Ancillary Issues with Oakes: The Development of the Waterfield Test and the Problem of Fundamental Constitutional Theory

22 Pages Posted: 10 Jun 2014

See all articles by Richard Jochelson

Richard Jochelson

Robson Hall, University of Manitoba Faculty of Law

Date Written: June 9, 2013

Abstract

This article reviews the development of the ancillary powers test in the Canadian criminal law context. The test bears striking similarities to the analytical framework postulated by the Supreme Court of Canada in the famous R v Oakes case. The ancillary powers test has British roots and its insertion into Canadian law has proven troubling for some members of the Court. This article addresses these concerns by demonstrating that, despite the analytical similarities of the two tests (the ancillary powers test and Oakes), the ancillary powers test creates unique problems in constitutional theory that raise serious issues about its legitimacy and appropriateness. This article also considers some of the socio-legal implications of the proliferation of the ancillary powers test. Finally, it concludes by agreeing with the dissenters at the Supreme Court of Canada who have argued that future cases should move away from using the test.

Keywords: Oakes, Waterfield, Ancillary Powers, Police Powers, Constitutional Law, Judicial Activism

JEL Classification: K00

Suggested Citation

Jochelson, Richard, Ancillary Issues with Oakes: The Development of the Waterfield Test and the Problem of Fundamental Constitutional Theory (June 9, 2013). Ottawa Law Review, Vol. 43, No. 3, 2013, Available at SSRN: https://ssrn.com/abstract=2447854

Richard Jochelson (Contact Author)

Robson Hall, University of Manitoba Faculty of Law ( email )

Winnipeg R3T 5V4, Manitoba
Canada

HOME PAGE: http://www.robsoncrim.com

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