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Charter - Common Law. Doré v. Barreau du Québec
In Doré v. Barreau du Québec (SCC, 2024) the Supreme Court of Canada considers the non-application of Oakes s.1 test to challenges to the common law:[39] This Court has already recognized the difficulty of applying the Oakes framework beyond the context of reviewing a law or other rule of general application. This has been the case in applying Charter values to the common law, “where there is no specific enactment that can be examined in terms of objective, rational connection, least drastic means and proportionate effect” (Peter W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 2, at section 38.15). In R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63, for example, in assessing the common law rule relating to establishing intent under extreme intoxication, the Court held that no Oakes analysis was required when reviewing a common law rule for compliance with Charter values:If a new common law rule could be enunciated which would not interfere with an accused person’s right to have control over the conduct of his or her defence, I can see no conceptual problem with the Court’s simply enunciating such a rule to take the place of the old rule, without considering whether the old rule could nonetheless be upheld under s. 1 of the Charter. Given that the common law rule was fashioned by judges and not by Parliament or a legislature, judicial deference to elected bodies is not an issue. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken. [pp. 93-94, citing R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, at p. 978.] [40] In Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, this Court explicitly rejected the use of the s. 1 Oakes framework in developing the common law of defamation for two reasons. First, when interpreting a common law rule, there is no violation of a Charter right, but a conflict between principles, so “the balancing must be more flexible than the traditional s. 1 analysis”, with Charter values providing the guidelines for any modification to the common law (para. 97). Second, the Court noted that “the division of onus which normally operates in a Charter challenge” was not appropriate for private litigation under the common law, as the party seeking to change the common law should not be allowed to benefit from a reverse onus (para. 98). As a result, the Court went on to “consider the common law of defamation in light of the values underlying the Charter” (para. 99). And in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Court relied on Charter values in introducing the new defence of responsible communication on matters of public interest to the law of defamation, without engaging in an Oakes analysis.
[41] A further example is found in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156, where the Court dealt with the common law of secondary picketing. After concluding that freedom of expression was engaged, the Court did not embark on an Oakes analysis. Instead, it found that the appropriate question was “which approach [to regulating secondary picketing] best balances the interests at stake in a way that conforms to the fundamental values reflected in the Charter?” (para. 65).
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