1047:
577:
1012:" to imply that it would run over significant rights. In response, the wording was changed to the current version, to focus less on the importance of parliamentary government and more on justifiability of limits in free societies; the latter logic was more in line with rights developments around the world after
506:
The test is heavily founded in factual analysis so strict adherence is not always practiced. A degree of overlap is to be expected as there are some factors, such as vagueness, which are to be considered in multiple sections. If the legislation fails any of the above branches, it is unconstitutional.
617:
and the pregnant woman's health), and the process by which therapeutic abortions were granted. Dickson held that this process was unfair to pregnant women requiring therapeutic abortions, because committees meant to approve abortions were not formed or took too long. (The law afterwards failed the
626:
This step had been considered the most important of the steps and is the test that is failed the most. Typically, outright bans will be difficult to prove as minimally impairing. However, the means does not necessarily have to be the absolute least intrusive; this is indeed one of the steps of the
419:
The inquiry into whether the limitation was "prescribed by law" concerns the situation where the limitation was the result of some conduct of a government or its agents and whether the conduct was authorized by accessible and intelligible law. The Court articulated when the authorization would fail
988:
Strayer's report for the
Trudeau government advocated a number of ideas which were later incorporated into the Charter, including allowing for limits on rights. Such limits are now included in the Charter's limitation and notwithstanding clauses. Trudeau had become prime minister in 1968 and his
675:
right proportional to the objective? Does the benefit to be derived from the legislation outweigh the seriousness of the infringement? The legislation may not produce effects of such severity so as to make the impairment unjustifiable. Professor Hogg has argued that merely satisfying the first
896:
section 1 and the ECHR's articles 8 to 11. Section 36 requires that a "limitation is reasonable and justifiable in an open and democratic society", and that one should consider relevant factors such "the importance of the purpose of the limitation", "the relation between the limitation and its
1000:. An early version of the section guaranteed rights "subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government". This wording sparked debate over what government actions could be "generally accepted", with
918:
contains a section that has also been compared to section 1. Namely, section 9.1 states that when one invokes rights, it should be in a manner with respecting "democratic values, public order and the general well-being of the citizens of Québec" and that law may limit rights. In
871:, art. 18 of the European Convention limits all these specifically enumerated restrictions: "The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed". Perhaps the
429:, the Supreme Court found that the conduct of a border official in singling out homosexual from heterosexual reading materials was not authorized by any law. Likewise, police conduct that was not exercised under lawful authority will fail at this stage.
1120:
Bakan was supposedly influenced by US case law, which Morton and Knopff write should disappoint "Those who praise the section 1/Oakes Test as a distinctively
Canadian approach to rights litigation." However, Morton and Knopff's source is "anonymous".
709:, the Oakes test was too high a standard for equality rights, which was a complex issue since governments must distinguish between many groups in society, to create "sound social and economic legislation". He thus drew up the following two-step test:
654:
on signs limited free speech. While the law had a sufficient objective of protecting the French language, it was nevertheless unconstitutional because the legislature could have accepted a more benign alternative such as signs including smaller
984:
passed in 1960. This Bill of Rights did not have the force of the
Charter and was criticised as being weak. The Bill of Rights is similar in content to the Charter however it does include a protection for property that is not in the Charter.
716:
2. The equality right infringed in the process of pursuing that objective is examined, with its "importance" to those whose rights were limited evaluated; this evaluation is then balanced against a judgment as to whether the limit achieves the
568:. The government had chosen not to protect people in this predicament because the predicament was considered rare and obscure. The Court ruled this was an insufficient objective, because it was more of an explanation than an objective.
1111:
Dickson, it is said, was dissatisfied with the section 1 portion of a draft judgment. He gave the draft to Bakan and asked him to rework the reasonable limitations section. Sensing a long night, Bakan armed himself with a bottle of
1223:
For greater detail on the evolution of the test see Sujit
Choudhry, "So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1" (2006) 34 Supreme Court Law Review 501.
776:, some Supreme Court justices felt section 1 could not apply, although the majority employed section 1. Hogg believes section 1 can never apply; he has said section 12 "may be an absolute right. Perhaps it is the only one."
935:
contrasted this with the main difference between the two sections. Namely, the section 9.1 statements about how one should use rights does not mention legislatures, and thus the Quebec
Charter has relevance to
471:. Dickson for a unanimous Court found that David Oakes' rights had been violated because he had been presumed guilty. This violation was not justified under the second step of the two step process:
942:
600:, who used to argue the rational connection test was redundant, continued to argue the criterion was of little use. An example of the rational connection test being failed can be found in
749:
rights, the majority found section 1 would uphold this because criminal law presumes willing actions. As the dissent noted, this use of section 1 did not reflect the standard Oakes test.
