Post Oakes Judicial Deference

When balancing the importance of different rights under the Charter, they must be weighed in the same manner.  One right should not be considered contextually, versus weighing one in a more abstract manner.

Some of the circumstances where more deference to the legislature would be warranted include (Irwin Toy):

• Address conflicting social science evidence as to the cause of a social problem
• Protect a socially vulnerable group
•  Balance the interest of various social groups competing for scarce resources
• The government has sought to balance competing rights

These are some of the factors that should be considered when determining whether judicial deference is appropriate in a particular case.


In Irwin Toy, the Court also stated that judicial deference was not appropriate in some circumstances, such as when there the state is acting as a singular antagonist, such as in criminal prosecutions.

In R. Moon’s article (2002), he outlines three categories of deference:
1. Judicial deference to relevant findings of fact by the legislature
2. Legislature’s accommodation of competing values or interests
3. Lowering standard of justification  under section