Oakes test PDF

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Oakes test

Section 1 Sample Question Suggested Answer The court has three general conclusions that it may come to when analyzing the constitutionality of Bill C-78. Option 1 The court may decide that the alleged infringement of the charter has not taken place and that the law is therefore constitutional and valid. Option 2 The court may decide that the law in question is in fact infringing on a charter right and the law could not be saved by section one. This would indicate the law failed at least one component of the Oakes test which is the legal standard used when applying section 1. Option 3 The court may decide that the law in question is in fact infringing on a charter right but that the law is saved by section 1 and is therefor still in force and effect. The law in question in order to be saved by section one indicates that it met the legal standard set out in the Oakes test which is detailed below. Part 1 - compelling state objective test -- the law would have to address an issue that is of significant concern to warrant the over-riding of a charter right. In this case, the need to fight global terrorism and the consequences of not doing so to the public safety of Canada and its citizens appears to meet his standard of part 1. Part 2 -- proportionality test--the law in question must be constructed in such a way so as to limit rights as little as possible and to as few people as possible. The law must be written in a way that rationally addresses the concern in part 1 and is not overreaching in its effect. In this case, the detention is limited for a maximum of 72 hours to those people who are reasonably suspected of being involved in a terrorist plot. This suspicion must be convincing enough to a judge who must issue the warrant. If the police authorities fail to convince the judge of the need to apprehend the suspect, then a warrant will not be issued....