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Part V Rights and Freedoms, A Litigating and Interpreting the Charter, Ch.31 The Justification of Rights Violations: Section 1 of the Charter

Charles-Maxime Panaccio

From: The Oxford Handbook of the Canadian Constitution

Edited By: Peter Oliver, Patrick Macklem, Nathalie Des Rosiers

Content type:
Book content
Product:
Oxford Constitutions of the World [OCW]
Series:
Oxford Handbooks
Published in print:
19 October 2017
ISBN:
9780190664817

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

(p. 657) Chapter 31  The Justification of Rights Violations

Section 1 of the Charter

1.  Introduction

Section 1 of the Canadian Charter of Rights and Freedoms states that the Charter ‘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’. It thus simultaneously guarantees the rights set out in the following provisions and acknowledges that they can be subject to limits if these are prescribed by law, reasonable, and justified in a free and democratic society.

Rights, reason, justification, liberal-democratic political morality … these are fundamental, controversial notions. Do constitutional rights have special moral force? When can their infringement be reasonable and justified in a free and democratic society? To what extent can non-elected judges cast aside decisions made by other branches of government? These questions constantly haunt the application of section 1. Moreover, they have to be addressed through a methodology suitable for public understanding and judicial application.

Charter decision-making is an exercise in moral reasoning. It aims at determining whether the state has acted in a morally permissible way. Moral reasoning has substantive (moral) and formal (reasoning) aspects. The Supreme Court of Canada has structured the application of section 1 around a proportionality framework. Proportionality is a formal notion. In moral reasoning contexts, it essentially requires that action be the (p. 658) source of more moral good than bad. The political morality presupposed by the proportionality framework is a non-specific liberal-democratic political morality. We will see that although the Supreme Court of Canada had initially flirted with the view that rights reflect special moral considerations, it has not retained it. It has also been mindful of the limited institutional legitimacy of the judiciary.

Moral reasoning is not deductive reasoning. It cannot be encapsulated by lists of specific rules of absolute validity. It can be structured around formal and substantive principles, but will always leave room for weighing and pondering in practice. Section 1’s proportionality framework properly amalgamates these elements of form, substance, and pragmatism.

2.  Genesis

The Charter became part of the Canadian Constitution in 1982 as a result of the process of constitutional ‘patriation’. Patriation was the culmination of two decades of constitutional discussions which featured, among many other topics, a debate over constitutional rights judicial review i.e. the judicial power to strike down state action, including parliamentary legislation, that affects certain fundamental constitutional rights.1 In that debate, those in favor of judicial review relied on ideals of fundamental human rights, arguing that these had to be protected against the tyranny of majorities, and extolled the judicial virtues of independence, impartiality, and rationality.2 Those (p. 659) who were against it praised parliamentary democracy and emphasized the limited legitimacy of the judicial branch.3

Similar arguments reverberated into the discussions surrounding the limitations clause (as well as into the application of section 1, as we shall see): those in favor of judicial review preferred a limitations clause with restrictive language (or no limitations clause at all),4 whereas those suspicious of it (most provinces) favored a more permissive one.5 One version elaborated during the 1980 constitutional negotiations used very forgiving language, stating that rights could be subject to ‘reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government’.6 This formula, suggesting that whatever had been decided by parliamentary legislatures or was in line with conventional social morality would be an appropriate limit to constitutional rights, attracted withering criticism.7 It was soon replaced by the more demanding language of section 1, signalling a shift from a conventional-majoritarian analysis to an ideal-justificatory one.

(p. 660) 3.  Interpretation

The basic elements of section 1’s proportionality framework were established by the Supreme Court in 1986 in the Oakes case.8 Charter reasoning usually proceeds in two distinct steps: first, it must be determined whether a rights-provision has been infringed; if that analysis yields a positive answer, it must then be determined, pursuant to section 1, whether the infringement constitutes a reasonable, justified limit in a free and democratic society.9 From the first step to the second, the onus of ‘demonstration’ shifts from the plaintiff to the government.10

A.  Proportionality

The proportionality framework is a framework for moral reasoning. Moral reasoning is a kind of practical reasoning. Practical reasoning is reasoning about how one ought to act, hence moral reasoning is reasoning about how one ought to morally act. The proportionality framework helps determine whether it was morally permissible for the state to infringe a Charter right in the way that it has. The infringement of a Charter-protected right is taken to signal morally negative features of the state’s action, and the proportionality framework helps determine whether these morally negative features are outweighed by morally positive ones. It thus has a ‘calculative’, consequentialist aspect, but it is perfectly capable of incorporating less calculative, ‘deontological’, moral demands.

The proportionality analysis begins with an examination of the ends or objectives underlying the state’s action. These must be sufficiently important—‘pressing and substantial’ said Chief Justice Dickson in Oakes. It then turns to an examination of the rationality and proportionality of the means and effects of the state’s action. The state must satisfy both the ends and means/effects parts of the analysis, as well as every step of the means/effects part.

