's Section 1 (November 20, 2006): "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."
• Supreme Court of Canada and Charter Equality Decisions (April 7, 2007): "The Parliamentary Research and Information Service of the Library of Parliament has released a new analysis entitled 'Charter Equality Rights: Interpretation of Section 15 in Supreme Court of Canada Decisions': (...) The Table of Contents of the document: (...) Section 1 A. The Oakes Test; B. The Flexible Approach; C. Separation of Powers; D. Additional Considerations"