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Charter - Oakes Test (s.1) (2). Taylor v. Newfoundland and Labrador
In Taylor v. Newfoundland and Labrador (SCC, 2026) the Supreme Court of Canada partially allowed an appeal, this brought against a Newfoundland and Labrador Court of Appeal order that dismissed an earlier appeal from a Superior Court dismissal of an application seeking "a declaration that the [SS: covid-era] Travel Restrictions infringed the mobility rights in s. 6 of the Charter, could not be justified under s. 1, and were of no force and effect".
The court sets out the general structure of it's s.1 Oakes analysis:C. The Travel Restrictions Are Demonstrably Justified Under Section 1
(1) The Law
[187] The rights and freedoms protected under the Charter are not absolute (Oakes, at p. 136). When the claimant has established an infringement of a Charter right, the government may seek to justify the limit under s. 1:1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [188] Section 1 performs two functions: (1) it constitutionally guarantees the rights and freedoms enumerated in the provisions that follow; and (2) it outlines the exclusive justificatory criteria against which limits on rights and freedoms must be measured (Oakes, at pp. 135-36). Section 1 therefore both guarantees the rights and freedoms set out in the Charter and allows their reasonable limitation.
[189] In the early years of the Charter, this Court sought to establish a framework to determine when a limit on a Charter right could be justified under s. 1. In Big M, Dickson J. laid out concepts central to what later became the Oakes test. The Court called for a two-stage analysis which first addressed the purpose of the infringing state action, and then measured whether the means used to achieve that purpose were proportionate to the ends sought (p. 352). Oakes built on these concepts of purpose and proportionality and reframed the two stages into four questions which now supply the framework for a s. 1 justification analysis.
[190] The first stage under Big M requires an assessment of “which government objectives are of sufficient importance to warrant overriding a constitutionally protected right or freedom” (p. 352). Oakes restated the question as whether the legislative goal is “pressing and substantial in a free and democratic society” (pp. 138-39). To answer this question, courts make a normative assessment of the values and principles that lie at the heart of a free and democratic society (p. 136; see also Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825, at para. 77). Oakes detailed a non-exhaustive list of such values and principles: “. . . respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society” (p. 136). These are principles and values from which the rights and freedoms protected in the Charter themselves were born (p. 136; see also R. v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 S.C.R. 697, at p. 736; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at pp. 1052 and 1056).
[191] For a law to pass this first stage of Oakes, its legislative objective must relate to values or principles that underlie a free and democratic society (pp. 138-39). Thus, legislative objectives that are trivial or discordant with the principles of a free and democratic society cannot be justified under s. 1 (p. 138).
[192] If the court accepts that there is a pressing and substantial objective, it must go on to determine whether the means the law employs to achieve the objective are reasonable (Big M, at p. 352). The s. 1 reasonableness analysis requires courts to balance the interests of society against those of specific rights-bearing groups or individuals (Oakes, at p. 139). Some level of judicial deference is required, as s. 1 merely requires that the limits be “reasonable” (Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 97; R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 67). Courts acknowledge that there may be more than one solution to any particular social problem, and that legislatures are often better positioned than the judiciary to choose from that range of options when faced with complex social issues (Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 53).
[193] Whether a limit is reasonable is a question of proportionality. Under Oakes, the assessment of proportionality has three components. First, the limit must be rationally connected to the objective. This analysis inquires into whether the government has shown “that the restriction on rights serves the intended purpose” (RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 153). The measure should not be arbitrary, unfair, or based on irrational considerations (Oakes, at p. 139). Second, the limit must minimally impair the right or freedom. The court must inquire into whether the measure impairs the right no more than is necessary to advance the objective (p. 139). Third, there must be proportionality between the salutary effects that result from the measure’s implementation on the one hand, and the deleterious effects that the measure has on rights and freedoms on the other (Dagenais, at p. 889). Unlike the other components of proportionality, this final component requires an assessment of the law’s effects, rather than its selected means.
(a) The Role of Context
[194] The Oakes test is to be applied flexibly, having regard to the specific factual and social context of each case (RJR-MacDonald, at para. 63). In Thomson Newspapers Co. v. Canada (Attorney General), 1998 CanLII 829 (SCC), [1998] 1 S.C.R. 877, the Court outlined contextual considerations that may be relevant in conducting a s. 1 analysis, including: (1) the nature of the harm targeted by the legislation and its resistance to precise measurement; (2) the vulnerability of the population at issue; (3) the presence of subjective fears or apprehension; and (4) the character of the activity alleged to be infringed. These contextual factors were later applied by this Court as part of a broader rationale for judicial deference to legislative choices in certain circumstances (see, e.g., Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827; R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527).
[195] The role of these contextual considerations was clarified in Health Services. While they remain relevant, this Court confirmed that the justification analysis under s. 1 requires satisfying the Oakes test. Contextual factors such as those discussed in Thomson Newspapers and other cases may inform how the Oakes test is applied, but they are not to be seen either as a separate test or a preliminary stage of the analysis. . Ontario Public Service Employees Union v. Ontario (Attorney General)
In Ontario Public Service Employees Union v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against a dismissal of a labour union's application for "a declaration that Bill 178 [SS: 'Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017'] limited the rights of OPSEU members to freely associate in striking under s. 2(d) [SS: 'freedom of association'] of the Canadian Charter of Rights and Freedoms in a manner that could not be justified under s. 1 of the Charter, and a declaration under s. 52 of the Constitution Act, 1982 that Bill 178 is of no force and effect".