(i)  Good Ends

To be justified, the state’s action had to be motivated by acceptable ends. If state organs generally navigate morally suitable waters, this requirement should be met in most cases. Nevertheless, in some circumstances, it may prove impossible for the state to point to morally acceptable objectives. For instance, it may be impossible to conjure satisfactory ends to explain why an anti-discrimination statute (p. 661) does not protect the LGBT community.11 Even more unusually, some motives for action are prohibited by particular constitutional rights doctrines. For example, if Sunday-as-a-day-of-rest legislation is being scrutinized under section 1 because it infringes the right to freedom of religion, it becomes crucial to determine whether it was adopted for religious or secular motives, because the former are strictly prohibited by the Canadian equivalent of the American no-establishment doctrine.12

(ii)  Proportional Means/Effects

Even if it is found that the state’s action was motivated by morally acceptable objectives, it may still not be justified. The means and effects of the state’s action must also be rational and proportional. This assessment has three different branches: (1) ‘Rational Connection’, (2) ‘Minimal Impairment’ and (3) ‘General Proportionality’.

(a)  Rational Connection

‘Rational Connection’ requires that the state measures be minimally capable of achieving the valid objective(s) isolated in the ends part of the analysis.13 It is a test of instrumental rationality, looking only at the relationship between means and ends, to the exclusion of side-effects and alternative options.14 It is usually easily met by the state because only absurd actions would fail it. Rational Connection could thus be described, to borrow the colourful words of Felix Cohen, as asking courts to act as ‘lunacy commissions sitting in judgment upon the mental capacity of legislators’.15 It is indeed difficult to imagine state action which is thoroughly incapable of achieving its underlying objectives. Some (p. 662) state actions may sabotage their own objectives to some extent,16 but they are practically never completely instrumentally irrational or utterly self-defeating.17 One would have to imagine an absurd situation, say a legislature banning criticism of the government in order to prevent the extinction of the beaver or some kind of ‘destroying the city in order to save it’ argument.

(b)  Minimal Impairment

State measures should not only be rationally connected to their underlying objectives, they should also impair the infringed right or freedom as little as possible. This is the ‘Minimal Impairment’ component of the effects analysis. It is a prescription to minimize the (negative) ‘rights-affecting’ side-effects of action: if the state could have achieved its objectives without affecting rights to the same extent, it should have done so. This requires that less rights-impairing alternatives be considered.

Strictly construed, Minimal Impairment implies that the attainment of the state’s objectives is not, to any extent, put into question; it should be satisfied if a less impairing solution were to jeopardize the realization of the objectives to whatever extent. Thus, strictly construed, it is not a full-fledged assessment of proportionality, involving a full evaluation of moral ‘positives’ and ‘negatives’.18 What is to be determined is whether the same positives could be achieved with less of the negative. Therefore, if this strict construal were to be dutifully applied, it would not be overly difficult to satisfy. And if it failed to be satisfied, it would amount to a gentle slap on the wrist of the state, suggesting that it ought to go back to the drawing board and pursue the very same aims through a path more respectful of rights. In practice, however, a more general assessment of proportionality has often been smuggled into the Minimal Impairment analysis.19

(p. 663) (c)  General Proportionality

Even if the state meets the Rational Connection and Minimal Impairment components, for a rule to be justified the effects of the measure on the rights and freedoms must also, overall, be proportional to the objective sought and potential benefits.20 We can call this last component of the effects analysis ‘General Proportionality’. This, it must be noted, is the only requirement which consists in an overall balancing of the negative and positive moral aspects of state action. This was aptly picked up by Bastarache J. in Thomson Newspapers. He said:

The third stage of the proportionality analysis performs a fundamentally distinct role. Determining whether there is a pressing and substantial objective behind the provision under scrutiny necessarily occurs in the abstract, before the specific nature of the legislation and its impact on the Charter right has been analysed. Of course, ascertaining that objective requires a consideration of what the provision actually does, as well as documentary evidence as to what the legislator thought it was doing. Moreover, the relevant purpose is the purpose specific to the provision which limits the Charter right. But the purpose must, nevertheless, be articulated abstractly because a purpose is a goal or outcome which, by definition, may be achieved in different ways. Before the specific effects of the measure in question have been scrutinized and concretized through the first two steps of the proportionality analysis, it is often difficult to assess, in the abstract, the possible impact on Charter freedoms of a laudable legislative objective. The focus of the first and second steps of the proportionality analysis is not the relationship between the measures and the Charter right in question, but rather the relationship between the ends of the legislation and the means employed. Although the minimal impairment stage of the proportionality test necessarily takes into account the extent to which a Charter value is infringed, the ultimate standard is whether the Charter right is impaired as little as possible given the validity of the legislative purpose. The third stage of the proportionality analysis provides an opportunity to assess, in light of the practical and contextual details which are elucidated in the first and second stages, whether the benefits which accrue from the limitation are proportional to its deleterious effects as measured by the values underlying the Charter. As Professor Jamie Cameron states (“The Past, Present, and Future of Expressive Freedom Under the Charter” (1997), 35 Osgoode Hall L.J. 1, at p. 66):

… this branch of the section 1 analysis asks an important question. By assessing the proportionality of its deleterious effects and salutary benefits it considers, in direct and explicit terms, whether the consequences of the violation are too great when measured against the benefits that may be achieved. As such, it is the only part (p. 664) of the current analysis to acknowledge the harm or cost of justifiable limits: that a constitutional right has been violated.21

If every step of the proportionality of means/effects analysis were strictly applied, truly controversial cases should almost always be settled at this very last stage. Yet, the reality is that General Proportionality is rarely used by itself to strike down legislation.22 Courts seem to be more comfortable when they appear to be reaching their decisions on less controversial grounds, such as Rational Connection and Minimal Impairment. This may have rhetorical benefits, but it comes at the price of a certain kind of deception.

