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.
When enacted in 1982, section 1 of the Charter represented an innovation in human rights law, as it set out a general framework for justifying limits on rights and freedoms guaranteed in the Charter. There is no similar provision in the Canadian Bill of Rights.
With respect to international instruments binding on Canada, somewhat similar provisions may be found in the International Covenant on Economic, Social and Cultural Rights, which contains stand-alone limitation provisions in Articles 4 and 5. The International Covenant on Civil and Political Rights contains limitation provisions which are specific to certain rights: Articles 12 (mobility rights), 14(1) (open courts), 18 (freedom of thought, conscience and religion), 19 (freedom of expression and opinion), 21 (right of peaceful assembly) and 22 (freedom of association).
See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: the South African Constitution’s Bill of Rights includes a very similar general limitation clause in section 36. The European Convention on Human Rights contains limitation clauses which are specific to rights and freedoms guaranteed under that Convention: Articles 8(2) (right to privacy), 9(2) (freedom of thought, conscience and religion), 10(2) (right to freedom of expression) and 11(2) (right to freedom of peaceful assembly and right to freedom of association); that Convention, however, does not contain a stand-alone limitation provision. The United States Bill of Rights does not contain a similar provision.
Section 1 effects a balance between the rights of the individual and the interests of society by permitting limits to be placed on guaranteed rights and freedoms.
“Most modern constitutions recognize that rights are not absolute and can be limited if this is necessary to achieve an important objective and if the limit is appropriately tailored, or proportionate.” (Canada (Attorney General) v. JTI-Macdonald Corp.,  2 S.C.R. 610, at paragraph 36).
The values and principles which guide the Court in applying section 1 include the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society (R. v. Oakes,  1 S.C.R. 103 at page 136).
Section 1 is engaged only after a finding has been made that a right or freedom has been infringed.
The onus of proof under section 1 is on the person seeking to justify the limit, which is generally the government (Oakes, supra). The standard of proof is the civil standard or balance of probabilities (Oakes, supra).
“Demonstrably justified” connotes a strong evidentiary foundation. Cogent and persuasive evidence is generally required (Oakes, supra). Where scientific or social science evidence is available it will be required; however, where such evidence is inconclusive, or does not exist and could not be developed, reason and logic may suffice (Libman v. Quebec (A.G.),  3 S.C.R. 569; RJR-MacDonald Inc. v. Canada (Attorney General),  3 S.C.R. 199; Thomson Newspapers Co. v. Canada (A.G.),  1 S.C.R. 877; R. v. Sharpe,  1 S.C.R. 45; Harper v. Canada (A.G.),  1 S.C.R. 827, at paragraph 77; R. v. Bryan,  1 S.C.R. 527, at paragraphs 16-19, 29; Mounted Police Association of Ontario v. Canada (Attorney General),  1 S.C.R. 3, at paragraphs 143-144). In some contexts, where the scope of the Charter infringement is minimal, social science evidence may not be necessary for a section 1 justification (B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6).
2. “Prescribed by law”
In order to be capable of justification under section 1, the limit on the right or freedom must be “prescribed by law”. The limit may be:
- either express or implied in a statute or a regulation (R. v. Therens,  1 S.C.R. 613; R. v. Thomsen,  1 S.C.R. 640; R. v. Orbanski; R. v. Elias  2 S.C.R. 3);
- in a government policy, where: (1) the government entity was authorized to enact the policy; (2) the policy sets out binding rules of general application, i.e., of a legislative nature, (such as rules of a regulatory body or provisions of a collective agreement) as opposed to those which are administrative in nature (such as internal guidelines or interpretive aids for government officials); (3) the policy is sufficiently precise so as to enable people to regulate their conduct by it, and so as to provide guidance to those who apply the law; (4) the policy is sufficiently accessible to give notice to the public of the rules to which they are subject (Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component,  2 S.C.R. 295, at paragraphs 50, 65).
- a common law limit, assuming there is sufficient government action for the Charter to apply (Therens, supra; RWDSU v. Dolphin Delivery,  2 S.C.R. 573; R. v. Swain,  1 S.C.R. 933; Dagenais v. Canadian Broadcasting Corporation,  3 S.C.R. 835); R. v. N.S.,  3 S.C.R. 726.