1021:
663:
that the same test would apply to article 9.1 of the Quebec
Charter. Thus it is the reason why Quebec Charter jurisprudence can be of interest under section 1 of the Canadian Charter.)
596:
to
Parliament's objective. The means used must be carefully designed to achieve the objective. They must not be arbitrary, unfair, or based on irrational considerations. Professor
420:
for being too vague as "where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances".
1038:, which allows Canadians to move freely throughout the country. However, Burrage said the ban is protected by Section 1, which allows for reasonable exemptions to the charter.
565:
758:
746:
410:
guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
167:
463:(1985), Dickson asserted that limitations on rights must be motivated by an objective of sufficient importance. Moreover, the limit must be as small as possible. In
279:
267:
263:
251:
247:
243:
239:
235:
231:
227:
215:
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191:
187:
183:
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175:
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151:
139:
135:
131:
127:
123:
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552:(1998), it was found that a government action may also be invalidated at this stage if there is no objective at all, but rather just an excuse. Specifically, the
119:
115:
111:
99:
87:
83:
79:
67:
454:. The test is applied once the claimant has proven that one of the provisions of the Charter has been violated. The onus is on the Crown to pass the Oakes test.
613:
prohibition should be struck down partly because of a breach of health rights under section 7 and an irrational connection between the objective (protecting the
43:
882:
863:
ECHR: "No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society").
1031:
878:
single overriding limitation upon all of the enumerated rights is much more general limitation than the specific limitations in the
European Convention.
534:
according to the values of a free and democratic society. In practice, judges have recognized many objectives as sufficient, with the exception, since
901:
1456:
856:
ECHR: "subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society");
1211:
425:
904:, which affirms Aboriginal and treaty rights, is technically not part of the Charter and therefore is not subject to section 1. However, in
1353:
915:
303:
1382:
1368:
Weinrib, Lorraine
Eisenstat. "Trudeau and the Canadian Charter of Rights and Freedoms: A Question of Constitutional Maturation". In
671:
This step asks whether the objective is proportional to the effect of the law. Are the measures that are responsible for limiting the
697:
701:(1989), half of the justices declared that the Oakes test should not and cannot be the section 1 test used for all sections of the
684:
While the Oakes test has been the primary form of section 1 analysis used by
Supreme Court justices, it has not been the only one.
637:(1986), this was changed to "as little as is reasonably possible", thus allowing for more realistic expectations for governments.
1100:
case, "especially when one has to look at Section 1 ... is asking us to make essentially what used to be a political call."
321:
22:
1319:
Brice Dickson, "Human Rights in the 21st Century", Amnesty International Lecture, Queen's University, Belfast, 11 November 1999.
341:
rights. This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as
925:, it was found an analysis of limits under section 9.1 should be similar to that under section 1 of the Canadian Charter. In
1396:
440:
The primary test to determine if the purpose is demonstrably justifiable in a free and democratic society is known as the
1103:
At one point Morton and Knopff also criticize the growing power of Supreme Court clerks by alleging that Dickson's clerk
1017:
823:
721:
The rest of the justices, however, continued to apply the Oakes test; the Oakes test is still used in section 15 cases.
839:
996:
s development this section was intended to be the counter-balance to the court's ability to strike-out law with the
1265:
826:(ECHR), there are various limitations in the European Convention that are similar to the limitations clause in the
1259:
296:
1020:, however, did not find it a sufficiently strong enough recourse and instead insisted on the inclusion of the
1339:
1279:
1172:
927:
914:
case, provincial legislation can only limit Aboriginal rights if it has given them appropriate priority. The
910:
the Court developed a test to limit section 35 that Hogg has compared to the section 1 Oakes test. After the
849:
ECHR: "subject only to such limitations as are prescribed by law and are necessary in a democratic society");
786:
633:
1156:
886:
819:
766:
1397:"N.L.'s COVID-19 travel ban decision to be appealed, Canadian Civil Liberties Association says | CBC News"
900:
In Canada itself, the Oakes test has been comparable to the ways in which other rights have been limited.
1185:
970:
374:
When the government has limited an individual's right, there is an onus upon the Crown to show, on the
798:
rights of a specific individual. Instead, the decision-maker must proportionally balance between the
757:
It has been questioned whether the Oakes test, or any section 1 test at all, could ever be applied to
1028:
676:
three criteria of the Oakes test probably amounts to automatic satisfaction of the fourth criterion.
