2013-10-12 The Oakes Test to over-ride Charter Rights. How Prosecutors get around it.
This arises from my experience in trial over the Charter Right to Privacy of personal information.
I hope that people, including Law students, will challenge the idea that the Government, in over-riding a Charter Right, has to meet strict standards that protect the Charter Rights.
There is little protection because the procedure is flawed. It’s not too hard to see.
The following may be useful to someone, sometime.
THE WAY IT IS SUPPOSED TO WORK:
If the Government wants to over-ride a Charter Right, it must pass the OAKES TEST.
MORE DETAIL: please scroll down to Items # 3 & 4 in Charter of Rights and Freedoms, Section 8 Privacy . . . Oakes Test to override.
THE WAY IT WORKS IN PRACTICE – HOW IS THE OAKES TEST CIRCUMVENTED? . . . EASILY
The test has to be triggered by the Crown (the Prosecutors). All they have to do (as they did in my case), is to decline to argue the Oakes Test – – make some other argument. They can thereby extinguish a Charter Right without ever having to justify doing so.
It is a sound strategy if you are the Prosecutor, trying to win a case against a Charter Right.
But it has the consequence of making a mockery of the Oakes Test.
WHAT SHOULD BE
In defending a Charter Right, the Defence has to be able to compel the Crown to meet (to argue) the requirements of the Oakes Test.
The Test is irrelevant, unless there is some way in which the DEFENCE is able to trigger it.
Charter Rights in Canada are extremely vulnerable.
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UPDATE Feb 2016: From posting http://sandrafinley.ca/?p=16207
RE: former Chief Statistician agrees with the premise of your second reason (Charter Right to Privacy). He states that while the mandatory collection of personal information is in violation of the charter right, however it is a ‘legitimate violation of the right’ (the idea that rights may be rescinded for a social good) because it is a recognized necessity as outlined in the statistics act.
Yes, the Government may rescind the rights of an individual. However,
- The Statistics Act does not give the Government the authority to do that. StatsCan cannot just declare that this is so.
- In order to override the Charter Right of an individual, the Government has to pass the “Oakes Test“.
If StatsCan wishes to take away Canadians’ Charter Right to Privacy of Personal Information, it would have to make an application to the Court to do so, supplying the Court with the arguments to satisfy the Oakes Test. It has not done that. So the Charter Right stands.
INput received by email:
Regarding Oakes, it is a mainstay of the Constitutional Law courses in Canada. Even though I took Constitutional Law long before the Charter I know it well. It was actually formulated by the Supreme Court with significant influence from an article . . .