Question

explain specifically why Oakes test did not save the s 8 presumption in the then Narcotic Control Act but did save the presumption in the then section 237 (now s 320.35) of the Criminal Code in the Whyte case.

Answer 1

Answer.

Oakes’ lawyer, Geoff Beasley, was quite junior when he took on the Oakes case. It was a remarkable win early in his career. The Oakes test is a judicial three-part test to determine which Canadian legislation is permitted to violate or limit constitutional rights under section 1 of the Charter. Government, whose legislation contravenes one or more specific rights, may argue that the legislation is “demonstrably justifiable” and that it should remain in force.

Let’s take the CheckStop program as an example. When police stop every driver who happens to be travelling along a road, on the face of it they are conducting “arbitrary detentions” in contravention of section 9 of the Charter of Rights.