The Increasing Irrelevance of Section 1 of the Charter
Bibliographic record
Abstract
This paper addresses the topic of judicial deference to legislative choices under section 1 of the Charter. More specifically, it asks, in what circumstances will the Supreme Court of Canada accord such deference and has the standard of justification under section 1 become diluted? We begin by examining how the Supreme Court of Canada has treated the Oakes test in the 15 years that have elapsed since its adoption in 1986. We then identify three different themes that have emerged from the Supreme Court‟s application of section 1 over this time. These themes are: first, that section 1 has been marginalized through the development of internal balancing tests in the definition of many of the substantive rights protected by the Charter — these internal tests consider factors that are very similar to those considered in a section 1 inquiry; second, that the original universality of the Oakes test has given way to context or right-specific adjudication whereby section 1 seems to be applied on an ad hoc basis; and third, that in recent years the Supreme Court of Canada has severely weakened the evidentiary requirement needed to justify an infringement of a right under section 1. We conclude by suggesting that the Oakes test be abandoned as a universal standard of justification, and that instead, a rights-specific approach be developed.
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How this classification was reachedexpand
Full frame distilled prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.
Codex and Gemma teacher scores by category
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.002 | 0.001 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.000 |
| Science and technology studies | 0.003 | 0.014 |
| Scholarly communication | 0.000 | 0.000 |
| Open science | 0.001 | 0.000 |
| Research integrity | 0.000 | 0.000 |
| Insufficient payload (model declined to judge) | 0.000 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; both teacher heads agree on what is shown here.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".