289:
1092:
allege judges have a greater role and more choice in shaping policy, and quote former Chief Justice
1140:
706:
375:
859:
limits on freedom of peaceable assembly and free association are accepted in Canada as well (art.
981:
967:
553:
459:
963:
35:
742:
1461:
8:
741:
was considered. The majority ruled that since automatism could be "easily feigned", the
543:
713:
1. The government action must have been made to achieve a "desirable social objective".
921:
803:
770:
738:
642:
561:
467:(1986), Dickson elaborated on the standard when one David Oakes was accused of selling
560:
law unconstitutional because it extended no protection to employees terminated due to
423:
Where there is no lawful basis for the conduct the limitation will certainly fail. In
1001:
932:
342:
542:
or antagonistic to fundamental freedoms, or objectives inconsistent with the proper
656:
548:
1372:. Edited by Andrew Cohen and JL Granatstein. Vintage Canada, 1998, pages 269–272.
631:, the step was phrased to require the limit as being "as little as possible". In
1077:
951:
651:
602:
1239:
2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, page 807.
845:
limits on freedom of thought and religion similar to Canadian limitations (art.
806:
by a judicially reviewing court is one of "reasonableness" (not "correctness").
394:, which means that it must have a justifiable purpose and must be proportional.
1073:
973:
539:
1080:
has been widened. Section 1 is part of the perceived problem. In their book
1450:
1093:
1089:
1055:
977:
451:
402:
Under the heading of "Guarantee of Rights and Freedoms", the section states:
1013:
980:
to research enshrining rights into the Constitution. Canada already had a
357:
1199:
937:
906:
352:
1435:
1205:
1104:
1085:
1051:
1009:
947:
597:
581:
367:
347:
325:
is the section that confirms that the rights listed in the Charter are
1383:"N.L. travel ban upheld in provincial Supreme Court ruling | CBC News"
794:
test should not apply to administrative law decisions that impact the
1116:
and set about constructing the now famous three prong balancing test.
1060:
733:
468:
446:
362:
507:
Otherwise the impugned law passes the Oakes test and remains valid.
500:
There must be proportionality between the infringement and objective
1225:
1046:
610:
522:
This step asks whether the Government's objective in limiting the
1107:
was the true author of the Oakes test. Morton and Knopff write,
809:
576:
557:
1370:
Trudeau's Shadow: The Life and Legacy of Pierre Elliott Trudeau
852:
limits on freedom of expression are accepted as in Canada (art.
834:
limits on privacy rights as are accepted as in Canada (Article
737:(1999), the issue of crime committed by a person suffering from
659:
words in addition to larger French words. (The Court decided in
1359:, Department of Justice Canada. URL accessed on March 18, 2006.
1113:
897:
purpose", and "less restrictive means to achieve the purpose".
647:
337:, as it legally allows the government to limit an individual's
1442:(2003 student ed.). Scarborough, Ontario: Thomson Canada.
614:
838:
ECHR: "except such as is in accordance with the law and is
745:
must rest with the defense; while this would be a limit on
588:
This step asks whether the legislation's limitation of the
1027:
In September 2020, Justice Donald Burrage ruled that the
584:
questions the usefulness of the rational connection test.
1036:
Section 6 of the Canadian Charter of Rights and Freedoms
687:
16:"Reasonable limits clause" of the Canadian constitution
802:
values in question and the statutory objectives. The
814:
This general limitations clause definitely makes the
517:
790:(2012), the Supreme Court of Canada found that the
640:The inquiry focuses on balance of alternatives. In
946:(1994), the Court also developed a test under the
1008:rights impotent. They even referred to it as a "
902:Section Thirty-five of the Constitution Act, 1982
889:in 1996 also contains a clause comparable to the
818:distinct from its United States counterpart, the
382:namely, that the law is attuned to the values of
1448:
606:(1988), in which Dickson held that a particular
538:, of objectives which are in and of themselves
444:, which takes its name from the essential case
810:Comparison with other human rights instruments
618:other two proportionality criteria as well).
426:Little Sisters Book and Art Emporium v Canada
297:
1411:The Charter Revolution & the Court Party
1082:The Charter Revolution & the Court Party
989:government implemented the Charter in 1982.
916:Quebec Charter of Human Rights and Freedoms
679:
1413:. Toronto: Broadview Press, 2000, page 52.
950:modelled after the Oakes test to consider
392:justified in a free and democratic society
304:
290:
698:Andrews v Law Society of British Columbia
1045:
962:At around the time of the centennial of
575:
1457:Canadian Charter of Rights and Freedoms
514:, the test has been modified slightly.
