The Contextual Approach

Subsequent Development of the Oakes Test: Context

The emergence of the contextual approach to a Section 1 analysis is a major development post-Oakes.  Under this approach, a court will look at the weight of the right and its restriction in its context, as opposed to an abstract context. An understanding of the contextual approach can be brought out through a hypothetical challenge to a law, but before doing so, lets look at the details of the contextual approach. In determining a justification of a law under section 1, courts will look at what the restriction accomplishes in purpose against the value of the charter right.

An example.

The Province of New Brunswick has recently passed a law outlawing niqabs from being worn when voting. The Supreme Court has deemed that the law has violated sec 2a of the Charter, and has now begun an analysis as to whether the limitation is demonstrably justified.

The first question to be asked is whether it is a sufficient objective: to properly identify voters and prevent voting fraud. The court has been fairly relaxed under the first stage, and the majority of laws requiring justification have not failed at this point.


When looking at the final step of the Oakes test, the contextual approach requires the court to look at the impact of the law on the affected right. The abstract approach in this case would look at the impact simply on freedom of religion. The contextual approach in this case will be slightly more precise and frame the impact as one concerning the freedom of Muslim women to wear their religious clothing while exercising civic freedoms.

The contextual approach, as put forward by Wilson J.  in Edmonton Journal v Alberta, is that it recognizes that the freedom does not carry a constant, unchanging value. Rather, the context governs the importance. For example, both a restriction on banning nativity scenes on government property and banning scientology outright may be both restrictions on the freedom of religion, yet it is reasonable to suggest that same freedom is engaged on different levels of importance.



The Oakes test is further developed by the judgments in Edmonton Journal and Irwin Toy. Firstly, the Court added a contextual interpretation to the Oakes test and demonstrated greater judicial deference in using the Oakes test.