Be that as it may, the proportionality framework unveiled in Oakes and refined in later cases quite carefully manages the intrusion of the judiciary into the affairs of the other branches of government. As it progresses, the analysis becomes more and more fine-grained. It is only at the very last stage that it truly requires an all-encompassing exercise in moral balancing.

B.  Taking Rights More or Less Seriously

In Oakes, Chief Justice Dickson had emphasized that the section 1 inquiry must be premised on an understanding that rights and freedoms which are part of the supreme law of Canada had been violated.23 He added that the state had the burden of showing that a limit was justified according to a rigorous ‘balance of probabilities’ standard. And recall that he had insisted that the state’s objective(s) had to be ‘pressing and substantial’ for a limit to be justified.

A few months earlier, in Singh, Justice Wilson had expressed doubts that ‘utilitarian considerations’ (in that case administrative convenience in the context of decisions (p. 665) concerning refugee status) could ground the justification for a limitation on Charter rights. She said:

Certainly the guarantees of the Charter would be illusory if they could be ignored because it was administratively convenient to do so. No doubt considerable time and money can be saved by adopting administrative procedures which ignore the principles of fundamental justice but such an argument, in my view, misses the point of the exercise under s. 1.24

These statements are reminiscent of Ronald Dworkin’s views on fundamental rights—particularly influential in the 1980s—according to which, generally, rights may not be outweighed by general social goals. Put differently, in general, fundamental rights have a certain threshold weight and may only be defeated by goals of special urgency, not by the routine goals of political administration.25

But the Supreme Court’s statements of rights-enthusiasm were almost immediately qualified. At the end of his discussion of proportionality in Oakes, Chief Justice Dickson had cautioned that the inquiry into effects must be far reaching, as some limits to rights will be more serious than others ‘in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society’.26 He had also left some space for flexibility by suggesting that the standard of demonstration for justification would be ‘commensurate with the occasion’.27

Furthermore, in Edwards Books, a decision released less than a year after Oakes, Chief Justice Dickson and Justice La Forest reiterated that the nature of the proportionality test would vary with the circumstances, adding that its application should be context-sensitive and that rigid and inflexible standards should be avoided.28 Justice La Forest also insisted that the business of government is practical rather than theoretical, often requiring a complex exercise of adjudication between conflicting interests.29 Such admonitions in favor of flexibility and pragmatism were repeated in several other cases. For instance, in Keegstra, Chief Justice Dickson said:

The analytical framework of Oakes has been continually reaffirmed by this Court, yet it is dangerously misleading to conceive of s. 1 as a rigid and technical provision, offering nothing more than a last chance for the state to justify incursions into the realm of fundamental rights. From a crudely practical standpoint, Charter litigants sometimes may perceive s. 1 in this manner, but in the body of our nation’s (p. 666) constitutional law it plays an immeasurably richer role, one of great magnitude and sophistication.30

The demand for ‘pressing and substantial’ objectives was also relaxed. In 1989, in Andrews, Justice MacIntyre stated that it may be ‘too stringent for application in all cases [and] would frequently deny the community-at-large the benefits associated with sound social and economic legislation’. Hence, the question should be ‘whether the limitation represents a legitimate exercise of the legislative power for the attainment of a desirable social objective’.31

Minimal Impairment, for its part, has generally been interpreted as determining whether there was no reasonable alternative that would have allowed the state to achieve its objective with fewer detrimental rights-related effects. In other words, the question became ‘has the state made a “genuine and serious attempt to minimize adverse effects” and struck a legitimate compromise’?32 Finally, the opposition between rights and collective ‘utilitarian’ considerations was re-visited and softened in later cases.33 Hence, in general orientation, the Court quickly moved away from a ‘Taking Rights Seriously’ ethos and embraced a less demanding discourse of reasonableness.

4.  Discussion

A.  Form and Substance

The ‘formalism’ of s. 1’s proportionality framework has regularly been under attack.34 The characterization is quite accurate: proportionality is, at base, a formal, mathematical concept. Proportionality is not a value—it is a relation between values. It thus requires (p. 667) independent values to be put to work. In a context of practical-moral reasoning, it prescribes that an action be morally right, which often means that it is the source of more good than bad. But proportionality is devoid of moral substance. Substance must be sought in substantial principles of political morality.35

In Oakes, Chief Justice Dickson did say that ‘[t]he Court must be guided by the values and principles essential to a free and democratic society’ which embody

respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.36

Hence, Oakes contained both the formal idea of proportionality and a snapshot of substantive values essential to a free and democratic society. Should something more be expected? Can this framework be significantly improved upon?37 This is doubtful. It may be tempting to blame the results of cases on proportionality, but precisely because proportionality is formal, it does not condition results. The better suggestion would be to say that judges are substantially wrong, but then that displaces the discussion to substantive political morality, and those who disagree have to argue for their views on that particular terrain.38 However, in the practical context of public decision-making, abstract theories of political morality are of little help. The most that can be done is to provide a general survey of important, recurring considerations, as the Supreme Court of Canada has done.

