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 References(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.
References(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 References(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 References(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:
Justice Binnie reiterated the point almost 20 years later in Newfoundland (Treasury Board) v. N.A.P.E., saying:
* 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  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) .
11 Vriend v Alberta  1 SCR 493 –. 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)  1 SCR 877 –; M. v H.  2 SCR 3  (Bastarache J., concurring); Dunmore v Ontario (Attorney General)  3 SCR 1016 – (L’Heureux-Dubé J., concurring); R v Hall  3 SCR 309 – (Iacobucci J., dissenting); Nova Scotia (Attorney General) v Walsh  4 SCR 325 – (L’Heureux-Dubé J., dissenting).
12 Compare R v Big M. Drug Mart Ltd.  1 SCR 295 and R v Edwards Books and Art Ltd  2 SCR 713. See the chapter by Benjamin Berger in this Handbook.
13 Oakes above (n 8) at 139; Osborne v Canada (Treasury Board)  2 SCR 69, 98; Lavigne v Ontario Public Services Employees Union  2 SCR 211, 291–292 (Wilson J., concurring); R v Laba  3 SCR 965, 1007–1008; Harvey v New Brunswick  2 SCR 876 –; Alberta v Hutterian Bretheren of Wilson Colony  2 SCR 567 , .
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  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  3 SCR 697 – (McLachlin J., as she then was, for the minority) (making hate propagandists into heroes while attempting to stigmatize them); Lavoie v Canada,  1 SCR 769  (McLachlin C.J. and L’Heureux Dubé J for the minority) (undermining citizenship while trying to promote it). Sauvé v Canada (Chief Electoral Officer),  3 SCR 519 – (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),  1 SCR 912  (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.  3 SCR 209  (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.  2 SCR 610, 2007 SCC 30 ; Hutterian Brothers (n 13) –; Saskatchewan (Human Rights Commission) v Whatcott 2013 SCC 11,  1 SCR 467 .
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,  2 SCR 906 –, –. See also Osborne (n 13) – (Sopinka J., for the majority—balancing), – (Stevenson J., dissenting—pure); R v Seaboyer; R v Gayme,  2 SCR 577  (McLachlin J., as she then was, for the majority—balancing), – (L’Heureux-Dubé J. for the minority—pure); R v Wholesale Travel Group Inc,  3 SCR 154 –, – (Lamer C.J. for the minority—balancing), – (Iacobucci J. for the majority—pure); R v Mills,  3 SCR 668  (Lamer C.J., dissenting—balancing); R v Sharpe,  1 SCR 45 – (McLachlin C.J. for majority—pure); Harper v Canada,  1 SCR 827 – (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.,  3 SCR 835, 887–888.
21 Thomson Newspapers (n 11)  [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),  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,  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.),  1 SCR 313 .
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.
28 Edwards Books (n 12) 768–769. See also United States of America v Cotroni; United States of America v El Zein,  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,  3 SCR 229, 280; La Forest J. (dissenting) in RJR-MacDonald Inc. v Canada (Attorney General),  3 SCR 199 –; Gonthier J. (dissenting) in Sauvé above (n 16) –; Hutterian Bretheren above (n 13)  (McLachlin C.J. for the majority).
31 Andrews v Law Society of British Columbia,  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) ; Irwin Toy Ltd. v Quebec (Attorney General),  1 SCR 927, 989–990.
33 R. v. Lee,  2 S.C.R. 1384, 1391; Newfoundland (Treasury Board) v N.A.P.E.,  3 SCR 381 –.
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. , La Forest J. –; 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,  1 SCR 441, 491. [emphasis added]
49 Newfoundland (Treasury Board) v N.A.P.E. (n 33) –.
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.