Discretionary administrative decision-making limiting a right or freedom was previously regarded as a limit ‘prescribed by law’ under section 1, and subject to the traditional Oakes test (Slaight Communications Inc. v. Davidson,  1 S.C.R. 1038; Ross v. New Brunswick School Board No. 15,  1 S.C.R. 825; Wynberg v. Ontario,  82 O.R. (3d) 561 (C.A.), at paragraph 150ff). The Court also previously held that government actions not authorized by statute are not ‘prescribed by law’ (Little Sisters Book and Art Emporium v. Canada (Minister of Justice),  2 S.C.R. 1120, at paragraph 141). However, the Supreme Court revisited its jurisprudence in 2012 and concluded that when reviewing the exercise of discretionary authority and its compliance with the Charter, an administrative law-based analysis is preferred over a traditional section 1 Oakes test (Doré v. Barreau du Québec,  1 S.C.R. 392, at paragraph 57). See also “Discretionary Administrative Decision-Making” below for further discussion.
In order to be “prescribed by law” a limit must not be vague (see also “vagueness” under Charter section 7). Rather, it must be precise and ascertainable; there must be standards and criteria by which it may be determined (JTI-Macdonald, supra, at paragraphs 77-79; Irwin Toy Ltd. v. Quebec (Attorney General),  1 S.C.R. 927; Butler, supra; Luscher v. Deputy Minister, Revenue Canada, Customs and Excise,  1 F.C. 85). The test is whether the provision is so vague that it fails to provide an intelligible legal standard (R. v. Nova Scotia Pharmaceutical Society,  2 S.C.R. 606; Irwin Toy, supra; Butler, supra). However, it is only in rare cases that a provision will be held to be so vague as not to qualify as a limit prescribed by law (Nova Scotia Pharmaceutical, supra).
3. The Oakes test
A limit on a Charter right must be “reasonable” and “demonstrably justified.” The applicable test was originally set out in Oakes and is now well-established (see, e.g., Egan v. Canada,  2 S.C.R. 513, at paragraph 182; Vriend v. Alberta,  1 S.C.R. 493, at paragraph 108; Canada (Attorney General) v. Hislop,  1 S.C.R. 429, at paragraph 44; JTI-Macdonald, supra, at paragraphs 35-36):
- Is the legislative goal pressing and substantial? i.e., is the objective sufficiently important to justify limiting a Charter right?
- Is there proportionality between the objective and the means used to achieve it?
The second branch of the test has three elements:
- “Rational Connection”: the limit must be rationally connected to the objective. It must not be arbitrary, unfair or based on irrational considerations;
- “Minimal Impairment”: the limit must impair the right or freedom no more than is reasonably necessary to accomplish the objective. The government will be required to show that there are no less rights-impairing means of achieving the objective “in a real and substantial manner” (Carter v. Canada (Attorney General),  1 S.C.R. 331, at paragraph 102; citing Hutterian Brethren,  2 S.C.R. 567, at paragraph 55).
- “Final Balancing”: “whether there is proportionality between the effects of the measure that limits the right and the law’s objective” [emphasis added] in terms of the greater public good (Carter, supra, at paragraph 122; JTI-Macdonald, supra, at paragraph 45; see also Lavoie v. Canada,  1 S.C.R. 769, at paragraph 53).
Application of the Oakes test should not be approached in a mechanistic fashion; rather, it should be applied flexibly, having regard to the factual and social context of each case (RJR-MacDonald, supra, at paragraph 63; Ross, supra; Canadian Broadcasting Corporation v. New Brunswick (Attorney General),  3 S.C.R. 480; Edmonton Journal v. Alberta (Attorney General),  2 S.C.R. 1326; Stoffman v. Vancouver General Hospital,  3 S.C.R. 483; R. v. Keegstra,  3 S.C.R. 697; R. v. Butler,  1 S.C.R. 452; Thomson Newspapers, supra, at paragraph 87)).
