Unit 2 - Oakes Test

Question 1

What is the purpose of the Oakes test?

Answer 1

Analysis applied to figure out if a law or policy infringes our rights or freedoms beyond a reasonable limit. Onus is on the government to prove that the infringement is justified.

Question 2

What are the 5 questions that must be asked for the Oakes test?

Answer 2

1. Is the infringement prescribed by law
2. Is the purpose of the law pressing and substantial
3. Is the law rationally connected to its purpose
4. Does the law minimally impair the infringed right
5. Do positive effects outweigh the negative

Question 3

What are the 6 remedies for a charter violation?

Answer 3

Striking down - court can declare a law null and void

Partial invalidity- court can remove part of the law, so that it might comply with the charter

Reading down - court interprets the legislation more narrowly

Reading in - is used when a law is under inclusive, and needs to extend protection to others

Constitutional Exemption - court may order that a particular law is valid but a certain individual is exempt from its application

Temporary suspension of invalidity - declare that a statute, or provision within, is invalid but allow the law to remain in force to allow parliament or legislature to change the law and bring it into compliance with charter