Custom essays on “Oakes Test”

The Court’s application of the “Oakes Test” in the R.v. Keegstra
In the case R.v. Keegstra the “Oakes Test” was implemented to measure the balance between the personal freedom in the free and democratic society and some restrictions in the existing legislation. The legal propriety of “Oakes test” use in this case is in question. As was stated, the potential harm of drug trafficking for the society can be easily measured because drug is the material object. The potential harm of hate propaganda can’t be measured, and the most detailed evaluation can provide only the rough estimation. Thus, the proportion between the benefits of society and the rights of individual in this case can be interpreted in different ways and the outlines measure can vary. Correspondently, the active implementation of “Oakes Test” in the similar cases can signal an era of judicial activism. The absence of definite criteria makes the application of the “Oakes test” too flexible and enlarges the role of judges preconceptions. Analysis of the three important parts of the proportionality test confirms this assumption. The first part demands carefully demanded measures to achieve the objective of question; however, it is obvious from the previous reasoning that the measures can be unfair or arbitrary. The second part requires the minimal possible violation of the Right or Freedom in every case, and it is the least dependable part except the contradictive definition of minimal possible. The third part claims that it “must be a proportionality/balancing between the effects/consequences of the measure/limit and the objective being sought (i.e., the more severe the limit/infringement, the more important the objective must be). (R. v. Oakes)” This proportion is closely connected with the measures demanded in the first part, and because these measures can be unfair, the proportion is also questionable.
Trying to definite my persona; position regarding the “Oakes test” and its implementation to the “R.v. Keegstra” case I understood that I am the opponent of the monistic approach to the relationship between the guaranteed rights and freedom and the “reasonable limits”.

The monistic approach, according the Brian Slattery, supposes that “section 1 lays down a uniform standard that is “external” to the specific constitutional guarantees and only comes into play once an infringement of a substantive right has been found. (Slattery, 2009)” The contrary approach is the pluralistic one, and it foresees a range of different standards for judging limits. Both of these approaches can exist in the contemporary jurisprudence, but I am sure that the uniform standard is necessary in such cases. Returning to the case “R.v. Keegstra”, the singe standard can envisage the disparity of this case to the “Oakes test” because of the position of high school teacher. To my personal opinion, the constitutional right to express the feeling regarding to some groups of people should be limited in the schools. On some way the teaching under the chauvinist trends is the violation of student’s right to the freedom of political and religious creeds.
Thus, the certain standards for the “reasonable limits” should be defined apart from the “Oakes test”, which is inappropriate or insufficient in many cases.

References
“Is Canada Going to Pot?” by Mark Poland, July 2003. Presented at the University of Western Ontario’s Summer Conference for Student Legal Clinics.