The Privilege of Driving: Alberta v Hutterian Brethren of Wilson Colony and the Application of the Oakes Test

Abstract

This paper examines the Canadian Supreme Court case of Alberta v Hutterian Brethren of Wilson Colony (Alberta v Hutterian). In this context, the application of the test established in R v Oakes (Oakes) and the place of judicial review with particular regard to freedom of religion cases are analysed. The application by this Court of the Oakes test demonstrates the inherent uncertainty and problematic subjectiveness of the test. The circumstances are analysed in a New Zealand context to outline the options available to the New Zealand courts if faced with a similar situation. The paper concludes that the majority in Alberta v Hutterian applied the Oakes test incorrectly. Further, not withstanding the fact that the legality of judicial review is questionable in such cases, the Oakes test requires urgent clarification, or another approach to limiting rights needs to be adapted by the courts. Such a change would be a welcome development in the New Zealand context.