What is the Oakes Test?

The Oakes test comes from a Supreme Court of Canada decision, R. v. Oakes, [1986] 1 SCR 103. This case raised important issues around reasonable limits on rights and freedoms as well as the interpretation of Section 1 of the Charter:

1. 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.

The Oakes decision establishes a process (“the Oakes Test”) for evaluating the reasonableness of any limit on Charter rights and freedoms and would apply to any by-law placing restrictions on protest activities. Under the Oakes Test, the City of Ottawa would have to demonstrate:

1. The by-law’s objective must be pressing and substantial. It must be sufficiently important to justify limiting a Charter freedom.
2. There must be proportionality between the by-law’s objective and the means used to achieve it:
   1. The limits imposed by the by-law must be rationally connected to the by-law’s objective.
   2. The limits must minimally impair the right or freedom, and not more than is reasonably necessary to accomplish the objective.
   3. The benefits of the infringements must outweigh its consequences.[i]

This is part of the framework that will be used to guide policy development and decision making related to protecting vulnerable social infrastructure.

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