(p. 668) B.  Putting Rights in Their Place

It has been suggested earlier that some parts of Chief Justice Dickson’s reasons in Oakes can be read as expressing a ‘Taking Rights Seriously’ view of constitutional rights. This requires further discussion.

First, recall that the Chief Justice had claimed that all infringements of Charter rights were violations. However, moral philosophers tend to define violations of moral rights as unjustified infringements. Mere infringements may or may not be justified all things considered. If they are not, they become violations. If they are, they remain benign infringements. Thus, by conceiving all infringements as violations, Chief Justice Dickson was using a term (‘violation’) that tends to be used only at the very end of an analysis of justification all things considered. But he was using it to describe the situation before the application of section 1, under which justification all things considered is examined.39

The philosophical defenders of the ‘Taking Rights Seriously’ perspective conceive rights as protecting morally basic attributes of persons such as autonomy, reason, or dignity. This explains why they see these rights as being quasi-absolute or very weighty and why they consider infringements to be justified only in exceptional circumstances.40 But this is perhaps not the most perspicacious perspective to adopt in regards to constitutional rights. In practice, constitutional rights-infringements certainly do not map on violations of ‘dignity’ or ‘autonomy’. Most generally, a right is infringed when state action can be described as interfering with protected interests. This generates a moral concern and triggers an analysis of whether the action is justified all things considered. But some interferences with rights-protected interests are more morally concerning (p. 669) than others (contrast, for instance, political and commercial expression). And on the other side of the balance, important rights-protected interests and other weighty moral considerations may be protected by state action. Hence, calling for a ‘stringent’ justificatory threshold based on the supposed specialness of rights seems inapposite in the Charter context.41 Each case of infringement and purported justification must be examined on its own merits. Indeed, this was recognized by Chief Justice Dickson in Oakes when he said that some limits to rights are more serious than others ‘in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society’.42

Oakes had also established that the state bears the burden of demonstrating that an infringement is justified. This may be taken as signalling the Taking Rights Seriously view, but the use of the notion of ‘burden’ is somewhat awkward in this context. In law, burdens are usually burdens of proof, and burdens of proof relate to material facts, not normative justification.43 Now, the notion of ‘burden’ may have a certain place in normative argumentation when the balance of arguments usually favors a particular position and there remains uncertainty after exhaustive consideration of the whole situation.44 But in the Charter context, as discussed in the previous paragraph, the primary determination that a right has been infringed does not strongly and invariably suggest the conclusion that the balance of arguments weighs on the side of the plaintiff. More importantly, at that stage, the whole situation has not been analysed since this is just what remains to be done under section 1! Finally, even when there remains uncertainty following the application of section 1, it is far from clear that it should be resolved in favor of rights. In fact, considerations of institutional legitimacy point in the opposite direction, and deference to the other branches of government may well be appropriate.45

C.  Institutional Self-Awareness

As mentioned before, the pre-patriation debate over the legitimacy of constitutional rights judicial review echoed into the application of section 1. Considerations of institutional legitimacy are an important element in the explanation of the Supreme Court’s (p. 670) move toward a standard of reasonableness.46 Starting in Edwards Books and in many cases thereafter, the relatively limited legitimacy and institutional capacities of courts were put forward as reasons to leave the other branches of government a ‘margin of appreciation’.47 In fact, very early on in the Charter era, in the Operation Dismantle case, Justice Wilson had clearly stated that such considerations were to be incorporated in the application of section 1. She said:

Section 1 […] embodies through its reference to a free and democratic society the essential features of our constitution including the separation of powers, responsible government and the rule of law. It obviates the need for a “political questions” doctrine and permits the Court to deal with what might be termed “prudential” considerations in a principled way without renouncing its constitutional and mandated responsibility for judicial review.48

Justice Binnie reiterated the point almost 20 years later in Newfoundland (Treasury Board) v. N.A.P.E., saying:

… it is nevertheless clear that there is built into the Oakes test a healthy respect for legislative choices in areas of economic and social policy.

[…]

the s. 1 test set out in Oakes and the rest of our voluminous s. 1 jurisprudence already provides the proper framework in which to consider what the doctrine of separation of powers requires in particular situations […]49

5.  Conclusion

In Oakes and the following case law, the Supreme Court of Canada has relied on the language of section 1 to develop a general ‘proportionality’ framework aimed at determining whether a right-infringement was justified in a free and democratic society. That (p. 671) framework has become influential in other jurisdictions.50 Proportionality is formal and calculative, but it applies within liberal democratic parameters and is fully capable of incorporating considerations associated with fundamental human rights. It has also consistently been mindful of institutional concerns.

The philosopher Kurt Baier said:

Moral deliberation, like all kinds of deliberation, is a sort of calculus, a method of reckoning, of working out something—which course of action is supported by the best moral reasons. All that can be expected by moral philosophers is the clarification of the calculus, the statement of the general rules, and the methods of using them in particular calculations. It cannot be expected that philosophers should answer all moral questions or problems beforehand, or that, after the elucidation of this calculus, its users will find solving their problems much easier, or even that all problems will now be capable of solution. The procedure is much like weighing. One can only explain the weighing machine and check the weights: the weighing itself has still to be done on each particular occasion.51

‘Moral deliberation’ could easily be replaced by ‘section 1 deliberation’ in that quote. Section 1 reasoning is practical-moral reasoning. Inevitably, it has deployed itself through a flexible framework, not a strict recipe, leaving space for judgment, controversy, and disagreement.