4. Pressing and substantial objective
The purpose of the law or infringing measure must be:
- of significant importance and consistent with the principles integral to a free and democratic society (Vriend, supra; Figueroa v. Canada (A.G.),  1 S.C.R. 912);
- the objective of the specific infringing measure or omission, which may not always be the same as the objective of the legislation as a whole (RJR-MacDonald, supra; Vriend, supra, at paragraphs 110-11; M. v. H., supra, at paragraph 82; Hislop, supra, at paragraph 45);
- specific rather than general; overly abstract or idealized objectives are suspect. However, it may be helpful to articulate a broader overarching objective in addition to narrower sub-objectives (Sauvé v. Canada (Chief Electoral Officer),  3 S.C.R. 519; JTI-Macdonald, supra, at paragraph 38; Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia,  2 S.C.R. 391, at paragraph 146);
- the real or actual objective (Tetreault-Gadoury v. Canada (Employment and Immigration Commission,  2 S.C.R. 22);
- the objective of the impugned measure at the time the measure was adopted (R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295; R. v. Zundel,  2 S.C.R. 731 at paragraph 45). A shift in purpose is not permissible, but a shift in emphasis over time may be permitted (Butler, supra, at 495-46; see also R. v. Malmo-Levine,  3 S.C.R. 571, at paragraph 65).
Since the proportionality branch of the section 1 test is tied to the objective, it is important to define the objective carefully and with precision. It cannot not be simply a description of the means the legislature has chosen to achieve its purpose (R. v. K.R.J., 2016 SCC 31, at paragraph 63).
Canada’s international treaty obligations may help to establish a pressing and substantial objective (Slaight Communications, supra, at pages 1056-57; Lavoie, supra, at paragraphs 56-58; Keegstra, supra, at page 750; Ross, supra, at paragraph 98; R. v. Lucas,  1 S.C.R. 439, at paragraph 50).
Laws may be found to infringe the Charter, usually under the section 15 (equality), where they are “underinclusive” — that is, where they fail to include a group that should rationally benefit from the provision. In these cases, there may not be a separate objective for the omission and it should be considered as a means of furthering the objectives of the specific provision in question and/or the legislation as a whole (M. v. H.,  2 S.C.R. 3, at paragraph 101, involving a challenge to the exclusion of same sex couples from the definition of common law spouse under the Ontario Family Law Act). An exception to this is where the Charter infringement is a result of a deliberate omission by the legislature that appears to be directly at odds with the objective of the legislation as a whole. In such cases, the government must advance a separate objective being furthered by the omission (e.g., Vriend, supra, where the claimant challenged the exclusion of “sexual orientation” as a ground under Alberta’s human rights legislation).
Cost and/or administrative convenience alone have not traditionally been accepted by the Supreme Court as a pressing and substantial objective for the justification of an infringement (Health Services, supra, at paragraph 147; Nova Scotia (Workers’ Compensation Board) v. Martin,  2 S.C.R. 504; Figueroa, supra; Eldridge v. British Columbia (Attorney General),  3 S.C.R. 624; Reference re: Remuneration of Judges of the Provincial Court of P.E.I., 3 S.C.R. 3; Schachter v. Canada,  2 S.C.R. 679; R. v. Lee,  2 S.C.R. 1384; Singh v. Minister of Employment and Immigration,  1 S.C.R. 177).
However, in Newfoundland (Treasury Board) v. Newfoundland and Labrador Assn. of Public and Private Employees (N.A.P.E.),  3 S.C.R. 381, the majority of the Supreme Court held that the need to address a “fiscal crisis” could constitute a pressing and substantial objective under section 1. The Court suggested that, in order for the government to rely on this decision, the financial health of the government as a whole would have to be in jeopardy and cuts would have to be made to more than just programs involving Charter-protected rights. The Court did note that “financial considerations wrapped up with other public policy considerations” could qualify as a pressing and substantial objective (N.A.P.E., supra, at paragraph 69). In Figueroa, supra, the Court accepted for the purpose of the section 1 analysis that “ensuring the cost-efficiency of the tax credit scheme is a pressing and substantial concern”. In Hislop, supra, the Court recognized that cost “may be a factor” in the section 1 analysis but found there was an absence of evidence of cost to support such an analysis.
The means used to attain the objective of a provision must be proportional to the importance of that objective. The following three-step analysis is used to assess proportionality:
(i) Rational connection
The limit must be rationally connected to the objective. The measure must not be “arbitrary, unfair or based on irrational considerations”. The government must demonstrate, on a balance of probabilities, a causal link between the impugned measure and the pressing and substantial objective (Butler, supra; Thomson Newspapers, supra; Sharpe, supra).
