What is the Oakes test?

The Oakes test is the analytical framework the Supreme Court of Canada uses to decide whether a law that limits a Charter right is nevertheless a reasonable limit demonstrably justified in a free and democratic society under section 1 of the Canadian Charter of Rights and Freedoms. Chief Justice Brian Dickson set out the test in R. v. Oakes, decided unanimously on February 28, 1986.

The case concerned David Edwin Oakes, a Toronto man charged with possession of narcotics for the purpose of trafficking under section 8 of the federal Narcotic Control Act. The statute reversed the burden of proof: once the Crown proved possession, the accused had to prove they did not intend to traffic. The Supreme Court ruled that this reverse onus violated the section 11(d) presumption of innocence and was not a reasonable limit under section 1.

The Oakes test has two stages and three sub-tests at the second stage. First, the limit must pursue a pressing and substantial objective. Second, the means chosen must be proportionate to that objective: (i) the means must be rationally connected to the objective, (ii) the means must minimally impair the right, and (iii) there must be proportionality between the deleterious effects of the limit and its salutary effects. A law fails section 1 if it does not pass all stages.

The Oakes test is one of the most-applied frameworks in Canadian constitutional law. It has been used to uphold limits in cases such as R. v. Keegstra (1990, hate-speech provisions), to strike down limits in Reference re Same-Sex Marriage (2004), and to decide cases involving the criminal Code prohibition on physician-assisted dying in Carter v. Canada (2015). The test has also influenced human-rights jurisprudence in the United Kingdom, New Zealand, and South Africa, all of whose constitutions cite the Canadian Charter as a model.