The Canadian Charter of Rights and Freedoms guarantees all individuals in Canada a wide range of fundamental rights and freedoms. However, these rights are not absolute. Section 1 of the Charter allows for the limitation of these rights if the limitation is “reasonable and demonstrably justified in a free and democratic society.”
The Oakes test, named after the landmark case R. v. Oakes, provides a framework for determining whether a limitation on a Charter right is justified under Section 1 and is most commonly invoked in criminal law matters.
The Oakes Test: A Four-Part Framework
Pressing and Substantial Objective
The government must demonstrate that the objective of the law or government action that limits a Charter right is sufficiently important to justify the infringement. This means that the aim must be of pressing social concern and not merely a trivial matter.
Rational Connection
A rational connection must exist between the means chosen to achieve the objective and the objective itself. In other words, the means used to limit the Charter right must be logically linked to the objective being pursued.
Minimal Impairment
The means chosen to achieve the objective must impair the Charter right as little as possible. This means that the government must consider alternative means of achieving the objective that would have a less severe impact on the Charter right.
Proportionality
The limitation’s deleterious (detrimental) effects on the Charter right must be proportionate to the objective being achieved. This means that the benefits of the limitation must outweigh the harm caused to the Charter right.
The Oakes Test and the Rights of the Accused
In the context of criminal law, the Oakes test is particularly relevant to the rights of the accused. It assesses the reasonableness of government actions that may infringe upon these rights. Several key areas where the Oakes test is applied include:
Search and Seizure
The Charter guarantees the right to be secure against unreasonable search and seizure. When law enforcement conducts a search, the Oakes test is used to determine its reasonableness. Factors considered include:
- The nature of the search: Was it a search of a person, a home, a vehicle, a place of business, or some other location? Was it conducted with a warrant or without a warrant? If a warrant was obtained, was it issued by a neutral and independent judicial officer? Was the warrant based on reasonable grounds to believe that an offence had been committed?
- The gravity of the offence being investigated: Is the offence serious or minor? The more serious the offence, the more likely a search will be justified. However, even minor offences may require a warrant if the search is expected to be intrusive or involve significant privacy concerns.
- The circumstances of the search: Was the search conducted in a reasonable manner? Was it conducted with unnecessary force or intrusiveness? Were the individuals involved treated with respect and dignity?
- The nature of the evidence sought: Is the evidence sought relevant to the investigation? Is it likely to be incriminating? Is it necessary to seize the evidence to prevent its destruction or to preserve it for trial?
Detention and Arrest
The Charter protects the right to be free from arbitrary detention or imprisonment. The Oakes test is used to assess the justification for an arrest or detention, considering factors such as:
- The existence of reasonable grounds for arrest: Did the police have sufficient evidence to believe that the person had committed a crime? This evidence can come from eyewitness accounts, physical evidence, or information from informants.
- The necessity of the arrest: Was it necessary to arrest the person to prevent them from fleeing, to protect the public, or to preserve evidence? Could the matter have been resolved through alternative means, such as issuing a summons or a promise to appear?
- The duration of the detention: Was the detention as short as possible? Were reasonable steps taken to release the person as soon as possible? This includes factors such as the availability of a judge to consider bail, the complexity of the investigation, and the need to obtain evidence or witnesses.
- The circumstances of the arrest and detention: Was the arrest conducted in a reasonable manner? Were the individual’s rights respected, such as the right to remain silent and the right to legal counsel? Was the detention conducted in a humane and dignified manner, with adequate access to necessities like food, water, and medical care?
- The impact of the arrest and detention on the individual: Did the arrest and detention cause any significant harm or disruption to the individual’s life, such as loss of employment, damage to reputation, or emotional distress?
Disclosure of Evidence
The Charter guarantees the right to make full answer and defence, which includes the right to full disclosure of evidence by the Crown. The Oakes test is used to determine whether the Crown’s failure to disclose evidence is justified. Factors considered include:
- The nature of the undisclosed evidence: Is the evidence relevant to the defence? Is it likely to significantly impact the outcome of the case?
- The reasons for the Crown’s failure to disclose: Was the failure due to negligence or intentional misconduct? Were reasonable steps taken to disclose the evidence as soon as possible?
- The prejudice to the accused: Was the accused prejudiced by the failure to disclose the evidence? Was the accused able to prepare a full and effective defence?
Bail
The Charter guarantees the right to be released from detention pending trial. The Oakes test is applied to determine the justification for a detention order and denial of bail. Factors considered include the seriousness of the offence, the risk of flight or reoffending, the strength of the Crown’s case, and the availability of sureties. Additionally, the court will consider the accused’s ties to the community, their employment status, and any potential risks to the public or victims. The court will also weigh the potential impact of detention on the accused’s personal circumstances, such as their family, health, and livelihood.
Sentencing
The Charter guarantees the right to be treated with humanity and respect for the inherent dignity of the human person. The Oakes test is used to determine whether a sentence is proportionate to the offence committed, considering factors such as the seriousness of the offence, the offender’s criminal record, and the need for deterrence, denunciation, and rehabilitation. Additionally, the Oakes test helps ensure that sentences are not so severe as to be considered cruel and unusual punishment. This means the sentence must be proportionate to the crime and not disproportionately harsh or excessive.
The Oakes test is also relevant to the issue of concurrent or consecutive sentences. If an offender is convicted of multiple offences, the court must decide whether the sentences should be served at the same time (concurrently) or one after the other (consecutively). The test can be used to determine whether a consecutive sentence is justified, considering factors such as the seriousness of the offences, the offender’s criminal history, and the need to protect the public.
Barrison Law: Oshawa Criminal Defence Lawyers Protecting Individuals’ Charter Rights
The Oakes test is a fundamental tool for protecting the rights of the accused. By ensuring that limitations on Charter rights are reasonable and demonstrably justified, the Oakes test helps maintain a fair and just criminal justice system. However, It is important to remember that the Oakes test is a complex legal doctrine that is often applied in a nuanced way. The specific application of the test will vary depending on the facts of each case. As a result, it is crucial for individuals accused of crimes to seek legal advice to understand how the Oakes test may impact their rights.
Since 2014, Barrison Law has provided trusted advocacy to individuals charged with a broad range of offences, from driving offences to first-degree murder charges. Our criminal defence lawyers are experienced in protecting clients’ Charter rights at all stages of a criminal proceeding, from arrest to sentencing. Our firm is renowned for providing reliable, effective courtroom representation and skilled negotiations with the Crown. To schedule a confidential consultation, please contact us online or call 905-404-1947.