Bibliography

  • Secondary sources

  • Grimm, Dieter. ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57 UTLJ 383
  • Sweet, Alec Stone and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Colum. J. Transnat’l L. 72
  • Tremblay, Luc B. and Grégoire C.N. Webber (eds), La limitation des droits de la Charte: essais critiques sur l’arrêt R. c. Oakes/The limitation of Charter Rights: Critical Essays on R. v. Oakes (Thémis, 2009)
  • Webber, Grégoire C.N., The Negotiable Constitution: On the Limitation of Rights (Cambridge, 2009)
  • Weinrib, Jacob. Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law (Cambridge, 2016), c. 7 ‘The Moral Structure of Proportionality’

  • Cases

  • R. v Oakes [1986] 1 SCR 103
  • R v Edwards Books and Art Ltd [1986] 2 SCR 713
  • (p. 672) R v Keegstra [1990] 3 SCR 697
  • RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199
  • Sauvé v Canada (Chief Electoral Officer), [2002] 3 SCR 519
  • Newfoundland (Treasury Board) v N.A.P.E., [2004] 3 SCR 381
  • Alberta v Hutterian Bretheren of Wilson Colony [2009] 2 SCR 567

Footnotes:

*  Associate Professor, Civil Law Section, Faculty of Law, University of Ottawa.

1  For good journalistic accounts of the events that have surrounded the patriation of the Canadian Constitution and, more particularly, negotiations over the Charter of Rights, see: Robert Sheppard and Michael Valpy, The National Deal, The Fight for a Canadian Constitution (Fleet Books, 1982), esp ch 7; Roy Romanow, John Whyte and Howard Leeson, Canada … Notwithstanding: The Making of the Constitution, 1976–1982 (Methuen, 1984), esp. ch 8. See also the chapter by Janet Hiebert in this Handbook.

2  E.g., Pierre Elliott Trudeau, ‘A Constitutional Declaration of Rights’ in P.E. Trudeau, Federalism and the French Canadians (MacMillan, 1968) 52, 56; Honourable Pierre Elliott Trudeau Minister of Justice, A Canadian Charter of Human Rights (Queen’s Printer, 1968); The Right Honourable Pierre Elliott Trudeau Prime Minister of Canada, The Constitution and the People of Canada: An Approach to the Objectives of Confederation, the Rights of People and the Institutions of Government (The Queen’s Printer 1969); Canada, Parliament, Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, “Final Report” (16 March 1972), 18–19; Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 30th Parl. 3d sess., Nos. 1-20 (1978), 12:12 (Prof. W. Tarnopolsky, 12 September 1978), 20:10 (Report to Parliament, 10 October 1980); Canada, Parliament, Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 32 Parl.1st sess., No 13, 13:5, 13:21, 13:24 (National Association of Japanese Canadians, 26 November 1980); 14:66–67 (Representative for Ukrainian-Canadians, 27 November 1980); 22:104–123 (British Columbia Civil Liberties Association, 9 December 1980); Canadian Intergovernmental Conference Secretariat, Verbatim Transcript (Unverified Text) of the Federal-Provincial Conference of First Ministers on the Constitution, vol. I, (Ottawa: 8–13 September 1980) 506–508, 562–563.

3  E.g., Ontario, Royal Commission of Inquiry into Civil Rights, Report No. 2, vol. 4 (Frank Fogg Queen’s Printer, 1969) 1588–1593; Minutes, Special Joint Committee on the Constitution 1978 ibid 18:51–52 (K. Rafe Mair, Chairman Cabinet Committee on Confederation, Government of British Columbia, 27 September 1978); Minutes, Special Joint Committee on the Constitution 1980, ibid 12:100–101 (Canada West Foundation, 25 November 1980), 14:81–82 (Premier MacLean, Prince Edward Island, 27 November 1980); Minutes, Special Joint Committee on Constitution of Canada, 32 Parl.1st sess., No 33 (7 January 1981) 33A-23 (Appendix, Alberta Government Position Paper on Constitutional Change, October 1978), 34:117–121 (Campaign Life Canada, 8 January 1981)), 34:131, 34:148–149, 34:168 (Peter Russell, University of Toronto, 8 January 1981); Verbatim Transcript of Federal-Provincial Conference of First Ministers, ibid 476–482, 485–492 (Premiers Lyon of Manitoba and Blakeney of Saskatchewan); Canada Notwithstanding above (n 1) 218–220.

4  Minutes, Special Joint Committee on the Constitution 1978 (n 2) 20:14 (Report to Parliament); Minutes, Special Joint Committee on the Constitution 1980 (n 2), 5-5A (14 November 1980), 5:8, 5:24, 5A:3 (Chief Commissioner Canadian Human Rights Commission); No 9 (20 November 1980), 9:129 (Advisory Council on the Status of Women), No 4 (13 November 1980), 4:92 (MP Svend Robinson), No 9 (20 November 1980) at 9:58 (National Action Committee on the Status of Women), No 22 (9 December 1980), 22:32-33 (Coalition for the Protection of Human Life), No 7 (18 November 1980) 7:9 (Canadian Civil Liberties Association); No 14 (27 November 1980) 14:59–60 (Representatives of Ukrainian Canadians). No 22 (9 December 1980) 22:105–106, 22:112 (British Columbia Civil Liberties Association).