The causal relationship between the limit and the benefit sought should be proved, where possible, by scientific evidence showing that as a matter of repeated observation, one affects the other. However, when the causal relationship is not scientifically measurable (e.g., as discussed in Whatcott, the connection between limiting certain forms of speech and the objective to reduce or eliminate discrimination), less direct evidence based on reason or logic may be sufficient to establish a “reasonable apprehension of harm” (RJR-MacDonald, supra; Sharpe, supra; Butler, supra; Harper, supra; JTI-Macdonald, supra at paragraph 41; Saskatchewan (Human Rights Commission) v. Whatcott,  1 S.C.R. 467, at paragraph 132).
The Supreme Court has described the rational connection test as “not particularly onerous” (Health Services, supra, at paragraph 148; Little Sisters Book and Art Emporium supra, at paragraph 228; Trociuk v. British Columbia (Attorney General),  1 S.C.R. 835, at paragraph 34; JTI-MacDonald, supra, at paragraphs 40-41).The government need only show that it is “reasonable to suppose” that the limit or prohibition “may further the goal, not that it will do so” (Hutterian Brethren of Wilson Colony, supra, at paragraph 48; see also Mounted Police Association of Ontario v. Canada (Attorney General), supra, at paragraphs 143-144). However, in certain cases, a more stringent rational connection analysis has been applied (Benner v. Canada (Secretary of State),  1 S.C.R. 358, at paragraphs 95ff.).
This step of the test does not require all applications of an impugned law to be rationally connected to the legislative object; the Crown’s burden will be met as long as certain applications are rationally connected to the legislative object. (R. v. Appulonappa,  3 S.C.R. 754, at paragraph 80, citing R. v. Heywood,  3 S.C.R. 761, at page 803).
“Vagueness” may be considered at this stage but not overbreadth, which relates to minimal impairment (R. v. Morales,  3 S.C.R. 711; Nova Scotia Pharmaceutical, supra).
Where a legislatively-created presumption is at issue, this stage does not require that the presumption be internally rational in the sense that there is a logical connection between the presumed fact and the fact substituted by the presumption. It is sufficient to show that the presumption is a logical method of accomplishing the legislative objective, and the question of internal rationality is assessed under the third part of the proportionality test (R. v. Laba,  3 S.C.R. 965, at paragraphs 84 and 90).
(ii) Minimal impairment
The limit must impair the right or freedom “as little as possible” (Oakes, supra). However, Parliament cannot be held to a standard of perfection (R. v. Edwards Books and Art Ltd.,  2 S.C.R. 713). It is sufficient if the means adopted fall within a range of reasonable options. (Sharpe, supra; RJR-MacDonald, supra, at paragraph 160; Quebec (Attorney General) v. A,  1 S.C.R. 61). A government need not accept options which are less effective than the one chosen (JTI-Macdonald, supra). In assessing whether the alternative is less effective, the test is not whether it satisfies the objective to exactly the same extent or degree as the option selected by the government. Rather, the test is whether the government can demonstrate that among the range of reasonable alternatives available, there is no other less rights-impairing means of achieving the objective in a real and substantial manner (Hutterian Brethren, supra, at paragraph 55; Carter, supra, at paragraph 102, 118; R. v. K.R.J., supra, at paragraph 70).
The law must be carefully tailored to its objectives and must impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account (Sharpe, supra, at paragraphs 95-96; see also Nova Scotia Pharmaceutical, supra; R. v. Chaulk,  3 S.C.R. 1303; Trociuk v. B.C. (A.G.),  1 S.C.R. 835; RJR-MacDonald, supra, at paragraph 160). Provided there is evidence of tailoring and the law falls within a range of reasonable alternatives, the courts will generally show deference to the legislator (see below for a greater discussion of deference).
Regardless of the level of deference accorded by a court, the government must always be prepared to adduce evidence as to alternative measures considered and why they were rejected (Thomson Newspapers, supra, at paragraphs 118-119; RJR MacDonald, supra, at paragraph 160, Charkaoui v. Canada (Citizenship and Immigration),  1 S.C.R. 350, at paragraphs 69, 76, 86). Evidence of consultation with affected parties may help establish that a range of options was explored (Health Services, supra, paragraph 157).
