McKinney v Univ of Guelph [1990] 3 SCR 229 at 305: Impairment of rights

I turn then to the question whether mandatory retirement impairs the right to equality without discrimination on the basis of age "as little as possible". In undertaking this task, it is important again to remember that the ramifications of mandatory retirement on the organization of the workplace and its impact on society generally are not matters capable of precise measurement, and the effect of its removal by judicial fiat is even less certain. Decisions on such matters must inevitably be the product of a mix of conjecture, fragmentary knowledge, general experience and knowledge of the needs, aspirations and resources of society, and other components. They are decisions of a kind where those engaged in the political and legislative activities of Canadian democracy have evident advantages over members of the judicial branch, as Irwin Toy, supra, at pp. 993-94, has reminded us. This does not absolve the judiciary of its constitutional obligation to scrutinize legislative action to ensure reasonable compliance with constitutional standards, but it does import greater circumspection than in areas such as the criminal justice system where the courts' knowledge and understanding affords it a much higher degree of certainty.

However in Cotroni and Dagenais v Canadian Broadcasting Corp (1994) 120 DLR (4th) 12 the court employed a weak version of the Oakes test in criminal contexts.

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