SCC Replaces the Oakes Test with the Reasonableness Standard

Over the last several years, the Supreme Court of Canada has released numerous administrative law decisions where it found that the reasonableness standard of review should replace other standards.  On March 22nd 2012, in Dore v. Burraeu du Quebec, 2012 SCC 12, the Court extended this trend to proclaiming that the reasonableness standard should replace the Oakes test when determining whether an administrative tribunal’s action which limited a right under Canada’s Charter of Rights and Freedoms could nonetheless withstand s. 1 analysis.

Section 1 analysis refers to the judicial process of determining whether a government’s breach (or limitation) of a Charter right is nonetheless constitutional pursuant to s. 1 of the Charter, which states that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In 1985, the Supreme Court of Canada created the Oakes test for determining whether a Charter breach is reasonable and justifiable in a free and democratic society.  The Oakes test first involves determining whether the government’s limitation of a Charter right is the result of a pressing and substantial objective.  If it is, then the government must demonstrate that the means to achieve its objective are proportional.  Proportionality requires that:

  1. The means be rationally connected to the government’s pressing and substantial objective;
  2. That the means to achieve the objective involve a minimal impairment of Charter rights; and
  3. There must be proportionality between the infringement and the objective.

As the Court noted in Dore, the judiciary has had difficulty applying Oakes in a non-legislative context.  What, for example, is the pressing and substantial objective of an administrative decision?  Who has the burden of defending that decision?  The difficulty is further exemplified in immigration law by the fact that it is often not the tribunal itself that is a party to a proceeding.

Accordingly, the Supreme Court has proclaimed that in administrative law decisions, the reasonableness standard should apply to determining whether a Charter limitation is justified.  The Court adopted the reasonableness standard over the correctness standard because a) it reiterated that administrative law involves a tribunal’s complex interpretation of its enabling statute, of which the tribunal is the most familiar, and b) because the Court was concerned that adopting the correctness standard would lead to judicial review becoming a hearing de novo.

As such, where an administrative tribunal limits a Charter right, then the reasonableness standard will apply to determine whether that limitation is nonetheless constitutional.  The reasonableness analysis will center on proportionality, or ensuring that a tribunal interfere with a Charter guarantee no more than is necessary given a statutory objective.

It may be that the change does not result in any practical difference.  As the Court noted, “a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality…… in both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.”

On the other hand, moving away from a rigid formula to a more flexible reasonableness standard may actually lead to a flurry of Charter challenges, as reasonableness decisions are inherently factually and contextually based.

Indeed, I can think of a few areas that I think may be ripe for some Charter challenges under the new test.