Sujit Choudry, "So What Is the Real Legacy of Oakes? Two Decades of Proprotionality Analysis Under the Canadian Charter's section 1"

Who should bear the risk of the empirical uncertainty is the crux question, based on the fact that public policy is debated on certainty?


The Thesis of the article is that Oakes created an enormous institutional dilemma for the Court, by setting up a conflict between the demand for definitive proof to support each stage of the section 1 analysis, and the reality of policy making under conditions of factual uncertainty.


If the government bears the onus of bringing evidence for each step of the analysis then they bear the risk of empirical uncertainty If they don't bring evidence, common sense will do, but this will remove the requirement that they need to prove that there is a requirement that reasonable limits be demonstrably justified. Courts have accepted the reasonable basis test as an in-between. But split in the circumstances on where it is applicable to use it in the absence of evidence.


In response to the question of who bears the risk of empirical uncertaintiy with respect to government activity that infringes Charter rights, the rights-claimant or the government, the answer has been, in effect, both. But even though the Court has agreed on this compromise, deep disagreements persist along its ragged edges. The Court has yet to work out under what circumstances it will use common sense, reason, or logic to bridge an absence of evidence, and to delineate when it will allow inferences to be drawn from inconclusive social science evidence. (Canadian Constitutional Law, 4th ed, p 790) Cites Thomson Newspapers Co. v. AG Canda as a basis for his argument.