408:Canadian Charter of Rights and Freedoms
322:Canadian Charter of Rights and Freedoms
1449:
992:In the initial planning stages of the
943:Dagenais v Canadian Broadcasting Corp.
571:
1004:arguing that the clause would render
779:
621:
489:rationally connected to the objective
1434:
1354:"My Constitutional Summer of 1967",
650:laws requiring the exclusive use of
414:
1409:Morton, F. L., and Knopff, Rainer.
1072:has been criticized for increasing
824:European Convention on Human Rights
378:, firstly, that the limitation was
329:. The section is also known as the
13:
1422:Morton and Knopff, pages 111, 190.
822:. Regarding similarities with the
666:
518:Pressing and substantial objective
477:pressing and substantial objective
450:1 S.C.R. 103 which was written by
198:Minority Language Education Rights
14:
1473:
840:necessary in a democratic society
627:test that has been modified. In
1266:Ramsden v Peterborough (City of)
765:, which provides rights against
50:Guarantee of Rights and Freedoms
1428:
1416:
1403:
1389:
1375:
1362:
1346:
1331:
1322:
1313:
1304:
1295:
1286:
1272:
1260:RJR-MacDonald Inc v Canada (AG)
1251:
1242:
1229:
1217:
1191:
1178:
1162:
1146:
1130:
724:
1:
1340:Syndicat Northcrest v Amselem
1280:R v Edwards Books and Art Ltd
1237:Constitutional Law of Canada.
1124:
928:Syndicat Northcrest v Amselem
752:
695:In the early section 15 case
688:McIntyre's section 1 test in
634:R v Edwards Books and Art Ltd
432:
1440:Constitutional Law of Canada
1041:
887:Constitution of South Africa
767:cruel and unusual punishment
158:Official Languages of Canada
7:
1186:Irwin Toy Ltd v Quebec (AG)
390:; and secondly, that it is
10:
1478:
1356:Reflections on the Charter
957:
646:(1988), it was found that
1029:Newfoundland and Labrador
976:appointed law professor
830:. These limits include:
787:Doré v Barreau du Québec
680:Other Section 1 analyses
376:balance of probabilities
331:reasonable limits clause
982:Canadian Bill of Rights
460:R v Big M Drug Mart Ltd
397:
1118:
1065:
1022:notwithstanding clause
964:Canadian Confederation
585:
412:
36:Constitution Act, 1982
26:of Rights and Freedoms
1292:Hogg, pages 816-817.
1109:
1084:, Alberta politician
1049:
579:
532:substantial objective
526:protected right is a
452:Chief Justice Dickson
404:
1248:Hogg, pages 809–810.
867:However, unlike the
62:Fundamental Freedoms
1034:did indeed violate
594:rational connection
572:Rational connection
1352:Strayer, Barry L.
1197:See, for example,
1096:as stating that a
1076:, as the scope of
1066:
1002:civil libertarians
922:Ford v Quebec (AG)
885:entrenched in the
804:standard of review
780:Administrative law
643:Ford v Quebec (AG)
622:Minimal impairment
586:
562:sexual orientation
544:division of powers
495:minimal impairment
487:The means must be
481:The means must be
335:limitations clause
933:Michel Bastarache
415:Prescribed by law
380:prescribed by law
343:child pornography
314:
313:
74:Democratic Rights
1469:
1443:
1423:
1420:
1414:
1407:
1401:
1400:
1393:
1387:
1386:
1379:
1373:
1366:
1360:
1350:
1344:
1335:
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1326:
1320:
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1311:
1308:
1302:
1301:Hogg, page 1010.
1299:
1293:
1290:
1284:
1276:
1270:
1257:see for example
1255:
1249:
1246:
1240:
1235:Hogg, Peter W.
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1227:
1221:
1215:
1195:
1189:
1182:
1176:
1166:
1160:
1150:
1144:
1134:
1058:'s clerk during
971:Attorney General
952:publication bans
895:
877:
873:Canadian Charter
869:Canadian Charter
816:Canadian Charter
707:William McIntyre
564:, contradicting
549:Vriend v Alberta
475:There must be a
306:
299:
292:
24:Canadian Charter
19:
18:
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1363:
1351:
1347:
1337:Bastarache J.,
1336:
1332:
1327:
1323:
1318:
1314:
1310:Hogg, page 822.
1309:
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1273:
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1135:
1131:
1127:
1078:judicial review
1044:
960:
893:
875:
812:
782:
755:
743:burden of proof
729:
705:. For Justice
693:
682:
669:
667:Proportionality
624:
603:R v Morgentaler
574:
520:
438:
417:
400:
388:intelligibility
310:
146:Equality Rights
94:Mobility Rights
25:
17:
12:
11:
5:
1475:
1465:
1464:
1459:
1445:
1444:
1436:Hogg, Peter W.