Reasonable accommodation analysis undertaken when applying human rights legislation and proportionality analysis under section 1 of the Charter are conceptually distinct. Where the validity of a law is at stake, the appropriate approach is a section 1 Charter analysis based on the Oakes test. Where a government action or administrative practice is challenged, and the court is called upon to fashion an individual remedy under subsection 24(1) of the Charter rather than striking down a law under section 52 of the Constitution Act, 1982, the case law on the duty to accommodate may be helpful
“to explain the burden resulting from the minimal impairment test with respect to a particular individual.” (Hutterian Brethren, supra, clarifying the Court’s approach in Multani v. Commission scolaire Marguerite-Bourgeoys,  1 S.C.R. 256 and Eldridge, supra).
In determining whether a scheme is reasonably minimally impairing, courts may look to what other countries and provincial/territorial governments are doing (Carter, supra, at paragraphs 103-104; JTI-MacDonald, supra, at paragraph 138; Charkaoui, supra, at paragraphs 81-84; Lavoie, supra, at paragraphs 66-67). However, courts must be alive to the distinctive regimes and the constitutional responsibility of each province to legislate for its population, see: Québec (AG) v. A, supra, at paragraphs 442-43, and 449). In addition, courts may look to international treaties to which Canada is a party (; JTI-Macdonald, supra, at paragraph 10; Whatcott, supra, at paragraph 67).
(iii) Proportionality or final balancing
The final stage of Oakes allows for a broader assessment of whether the benefits of the impugned law in terms of the greater public good are worth the cost of the rights limitation (R. v. K.R.J., supra, at paragraph 77, citing Carter, supra, at paragraph 122). The first three stages of Oakes are anchored in an assessment of the law’s purpose. Only the fourth branch takes full account of the severity of the deleterious effects of a measure on individuals or groups (Hutterian Bretheren, supra, at paragraph 76).
“This inquiry focuses on the practical impact of the law. What benefits will the measure yield in terms of the collective good sought to be achieved? How important is the limitation on the right? When one is weighed against the other, is the limitation justified?” (JTI-MacDonald, supra, at paragraph 45; see also Lavoie, supra; Dagenais, supra). The effects of the limit must be proportional to the objective; the more serious the deleterious impact on the rights in question, the more important the objective must be. In addition, where the means will not fully or nearly fully achieve the objective, the salutary effects of the measure must outweigh the deleterious effects as measured against the values underlying the Charter (Dagenais, supra; Laba, supra; Thomson Newspapers, supra). See Oakes, supra, at page 136 (and cited earlier) for examples of values underlying the Charter.
It has been rare for a section 1 defence to fail at the final balancing stage; prior to the recent decision in R. v. K.R.J., supra, only one Supreme Court case has been lost on this basis (New Brunswick (Minister of Health and Community Services) v. G. (J.),  3 S.C.R. 46). Some past jurisprudence has, however, reaffirmed the importance of final balancing (JTI-MacDonald, supra, at paragraph 46; Hutterian Bretheren, supra, at paragraphs 72-78).
6. Context and deference
The Supreme Court has repeatedly emphasized that the specific factual and social context of a case plays a key role in justifying a limitation on a Charter right under section 1 (Thomson Newspapers, supra, at paragraph 87; RJR-MacDonald, supra, at paragraph 63).
Some factors support greater deference:
- Greater deference is appropriate where the legislature has greater institutional competence (M. v. H., supra, at paragraph 78). For example, where the limit arises from complex policy decisions involving the assessment of conflicting social science evidence, competing interests, demands on resources and the protection of vulnerable groups (Irwin Toy, supra, at page 993; JTI-MacDonald, supra, at paragraphs 41, 43; Carter, supra, at paragraph 98), where there is room to debate what will work and what will not (Whatcott, supra, at paragraph 78), or where the limit is a complex regulatory response to a difficult social problem (Hutterian Brethren, supra, at paragraphs 35, 37, 53; Carter, supra, at paragraph 97.
- It is also appropriate in “polycentric” situations: situations which involve a large number of interlocking and interacting interests and considerations (McKinney, supra, at page 229; Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982). Is the limit part of a complex web of rules, a change in any one of which would likely cause significant ramifications over a broad spectrum of social and economic policy (McKinney, supra)?
- Claims necessitating high government expenditures, e.g., social benefits (Eldridge, supra, at paragraph 85; Egan, supra) also can support greater deference. While financial considerations alone are usually insufficient to justify a Charter infringement (Schachter, supra, at page 709) they are relevant to determining the standard of deference (Reference re: Remuneration of Judges, supra at paragraph 283; Krock v. Canada,  F.C.J. No. 896 (F.C.A.), at paragraph 11).