5  Canada Notwithstanding above (n 1) 244.

6  Ibid 245; Federal-Provincial First Ministers’ Conference, Ottawa, Ontario, September 8–12, 1980: The Canadian Charter of Rights and Freedoms, Revised Discussion Draft, Federal, September 3, 1980 in Anne F Bayefsky, Canada’s Constitution Act 1982 & Amendments: A Documentary History (vol. I, McGraw-Hill Ryerson Limited, 1989) 704.

7  The National Deal, above (n 1) 135, 139–140; Canada Notwithstanding, above (n 1) 250. See also the references to the Minutes, Special Joint Committee on the Constitution 1980, above (n 4).

8  R. v Oakes [1986] 1 SCR 103. The main inspiration for the framework seems to have been the European Court of Human Rights’ case law: Robert J. Sharpe and Kent Roach, Brian Dickson: A Judge’s Journey (University of Toronto Press, 2003) 334.

9  Note however that ‘qualified rights’ provisions such as ss. 7, 8, and 15(1) leave a more limited role for s. 1 since their application already requires extensive balancing of various considerations.

10  Oakes above (n 8) [66].

11  Vriend v Alberta [1998] 1 SCR 493 [114]–[115]. For other examples of objectives not being found to be pressing and substantial or in accordance with the values of a free and democratic society, see Thomson Newspapers Co. v Canada (Attorney General) [1998] 1 SCR 877 [101]–[102]; M. v H. [1999] 2 SCR 3 [356] (Bastarache J., concurring); Dunmore v Ontario (Attorney General) [2001] 3 SCR 1016 [180]–[182] (L’Heureux-Dubé J., concurring); R v Hall [2002] 3 SCR 309 [112]–[115] (Iacobucci J., dissenting); Nova Scotia (Attorney General) v Walsh [2002] 4 SCR 325 [182]–[183] (L’Heureux-Dubé J., dissenting).

12  Compare R v Big M. Drug Mart Ltd. [1985] 1 SCR 295 and R v Edwards Books and Art Ltd [1986] 2 SCR 713. See the chapter by Benjamin Berger in this Handbook.

13  Oakes above (n 8) at 139; Osborne v Canada (Treasury Board) [1991] 2 SCR 69, 98; Lavigne v Ontario Public Services Employees Union [1991] 2 SCR 211, 291–292 (Wilson J., concurring); R v Laba [1994] 3 SCR 965, 1007–1008; Harvey v New Brunswick [1996] 2 SCR 876 [40]–[41]; Alberta v Hutterian Bretheren of Wilson Colony [2009] 2 SCR 567 [48], [51].

14  Rationality can be conceived purely instrumentally or more substantively, however. This was noted by Paul G Murray in ‘Section One of the Canadian Charter of Rights and Freedoms: An Examination at Two Levels of Interpretation’ (1989) 21 Ott L R 631, 643–646. See also R v Downey [1992] 2 SCR 10, 36–37, 42–47 (the majority applies the minimal instrumental rationality version of the test while the minority applies a version which incorporates added balancing). For an account of the trend towards minimal instrumental rationality see Christopher M Dassios and Clifton P Prophet, ‘Charter Section 1: The Decline of Grand Unified Theory and the Trend towards Deference in the Supreme Court of Canada’ (1993) 15 Advocates Q 289, 297–301.

15  Lucy Kramer Cohen (ed), The Legal Conscience: Selected Papers of Felix S. Cohen (Yale University Press, 1960), 44.

16  R v Keegstra [1990] 3 SCR 697 [305]–[311] (McLachlin J., as she then was, for the minority) (making hate propagandists into heroes while attempting to stigmatize them); Lavoie v Canada, [2002] 1 SCR 769 [10] (McLachlin C.J. and L’Heureux Dubé J for the minority) (undermining citizenship while trying to promote it). Sauvé v Canada (Chief Electoral Officer), [2002] 3 SCR 519 [30]–[44] (McLachlin C.J. for the majority) (undermining democracy and the rule of law while trying to protect it).

17  And yet … see Figueroa v Canada (Attorney General), [2003] 1 SCR 912 [75] (Iacobucci for majority) (party fielding a minimum of 50 candidates has little to do with genuine interest in electoral process); R v Advance Cutting and Coring Ltd. [2001] 3 SCR 209 [47] (Bastarache J. for the minority) (‘regional quotas have little if anything to do with the professional competence of workers in the construction industry’).

18  That stripped down version of Minimal Impairment was most recently favoured by the Court in Canada (Attorney General) v JTI-Macdonald Corp. [2007] 2 SCR 610, 2007 SCC 30 [43]; Hutterian Brothers (n 13) [54]–[55]; Saskatchewan (Human Rights Commission) v Whatcott 2013 SCC 11, [2013] 1 SCR 467 [101].

