Rational Connections: Oakes, Section 1 and the Charter's Legal Rights

22 Pages Posted: 19 Jan 2016 Last revised: 11 May 2016

See all articles by Carissima Mathen

Carissima Mathen

University of Ottawa - Common Law Section

Date Written: May 2016

Abstract

Any review of Charter jurisprudence will rank R v Oakes at or very near the top. The decision where the Supreme Court of Canada set out its approach to justifying rights limits under section 1, Oakes has been cited hundreds of times over the last quarter-century. Much scholarship has been devoted to “the Oakes test,” and to questions of deference, evidence and judicial review. One aspect, though, has tended to escape notice: rational connection. Given that the law at issue in Oakes foundered at this first stage of proportionality, its muted legacy is intriguing. This article takes a fresh look at rational connection, arguing that it is essential to the overall process of justification and a rich source of principles that have particular purchase in the criminal law context. It urges a reinvigorated approach, noting a number of attendant benefits, including rendering section 1 more consistent with Oakes’ original vision.

Suggested Citation

Mathen, Carissima, Rational Connections: Oakes, Section 1 and the Charter's Legal Rights (May 2016). Ottawa Law Review, Vol. 43, No. 3, 2012, Ottawa Faculty of Law Working Paper No. 2016-07, Available at SSRN: https://ssrn.com/abstract=2717832

Carissima Mathen (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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