Certain contexts do not support arguments for deference:
- judge-made common law rules (Swain, supra);
- government incrementalism – the notion that government ought to be accorded time to amend discriminatory legislation – is generally an inappropriate justification for Charter violations (Vriend, supra, at paragraph 122; M. v. H., supra, at paragraph 128);
The nature of certain rights makes deference inappropriate:
- In general, deference will be inappropriate the criminal law context, where “the government is the singular antagonist of the individual whose right has been infringed” rather than reconciling the claims of competing groups (Irwin Toy, supra, at 994; R. v. Laba, supra (paragraph 11(d)); Lavallee, Rackel and Heintz v. Canada (A.G.),  3 S.C.R. 209 (section 8)); however, when the prosecution of a regulatory offence is at issue, some deference is warranted (Wholesale Travel Group Inc. v. The Queen,  3 S.C.R. 154); R. v. Cooper  B.C.J. No. 986 (B.C.C.A.) (QL), paragraph 22 (leave to appeal to SCC denied  S.C.C.A. No. 321)).
- Deference is inappropriate in the case of infringements of section 3 as this Charter provision protects “core democratic rights” which “do not fall within a ‘range of acceptable alternatives’ among which Parliament may pick and choose at its discretion” (Sauvé, supra, at paragraph 13).
- The rights protected by section 7 are “basic to our conception of a free and democratic society” and violations of the principles of fundamental justice are therefore difficult to justify (Charkaoui, supra, at paragraph 66; Chaoulli v. Quebec (Attorney General),  1 S.C.R. 791, at paragraph 155). However, in two recent decisions, the Supreme Court has indicated that that there may be more room to justify an infringement of section 7 under section 1 where the government can point to an important public good or competing social interests that are themselves protected by the Charter as justification for the infringement (see Carter v Canada (Attorney General), supra, at paragraph 95 and Canada (Attorney General) v. Bedford,  3 S.C.R. 1101, at paragraphs 124-129). A recent appellate decision has applied a section 1 justification in the case of a section 7 infringement (R. v. Michaud, 2015 ONCA 585, leave to appeal to the SCC refused, 2016 CarswellOnt 7197)
- It is difficult to justify upholding provisions as reasonable where those provisions have been found to authorize unreasonable searches under section 8 (Canada (Attorney General) v. Federation of Law Societies of Canada,  1 S.C.R. 401, at paragraph 58, citing Lavallee, at paragraph 46).
- An infringement of judicial independence under paragraph 11(d) of the Charter
“can only be justified where there are ‘dire and exceptional financial emergencies caused by extraordinary circumstances such as the outbreak of war or imminent bankruptcy’”(Conférence des juges de paix magistrats du Québec v Quebec (Attorney General), 2016 SCC 39, at paragraph 97, citing Mackin v New Brunswick (Minister of Finance),  1 SCR 405, at paragraph 73).
- While it is, in principle, possible to justify an infringement of section 12 under section 1 of the Charter, the Supreme Court has indicated that such a justification would be difficult (R. v. Nur,  1 S.C.R. 773, at paragraph 111).
The fact that a law represents Parliament’s response to an SCC decision does not militate for or against deference (JTI-Macdonald, supra, at paragraph 11).
Contextual factors are generally considered throughout the section 1 analysis, at whichever step is appropriate in the circumstances, though particularly at the rational connection and minimal impairment stages (see, e.g., JTI-MacDonald, supra, at paragraphs 41, 43). However, note that there is a series of cases in which Bastarache J. considered, as a separate analysis preceding the Oakes test, a relatively formal series of four contextual factors intended to determine the appropriate level of deference in the case: the nature of the harm and the inability to measure it, the vulnerability of the group the government seeks to protect, the group’s subjective apprehension of the harm, and the nature of the infringed activity (Thomson Newspapers, supra; Harper, supra; R. v. Bryan,  1 S.C.R. 527). Although Bastarache J. wrote for the majority in both Thomson Newspapers and Harper, more recent decisions by the Court have not followed this approach.
