The Increasing Irrelevance of Section 1 of the Charter

This paper addresses the topic of judicial deference to legislative choices under section 1 of the Canadian Charter of Rights and Freedoms. More specifically, it asks, in what circumstances will the Supreme Court of Canada accord such deference and has the standard of justification under section 1 become diluted. The paper examines the Supreme Court of Canada's treatment of the Oakes test since its inception in 1986 and then identifies three themes that have emerged in this area. First, that section 1 has been marginalized through the development of internal balancing tests in the definition of substantive rights under the Charter. Second, that the original universality of the Oakes test has given way to context or right-specific adjudication whereby section 1 seems to be applied on an ad hoc basis. Third, in recent years the Supreme Court of Canada has severely weakened the evidentiary requirement needed to justify an infringement of a right under section 1. The article concludes by suggesting that the Oakes test be abandoned as a universal standard of justification and replaced with a rights-specific approach.