Effecting Balance: Oakes Analysis Restaged

24 Pages Posted: 23 Jan 2016

See all articles by Mark Zion

Mark Zion

University of Victoria, Faculty of Law, Students

Date Written: 2012

Abstract

This article challenges the present structure of the R v Oakes test for Charter section 1 applicability, which is one form of international four-stage proportionality analysis (PA). The article argues that stage four of the test — proportionality stricto sensu (PSS) in the international setting — ought to determine case out- comes routinely. Accordingly, other stages must be modified so that each one has a necessary and logical function. First, the article surveys the evolution of German doctrine and proposes Canadian changes. Second, the article draws on the works of Gregoire Webber and Robert Alexy to theorize the most democratically contentious stage within PA, which is PSS. Third, the article engages in a structural comparison between the Israeli Supreme Court’s “robust PSS” decision by President Bara, Beit Sourik, with the Supreme Court of Canada’s “weak PSS” decision by Chief Justice McLachlin, Wilson Colony, arguing in favour of the former approach. Fourth, the article refutes the positions of Webber and Jurgen Habermas in affirming that a four-stage framework, if applied properly, is preferable to straightforward “moral reflection.” Finally, the article considers the extent to which one pernicious form of “deference” has impeded the evolution of Canadian PA, and argues that it undermines the rule of law. In conclusion, the article proposes that restructuring the Oakes test along Israeli and German lines not only makes the most sense with respect to the stages’ logical functions, but that such an approach would be consonant with the Rawlsian idea that a decision procedure (such as Oakes) ought to be judged by the likelihood that it will produce just outcomes. Stage four considers outcomes explicitly.

Suggested Citation

Zion, Mark, Effecting Balance: Oakes Analysis Restaged (2012). Ottawa Law Review, Vol. 43, No. 3, 2012, Available at SSRN: https://ssrn.com/abstract=2717813

Mark Zion (Contact Author)

University of Victoria, Faculty of Law, Students ( email )

PO Box 2300, STN CSC
Victoria, British Columbia
Canada

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