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1402:
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1177:
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1145:
1128:
1126:
1123:
1088:and Professor
1074:judicial power
1043:
1040:
974:Pierre Trudeau
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956:
883:Bill of Rights
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857:
850:
843:
820:Bill of Rights
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808:
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728:
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540:discriminatory
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1094:Antonio Lamer
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1090:Rainer Knopff
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1056:Brian Dickson
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978:Barry Strayer
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608:Criminal Code
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554:Supreme Court
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455:
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384:accessibility
381:
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364:
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32:
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28:
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21:
20:
1439:
1418:
1410:
1405:
1391:
1377:
1369:
1364:
1355:
1348:
1343:, para. 152.
1338:
1333:
1324:
1315:
1306:
1297:
1288:
1278:
1274:
1264:
1258:
1253:
1244:
1236:
1231:
1219:
1210:
1204:
1198:
1193:
1184:
1180:
1173:1992 SCR 452
1168:
1164:
1153:R v Keegstra
1152:
1148:
1136:
1132:
1119:
1110:
1102:
1097:
1081:
1069:
1067:
1059:
1026:
1014:World War II
1005:
997:
993:
991:
987:
961:
941:
926:
920:
911:
905:
899:
890:
880:
872:
868:
866:
860:
853:
846:
835:
827:
815:
813:
799:
795:
791:
785:
783:
771:
762:
756:
732:
731:In the case
730:
725:
720:
702:
696:
694:
689:
683:
672:
670:
660:
641:
639:
632:
628:
625:
607:
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593:
592:right has a
589:
587:
547:
535:
531:
527:
523:
521:
511:
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494:
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483:proportional
482:
476:
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458:
456:
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441:
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405:
401:
391:
387:
383:
379:
373:
366:
358:R v Keegstra
356:
346:
338:
334:
330:
326:
320:
316:
315:
106:Legal Rights
55:
34:
33:Part of the
23:
1462:Legal tests
1263:(1994) and
1212:R v Broyles
1200:R v Therens
1157:1990 SCC 24
1141:2001 SCC 83
938:private law
907:R v Sparrow
772:R. v. Smith
726:R. v. Stone
353:hate speech
258:Application
210:Enforcement
1451:Categories
1429:References
1328:Hogg, 621.
1206:R v Hebert
1169:R v Butler
1137:R v Sharpe
1125:References
1105:Joel Bakan
1086:Ted Morton
1052:Joel Bakan
1050:Professor
1032:travel ban
1010:Mack Truck
948:common law
931:, Justice
759:section 12
753:Section 12
747:section 11
739:automatism
717:objective.
598:Peter Hogg
582:Peter Hogg
580:Professor
566:section 15
442:Oakes test
368:R v Butler
365:(e.g., in
355:(e.g., in
348:R v Sharpe
345:(e.g., in
327:guaranteed
1061:R v Oakes
1042:Criticism
1018:provinces
966:in 1967,
734:R v Stone
556:found an
497:of rights
469:narcotics
447:R v Oakes
363:obscenity
317:Section 1
1438:(2003).
994:Charter'
611:abortion
528:pressing
274:Citation
44:Preamble
1098:Charter
1070:Charter
1064:(1986).
1016:. The
1006:Charter
998:Charter
968:Liberal
958:History
912:Sparrow
891:Charter
828:Charter
800:Charter
796:Charter
763:Charter
761:of the
703:Charter
690:Andrews
673:Charter
657:English
590:Charter
558:Alberta
524:Charter
406:1 The
361:), and
339:Charter
319:of the
222:General
1283:(1986)
1269:(1993)
1209:, and
1114:sherry
894:'s
876:'s
774:(1987)
769:. In
652:French
648:Quebec
546:. In
510:Since
940:. In
861:11(2)
854:10(2)
792:Oakes
629:Oakes
615:fetus
536:Big M
512:Oakes
465:Oakes
434:Oakes
1068:The
1054:was
881:The
847:9(2)
836:8(2)
661:Ford
530:and
436:test
398:Text
386:and
168:16.1
842:");
784:In
457:In
371:).
351:),
333:or
1453::
1203:,
1171:,
1155:,
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1024:.
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216:24
204:23
192:22
190:,
188:21
186:,
184:20
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178:,
176:18
174:,
172:17
170:,
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140:14
138:,
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118:,
114:,
86:,
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1399:.
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1175:.
1159:.
1143:.
305:e
298:t
291:v
120:9
116:8
112:7
100:6
88:5
84:4
80:3
68:2
56:1
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