Edwards Brooks & Art Ltd v The Queen [1986] 2 S.C.R. 713: Government might be subject to a less exacting standard of proof and that the same questions need not be asked in every case

The Court suggests that the government might be subject to a less exacting standard of proof and that the same questions need not be asked in every case. In reference to the proportionality requirement of the Oakes test the Court stated that:

the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.

Woolman points out that in Canadian jurisprudence, a government act or legislation rarely fails the rationality test. However in Oakes the reverse onus provision requiring individuals in possession of drugs to show that they were not trafficking deemed rationally unrelated to the legislation’s objectives. R v Morgenthaler [1988] 1 SCR 30 held that the provisions of the Criminal Code which restricted abortion to cases in which the woman’s life was in danger were arbitrary, unfair and rationally unrelated to the legislation’s objective. Andrews v Law Society of British Columbia [1989] 1 SCR 143 held that citizenship requirements for bar membership were unrelated to the objective of ensuring that lawyers carried out their duties in an honourable and conscientious fashion.

Examples of the Canadian Court finding government conduct disproportionate to the alleged benefits include: laws protecting the confidentiality of matrimonial proceedings in R v Smith [1987] 1 SCR 1045; by-pass and notice provisions for abortions in Morgenthaler ; citizenship requirements for bar membership in Andrews; restrictions on advertising by dentists in Rocket v Royal College of Dental Surgeons [1990] 2 SCR 143. Examples of the Court finding measures proportionate to the benefits include steps taken to prevent drunk-driving in R v Hufsky [1988] 1 SCR 621, restriction on publication of sex-assault victim’s names in Canadian Newspapers Co v Canada (Attorney General) [1988] 2 SCR 122; prohibition of picketing outside courthouses in BCGEU v British Columbia (Attorney General) [1988] 2 SCR 214.

Woolman points that the second part of the Oakes proportionality test ‘invites significant judicial intervention into legislative policy-making, a task for which the courts are clearly not suited. The Canadian Court has since adopted a more flexible formula to the minimal impairment test.

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