In this paper, the authors develop their the sis that the time has come to abandon the universal framework for the application of section 1 of the Canadian Charter of Rights and Freedoms set out in R. v. Oakes. The paper describes how the Oakes test has been eroded, diluted and, in some cases, abandoned. The authors review the history of the application of the Oakes test, as well as recent developments in Supreme Court jurisprudence. The paper concludes that the Supreme Court’s struggles with Oakes are inherent in any attempt to apply a universal approach to section 1 analysis, and conclude that a rights-specific approach to section 1 balancing should be adopted.
Bredt, Christopher D. and Pessione, Heather K..
"The Death of Oakes: Time for a Rights-Specific Approach?."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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