This Supreme Court ruling needs a renovation: Gerard Kennedy & Geoffrey Sigalet

There’s a growing debate in Canada about balancing the relationship between courts and legislatures.

For nearly four decades, one Supreme Court ruling has loomed large in shaping an aspect of this debate: how conflicts between rights – and their limitations – are determined in Canada.

That case – R v Oakes, decided in 1986 – gave Canadian jurisprudence the famous “Oakes test,” which courts still use to assess whether limits on Charter rights are justified.

The test is widely cited. But critics argue it’s become confusing, unpredictable, and undermines the historic power legislatures are meant to share in the construction of rights.

That’s why a new paper published by the Macdonald-Laurier Institute – titled Renovating Oakes: Why Section 1 Justifies Reasonable Limits and Not Infringements on Charter Rights – says the Oakes test is in need of a “renovation.”

The authors of that paper, Gerard Kennedy and Geoffrey Sigalet, joined Inside Policy Talks to make that case.

Gerard Kennedy is an associate professor and associate dean at the University of Alberta’s Faculty of Law. He’s also a constitutional lawyer with extensive experience in public law and Charter litigation.

Geoffrey Sigalet is an associate professor of political science at the University of British Columbia and director of the UBC Research Group for Constitutional Law.

On the podcast, they tell Mark Mancini, an MLI senior fellow and assistant professor at Thompson Rivers University Faculty of Law, that when it comes to the Oakes test, courts have drifted away from the Charter’s original logic.

“People are not skeptical enough about what happens in courts, and they are extremely skeptical about what happens in legislatures,” says Sigalet. “And I don't think that they're wrong sometimes about the legislatures. I just think we should be applying our skepticism a bit more evenly.”