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  • Writer's pictureThe Low Down

Short-lived infringement won’t defeat Oakes test

The author of a recent letter (“How governments justify violating Canadians' rights”, Low Down, Aug. 23 edition) appears to be fearful that the arguments used by lawyers in a case before the Superior Court of Ontario (Hillier vs. R) will influence all future cases involving government infringement of rights or freedoms spelled out in Canada's Constitution. I do not share his concern.


The Charter of Canadian Rights and Freedoms is the first part of the 1982 Constitution Act. Section 1 states, "[This Charter] 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." Thus, for example, a provincial government that restricted large public gatherings during the COVID-19 pandemic, if taken to court for doing so, would have to prove that its temporary limitation of freedom to peaceful assembly was reasonable and justifiable. It would have to pass a test established by the Supreme Court in 1986. Known as the Oakes Test, it works as follows:

First, the objective of the government's regulation (e.g., reducing transmission of a deadly virus) would have to be shown to be sufficiently important to warrant an infringement of the freedom stated in the Charter.


Second, the government would have to show that its regulation was reasonable and justified. This would mean demonstrating that the regulation was fair and carefully designed to achieve the objective. In addition, the government would have to show that the regulation impaired charter freedoms as little as possible.


Third, the government would have to demonstrate that the importance of the objective of the regulation outweighed any deleterious effects that it caused.


I am neither a lawyer nor a clairvoyant, but it seems to me highly unlikely that of the many pandemic-related cases currently in various courts across Canada, Mr. Hillier's will eventually find its way to the Supreme Court. And if I am wrong, and it does, it would seem highly unlikely that a case involving a province's short-lived infringement of freedom to peaceful assembly would lead to the demise of the Oakes test that has worked well for the past 37 years.


According to credible references in the Wikipedia page on Randy Hillier, he advocated harsh treatment of Indigenous land protesters in the past. He has denied climate change and disseminated misinformation about the pandemic and vaccines. He has shown himself to be disrespectful, racist and an insinuator of violence. He openly ignored most of Ontario's public safety regulations during the pandemic. As a significant player in the 2021 siege of Ottawa by the truckers' convoy, he received nine charges, including assault.

Michael Obrecht is a resident of Wakefield.

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