Oakes Test Case Study

explanatory Essay
530 words
530 words

The reasoning used by the Supreme court judges are based by the Oakes test. The main and sufficient objective according to the Quebec Court of Appeal and the Commission scolaire was the school safety; however, the Supreme Court found that the limitation went beyond the initial and intended objective set out by the Supreme Court and the Commission scolaire (Canadian Human Rights Reporter, 203). Judges McLachlin, Bastarache, Binnie, Fish and Charron JJ. also said that prohibiting Gurbaj’s right to bear the kirpan has more deleterious effects than salutary because it infringes on his freedom of religion. In addition, factor such as school safety is already at risk since there are other objects in school that could be “used to commit violence acts …show more content…

mentioned that they believe that the decision of this case should be treated as an administrative law instead of a constitutional (Supreme Court of Canada). In addition, they mentioned that a decision or order by an administrative body (in this case the Commission scolaire) “cannot be equated with a ‘law’ within the meaning of section 1 of the Charter (Supreme Court of Canada, 2006). In other words, the Oakes test is best used in a constitutional law that are “prescribed by law” and should not be used to administrative tribunals (Supreme Court of Canada, 2006). In addition, since this case started with an administrative decision, it should have continued with the same approach (Supreme Court of Canada, 2006). However, judges still chose to use the Charter because the primary issue was whether the decision infringed freedom of religion (Gratton, 2008) and not if the “decision maker exceeded its statutory authority in making the decision” (Gratton, 2008). Deschamps and Abella JJ. explained that the reason that the constitutional analysis should apply to laws and not the application of law and since the issue was to determine whether the school board’s exercise of power is reasonable (Canadian Human Rights Reporter, 2013), they determined that the schools board made an unreasonable decision since they did not consider the right of freedom and accommodating safety measure (Supreme Court of Canada,

In this essay, the author

  • Opines that the supreme court's reasoning is logic and legal, but it has one flaw: the reasoning failed to compromise both constitutional and administrative law.
  • Explains deschamps and abella jj's view that the decision of this case should be treated as an administrative law instead of a constitutional.
  • Explains chief justice lebel's concurring opinion that the school board should have defined the rights invoked and how they relate to each other.
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