Here the court considered whether the 'Colleges of Applied Arts and Technology Labour Dispute Resolution Act, 2017' (which was 'back-to-work' legislation) and which breached Charter s.2(d) ['freedom of association'], was justified under Charter s.1 [ie. was 'demonstrably justified']:E. Issue 2: Did Ontario demonstrably justify Ending The strike under s. 1 of the Charter?
[19] Section 1 states that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
[20] The method for assessing whether a limit on a fundamental freedom is demonstrably justified under s. 1 was prescribed by the Supreme Court in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7. A flexible, contextual approach has won out over a rigid application of Oakes, especially in the wake of Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; and R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906. Indeed, in La Forest J.’s view, the Oakes test is not a set of rigid rules to be applied, but “a checklist, guidelines for the performance” of judicial duties: Gerard V. La Forest, “The Balancing of Interests under the Charter” (1992) 2 N.J.C.L. 133, at pp. 145-48. . Hillier v. Ontario
In Hillier v. Ontario (Ont CA, 2025) the Ontario Court of Appeal allowed a Charter s.2(c) ['Peaceful Assembly'] appeal, this from POA convictions under the Reopening Ontario (A Flexible Response to COVID-19) Act.
Here the court canvasses basics of the Charter s.1 Oakes test:(a) Section 1 Governing Principles
[45] The method for assessing whether a limit on a fundamental freedom is demonstrably justified under s. 1 was prescribed by the Supreme Court in R. v. Oakes.[53] It was developed to structure the inquiry into whether a limit on the exercise of a Charter right is demonstrably justified in a free and democratic society. Not only does the Oakes test shape this legal analysis, but it also constrains and disciplines courts in order to render the final balancing step intelligible and transparent. A flexible, contextual approach has won out over a rigid application of Oakes, especially in the wake of Hutterian Brethren, Canada (Attorney General) v. Bedford,[54] and Carter v. Canada (Attorney General).[55] In La Forest J.'s view, the Oakes test is not a set of rigid rules, but “a checklist, guidelines for the performance” of judicial duties.[56]
[46] The first step of the Oakes test is to determine whether the legislative goal of the measure imposing the gathering limits was pressing and substantial. As the application judge noted, at para. 72: “Mr. Hillier concedes that the Gathering Restrictions were enacted to address a pressing and substantial concern, namely COVID-19.” Mr. Hillier did not retreat from this concession in this court. The pressing and substantial concern was to reduce the spread of COVID-19. Ontario therefore meets the first step of the Oakes test.
[47] The second Oakes step is to determine whether there is proportionality between the objective of the legislation and the means chosen to achieve it. This step engages three inquiries:1. Rational connection: is there a causal link between the gathering limits and the pressing and substantial objective of preventing the spread of COVID-19?
2. Minimal impairment: does the ban on peaceful assembly impair the exercise of that fundamental freedom more than is reasonably necessary to accomplish the objective?
3. Proportionate effects: is there proportionality between the deleterious effects of the ban on peaceful assembly and the salutary effects of the law imposing the limit?[57] [48] In Ontario (Attorney General) v. G, Karakatsanis J. noted that the Oakes test has evolved; it “now focuses on justifying the infringing measure rather than the law as a whole”.[58] . Ontario English Catholic Teachers Association v. Ontario (Attorney General)
In Ontario English Catholic Teachers Association v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal considered (and mostly dismissed) a Crown appeal from a successful lower court Charter s.2(d) ['freedom of association'] application by unions and employees associations against Ontario legislation ['Protecting a Sustainable Public Sector for Future Generations Act, 2019' (PSPSFGA)] limiting public sector salary raises by statute.
In these quotes, the court generally considers the s.1 Charter Oakes 'balancing' test - here after finding a s.2(b) freedom of association violation:H. IS THE ACT SAVED BY S. 1 OF THE CHARTER?
[146] Section 1 of the Charter provides that the Charter “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
[147] Once a law has been found to violate a Charter right, the government bears the onus of establishing that the law is a reasonable limit on that right. This must be shown on a balance of probabilities: Health Services, at paras. 138-39.
[148] The test in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, applies to deciding whether a law is saved by s. 1 of the Charter. The government must first establish that the impugned law pursues a pressing and substantial objective. Next, the government must establish that the objective of the law is proportional to the means chosen to achieve the objective. This aspect of the test has three components. First, there must be a rational connection between the pressing and substantial objective and the means chosen to achieve the objective. Second, the law must be minimally impairing. Third, the salutary effects of the law must be proportional to its deleterious effects. Further, “the Oakes test must be applied flexibly, having regard to the factual and social context of each case”: RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 132.
[149] In Health Services, at para. 108, the Supreme Court explained that, in the context of a law infringing the right to collective bargaining under s. 2(d) of the Charter:[Section 1] may permit interference with the collective bargaining process on an exceptional and typically temporary basis, in situations, for example, involving essential services, vital state administration, clear deadlocks and national crisis. [150] As discussed below, I find that the Act is not saved by s. 1 of the Charter. I accept that Ontario has established that the Act has a pressing and substantial objective. However, while I find that the objective is generally rationally connected to the Act, I do not find that the objective is rationally connected in its application to workers in the electricity sector, namely the members of the Society of United Professionals and PWU, or to the members of the Carleton University Academic Staff Association and academic staff at other universities. In addition, I am not persuaded that the Act minimally impairs the respondents’ collective bargaining rights or that its salutary effects are proportional to its deleterious effects. I address each of these issues below.
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