19  For a similar observation, see Murray (n 14) 647, 652, 663. For examples of the ‘pure’ and ‘balancing’ versions of minimal impairment, compare the majority (balancing) and minority (pure) reasons in R v Hess; R v Nguyen, [1990] 2 SCR 906 [24]–[32], [112]–[116]. See also Osborne (n 13) [55]–[61] (Sopinka J., for the majority—balancing), [91]–[94] (Stevenson J., dissenting—pure); R v Seaboyer; R v Gayme, [1991] 2 SCR 577 [83] (McLachlin J., as she then was, for the majority—balancing), [272]–[276] (L’Heureux-Dubé J. for the minority—pure); R v Wholesale Travel Group Inc, [1991] 3 SCR 154 [58]–[62], [80]–[91] (Lamer C.J. for the minority—balancing), [244]–[245] (Iacobucci J. for the majority—pure); R v Mills, [1999] 3 SCR 668 [11] (Lamer C.J., dissenting—balancing); R v Sharpe, [2001] 1 SCR 45 [96]–[97] (McLachlin C.J. for majority—pure); Harper v Canada, [2004] 1 SCR 827 [32]–[39] (McLachlin C.J. and Major J., for the dissent—balancing). American courts also tend to apply different versions of the ‘least drastic means test”: Note, ‘Less Drastic Means and the First Amendment’ (1969) 78 Yale LJ 464, 471–473.

20  A more complete formulation of the final proportionality test than the one described in Oakes was put forward by Chief Justice Lamer in Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835, 887–888.

21  Thomson Newspapers (n 11) [125] [Emphasis added]. The same point is made by L Wayne Sumner in The Hateful and the Obscene: Studies in the Limits of Free Expression (University of Toronto Press, 2004), 66–67. See also Pierre Blache, ‘The Criteria of Justification under Oakes: Too Much Severity Generated through Legal Formalism’ (1991) 20 Manitoba LJ 437, 444; David M Beatty, The Ultimate Rule of Law (Oxford University Press 2004) 163; Aharon Barak, ‘Proportional Effect: The Israeli Experience’ (2007) UTLJ 369, 374, 380–381; Dieter Grimm, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57 UTLJ 383, 393–394, 396; Alan Brudner, ‘What Theory of Rights Best Explains the Oakes Test?’ in Luc B. Tremblay and Grégoire C.N. Webber (eds), La limitation des droits de la Charte: essais critiques sur l’arrêt R. c. Oakes/The limitation of Charter Rights: Critical Essays on R. v. Oakes (Thémis, 2009) 59, 60.

22  See for instance Ramsden v Peterborough (City), [1993] 2 SCR 1084 where General Proportionality is coupled with Minimal Impairment in order to show that the law is not justified. Apparently, courts in Germany tend to be more willing to declare laws unconstitutional solely on the basis of an absence of General Proportionality: Grimm ibid 389, 393.

23  Oakes (n 8) 135; Singh v Minister of Employment and Immigration, [1985] 1 SCR 177, 218. See also the dissenting reasons of Dickson C.J. and Wilson J. in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 SCR 313 [102].

24  Singh, above (n 23) 218–219.

25  They may nonetheless be overridden in order to ‘protect the rights of others, or to prevent a catastrophe, or even to obtain a clear and major public benefit’. Ronald Dworkin, ‘Taking Rights Seriously’ in Taking Rights Seriously (New Impression with a Reply to Critics, Duckworth, 1978) 184, 191.

26  Oakes above (n 8) 139–140.

27  Ibid 138.

28  Edwards Books (n 12) 768–769. See also United States of America v Cotroni; United States of America v El Zein, [1989] 1 SCR 1469.

29  Edwards Books above (n 28) 795.

30  Keegstra above (n 16) 735. See also La Forest J. in McKinney v University of Guelph, [1990] 3 SCR 229, 280; La Forest J. (dissenting) in RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199 [60]–[64]; Gonthier J. (dissenting) in Sauvé above (n 16) [79]–[83]; Hutterian Bretheren above (n 13) [37] (McLachlin C.J. for the majority).

31  Andrews v Law Society of British Columbia, [1989] 1 SCR 143, 184. Justice MacIntyre’s reasons on s. 15 were agreed with by a majority of the court, but he was only joined by Lamer J. on s. 1 and on the result. Justice Wilson, joined by Dickson C.J. and L’Heureux Dubé J., expressly disagreed with that aspect of Justice MacIntyre’s reasons, ibid 154. Justice La Forest (in agreement with Wilson J. as to the result) substantially agreed with Justice MacIntyre on this point, ibid 198.

32  Edwards Books above (n 12) [144]; Irwin Toy Ltd. v Quebec (Attorney General), [1989] 1 SCR 927, 989–990.

33  R. v. Lee, [1989] 2 S.C.R. 1384, 1391; Newfoundland (Treasury Board) v N.A.P.E., [2004] 3 SCR 381 [66]–[68].

34  For instance: Jamie Cameron, ‘The Forgotten Half of Dolphin Delivery: A Comment on the Relationship between the Substantive Guarantees and Section 1 of the Charter’ (1988) 22 UBC LR 147, 152; Blache above (n 21); Pamela A Chapman, ‘The Politics of Judging: Section 1 of the Charter of Rights and Freedoms’ (1986) Osgoode Hall LJ 867; Errol P Mendes, ‘In Search of a Theory of Social Justice: The Supreme Court Reconceives the Oakes Test’ (1990) 24 RJT 1, 3, 6; Norman Siebrasse, ‘The Oakes Test: An Old Ghost Impeding Bold New Initiatives’ (1991) 23 Ott LR 99; Joel C Bakan, ‘Constitutional Arguments: Interpretation and Legitimacy in Canadian Constitutional Thought’ (1989) 27 Osgoode Hall LJ 123, 163–168, 180.