7. Discretionary administrative decision-making
In terms of how to review discretionary administrative decisions for compliance with the Charter, the SCC recently developed a new test (Doré, supra; affirmed in Loyola High School v Quebec (Attorney General),  1 SCR 613). Because some aspects of the traditional Oakes analysis are “poorly suited” to the review of discretionary administrative decision-making (e.g., it is conceptually difficult to identify what the pressing and substantial objective of an administrative decision is, or who would have the burden of defining and defending it – see paragraphs 37-38), the Court adopted a two-step test that is nonetheless informed by aspects of the Oakes framework.
First, when exercising administrative discretion, a decision-maker must consider the relevant statutory objectives. Second, the decision-maker must consider how the “Charter value” at play can best be protected in light of the statutory objectives. This second step requires the decision-maker to balance the severity of the interference with the Charter protection against the statutory objectives (Doré, supra at paragraphs 55-57). The second step appears to be similar to the minimal impairment and overall proportionality / final balancing steps of the Oakes test.
On judicial review, the applicable standard of review will depend on an application of the principles in Dunsmuir v. New Brunswick,  1 S.C.R. 190 (Doré, supra, at paragraphs 43-45). Where reasonableness is the appropriate standard of review, the decision will be found to be reasonable if it reflects a proportionate balancing of the Charter protections at issue, in light of the nature of the decision, the statutory context and the particular facts (Doré, supra, at paragraph 58).
8. Evidence under section 1
The onus of proving a section 1 justification rests with the government, and the government should be prepared to adduce appropriate evidence. It should, therefore, engage in careful planning and record keeping. Given that the purpose of the limit must be the purpose at the time at which it is implemented (see discussion of “shifting purpose” above), the groundwork for a section 1 justification should be laid during the process of policy development. While the purpose should usually be obvious from the text of the legislation itself, it is often useful to have supporting evidence as well. This means that the development of policy must be carefully documented and prepared in a form that will later be appropriate for introduction as evidence in court. The documentation will also be useful to assist in the passage of the legislation through the House. In addition, there should be continued monitoring of the legislative initiative to ensure that the purpose remains important and to enable the supplementing of the original evidence. Although in some cases the pressing and substantial objective of the legislation and an impugned provision may be deduced from the legislation itself, in other cases evidence will be required (Hislop, supra, at paragraph 49; see also Bryan, supra, at paragraphs 32-34 (holding that some objectives can be accepted on the basis of an assertion)).
Similarly, the preparation of evidence as to rational connection and minimal impairment should begin at the policy development stage and continue throughout the life of the legislative provision. At the rational connection stage “some evidence” may suffice, provided logic and reason support the existence of a connection (Bryan, supra, at paragraph 41). As indicated above, to establish minimal impairment there should be evidence available of alternative measures that were considered and rejected, and why (Thomson Newspapers, supra, at paragraphs 118-119; RJR MacDonald, supra, at paragraphs 160 and 163; Charkaoui, supra, at paragraphs 69, 76, 86). Finally, evidence of proportionality may require continued monitoring to determine the actual negative and positive effects of the legislative provision.
In order for legislation to be effectively defended, it is important that the evidence be available in a form which can be made public.
The following types of evidence may be useful in mounting a section 1 justification:
- Hansard (R. v. K.R.J., supra; R. v. Morgentaler,  3 S.C.R. 463; see British Columbia Teachers’ Federation v. Attorney General of British Columbia, 2008 BCSC 1699, at paragraphs 42-64, for a review of the law on the use of legislative history in Charter litigation);
- Legislative preambles (Lucas, supra);
- Reports of a Parliamentary committee, commission of inquiry or law reform commission (Keegstra, supra; M. v. H., supra; Harper, supra);
- Ministerial speeches (Irwin Toy, supra);
- For regulations, the Regulatory Impact Analysis Statement (RIAS) from the Canada Gazette (Note: while this was not part of a section 1 analysis, in RJR-MacDonald, supra the Court noted that an RIAS could be used to establish government’s intent in enacting legislation);
- Social science studies and statistics (R. v. K.R.J., supra);
- Witness testimony (government personnel, experts, historians) (Bryan, supra; Newfoundland (Treasury Board) v Newfoundland and Labrador Assn. of Public and Private Employees (N.A.P.E.), supra);
- Opinion polls (Bryan, supra);
- Empirical research, where practicable (Mounted Police Association of Ontario v. Canada (Attorney General), supra, at paragraphs 144, 147).