35  Robert Alexy, perhaps the most well-known exponent of proportionality theory, seems to acknowledge that value attribution is not displaced by proportionality analysis: Robert Alexy, A Theory of Constitutional Rights (trans. Julian Rivers, Oxford University Press, 2002) 100, 105, 366, 397–414. See also, Mattias Kumm, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in George Pavlakos (ed), Law, Rights, Discourse: The Legal Philosophy of Robert Alexy (Hart, 2007) 131.

36  Oakes above (n 8) 136.

37  Eg Blache, above (n 21); Siebrasse, above (n 34) (who would drop the whole structure of Oakes and go for immediate balancing), and Leon E Trakman et al., ‘R. v. Oakes, 1986-1997: Back to the Drawing Board’ (1998) 36 Osgoode Hall LJ 83.

38  Some suggestions as to the kind of normative political philosophy which should be adopted under s. 1: Mendes above (n 34) 12–13, 26, 30, 33–34; Ruth Colker, ‘Section 1, Contextuality and the Anti-disadvantage Principle’ (1992) 42 UTLJ 77.

39  This was noted by Henri Brun, Guy Tremblay, and Eugénie Brouillet, Droit constitutionnel (6th ed Yvon Blais 2014) 1010:

À tort [ … La Cour suprême du Canada] parle souvent de violation et même parfois de suppression de droit dès le début de cette deuxième étape de l’analyse, alors qu’il ne s’agit encore, en réalité, que d’une atteinte; en conséquence, elle soumet la deuxième étape à un régime complètement différent de la première, régime qui correspond davantage à un contexte de violation des droits. [The Supreme Court of Canada] often refers, wrongly, to a violation, and sometimes even to the suppression of a right at the very beginning of this second step of the analysis, whereas in reality it remains a mere infringement; consequently, the second step methodology is completely different from that of the first, and corresponds more to a violation of rights context.

See also Siebrasse, above (n 34) 118–119, 127.

40  Robert Nozick has famously described rights as ‘side-constraints’ upon the actions to be done. This picture notably implies that one cannot violate the rights even in order to lessen their total violation in society, thereby rejecting what Nozick had called a ‘utilitarianism of rights’. Robert Nozick, Anarchy, State and Utopia (Basic Books, 1974), 28–33; see also Ronald Dworkin, ‘Rights as Trumps’ in Jeremy Waldron (ed), Theories of Rights (Oxford University Press, 1984) 153. But recall that even Dworkin acknowledges that rights will give way to social-utilitarian considerations in some cases: Dworkin, above (n 25). In Canada, something like the Taking Rights Seriously position was defended by Lorraine Eisenstat Weinrib in ‘The Supreme Court of Canada and Section 1 of the Charter’ (1988) 10 Sup Ct LR 469.

41  Blache above (n 21) 447.

42  Oakes above (n 8) 139–140.

43  For a similar observation see Brun, Tremblay, and Brouillet, above (n 39) 1015.

44  See Giovanni Sartor, ‘Defeasibility in Legal Reasoning’ in Zenon Bankowski, Ian White and Ulrike Hahn (eds), Informatics and the Foundations of Legal Reasoning (Kluwer, 1995) 119, 122.

45  Default rules in favor of rights or deference can be conceived as potential ‘distancing devices’, that is devices on which public institutions may rely to settle issues involving incommensurability of reasons and which cannot be settled by reason. Then we are faced with a choice of distancing devices. Joseph Raz ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’ in J. Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford University Press, 2009) 323, 368–369.

46  Aileen Kavanagh’s work offers a particularly sophisticated and well-balanced analysis of the constitutional role of courts: ‘The Role of Courts in the Joint Enterprise of Governing’ in Nicholas W. Barber, Richard Ekins and Paul Yowell (eds), Lord Sumption and the Limits of the Law (Hart, 2016) 212; ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 LQR 222; ‘Judicial Restraint in the Pursuit of Justice’ (2010) 60 UTLJ 23; ‘Constitutional Review, the Courts and Democratic Scepticism’, (2009) 62 CLP 102; ‘Deference or Defiance? The Limits of the Judicial Role in Constitutional Adjudication’ in G. Huscroft (ed), Expounding the Constitution: Essays in Constitutional Theory (Cambridge University Press, 2008) 184.

47  Edwards Books (n 12), Dickson C.J. [147], La Forest J. [181]–[183]; Irwin Toy (n 32). See also Guy Tremblay and Stéphane Marsolais, ‘Reconnaître aux pouvoirs politiques une marge d’appréciation aux fins de l’article premier de la Charte canadienne’ (1992) 52 Can Bar Rev 841.

48  Operation Dismantle v The Queen, [1985] 1 SCR 441, 491. [emphasis added]

49  Newfoundland (Treasury Board) v N.A.P.E. (n 33) [114]–[116].

50  Eg in South Africa, Israel, Ireland, and New Zealand. See Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Colum. J. Transnat’l L. 72, 123–135.

51  Kurt Baier, The Moral Point of View: A Rational Basis of Ethics (Cornell University Press, 1958), 172.