A wobbly balance? A comparison of proportionality testing in Canada, the United States, the European Union and the World Trade Organization.

AuthorAttaran, Amir

The law and the newspapers are full of instances in which two different, conflicting societal interests are being traded off--or balanced--against one another by the courts. Every democracy is faced with such choices, and in a given moment the choice may be simple (the decision to suppress publishing military secrets in wartime), or complex (the decision to suppress anti-war protests). Choices of this kind--constitutional choices--are so identified with the protection of civil rights that in the vernacular, the adjective "unconstitutional" is understood as intolerable state action encroaching on the rights of a person. Tests over constitutionality are among the most celebrated matches between a person and the state, generating rich public discourse. For instance, do the courts go too far when they protect the rights of unpopular persons, such as the right of Nazis to parade though a neighborhood of Holocaust survivors? (1) The answer, of course, depends on how courts balance competing interests.

However, in the last several decades, balancing has ceased to be the exclusive preserve of national human rights law. International trade courts, applying the General Agreement on Tariffs and Trade (GATT) (2) and other European Community treaties, now use proportionality testing to balance national interests and the objectives of free trade. Yet, among the thorny questions of the free trade debate whether jobs are lost, environmental or health standards weakened, or developing countries fairly treated, etc.--it is rarely asked whether trade courts balance competing interests appropriately. Public attention is focused on the results of trade adjudication, or the language of the trade agreements, but seldom the process of how trade courts balance competing interests.

Why does something as subtle as the process of balancing matter? Plainly, it matters because the process can render the law highly malleable. The same court, in the same country, faced with the same substantive law, can reach one judgment, and, shortly thereafter, reach its polar opposite. Upon close inspection, the only real difference may be how the court balanced the competing interests. The rise and fall of the "separate but equal" doctrine of racial segregation in the United States is a famous example of this and suggests that to understand the balancing process it is best to examine a few illustrative examples. (3)

This study is a cross-jurisdictional survey of judicial balancing and proportionality testing--the primary juridical tool which courts use in balancing. This study has two purposes. The first purpose is expository: to describe in detail the legal principles and judicial application of balancing and proportionality testing in four different tribunals (the Supreme Court of Canada; the United States Supreme Court; the ECJ; and the panels of the WTO). This exposition sets the stage for the paper's second, discursive purpose: to propound theories of how the tribunals can articulate superficially similar proportionality tests, yet ultimately achieve vastly different results.

PART I--WHAT ARE BALANCING AND PROPORTIONALITY?

Balancing is a judicial exercise aimed at reconciling two legitimate and conflicting interests, by ranking them hierarchically, and determining the permissible extent of conflict between them. The object of any balancing exercise is to arrive at a proportional result: affirming the superior interest, yet allowing the inferior interest to coexist to the extent that it remains compatible. The balancing inquiry may be approached in different ways, but it always requires the judge to take certain logical steps: (4)

(1) There must be some ascription of weight or value to the interests concerned,

(2) A determination must be made as to whether certain interests may be traded off to achieve other goals. Some interests (e.g. the right to life), may be so highly valued that we would not compromise them for the sake of other interests (e.g. the right to shout "fire" in a crowded theater).

(3) If a trade off is appropriate, a decision must be made as to whether the intrusion on the superior interest is proportionate. The proportionality test itself may be phrased a number of ways. For example:

(a) Are the means adopted to achieve an objective rationally connected to the objective, and if so, are the means the least restrictive which could be adopted in the circumstances? Or,

(b) Are the means adopted to achieve an objective congruent with the importance of the objective, and are they necessary for its achievement? Or,

(c) Are the means adopted suitable and necessary for the achievement of the objective, and do they not impose excessive burdens on the interests which are adversely affected? Or,

(d) What are the relative costs and benefits of the means chosen to attain an objective?

(4) Having decided which proportionality test to use, the judge must decide on the stringency or the intensity of judicial review. As a general rule, if the state infringes a highly valued interest, a more stringent formulation of the proportionality test in step (3) will be used.

Balancing and proportionality testing aspire to be rigorous, almost quasi-scientific in nature, for good reason. Although the law is shot through with discretion, openly acknowledging that fact makes lawyers and judges uneasy--discretion reeks of subjectivity. Lawyers and judges prefer to distance themselves from discretion, using tests that suggest logical purity, intellectual legitimacy, and legal "truth". (5)

However, just because proportionality testing appears to be quasi-scientific does not mean that it is actually so. There remains abundant, covert discretion secreted away within the steps of proportionality testing. Some academics have cautioned about the judicial latitude that exists when characterizing competing interests, arguing that judges can preordain the outcome of a case by picking either a broad or a narrow characterization of the interests to be balanced. (6) Some scholars believe this latitude is enough to question whether the public should have trust in such judicial decisions at all. (7) Other scholars disagree, and while acknowledging certain permutations in different courts, they find in proportionality testing a subtle proof of bedrock legalism and truth--no less than "the ultimate rule of law". (8)

This paper falls between these two views, though nearer the former. Proportionality testing, despite the quasi-scientific incantations that surround it, is no better than open, notorious and bare discretion in finding legally true results. It is the sugar coating that renders bitter discretion palatable to lawyers and judges. But the process of proportionality testing forces lawyers and judges to formulate their judgments, rendering the outcome more reasoned than tendentious and more true. Even if proportionality testing can be manipulated by a judge to produce the desired result, the distortion to the legal truth is evident in the written judgment.

PART II--PARAMETERS OF THE COMPARISON:

When comparing four jurisdictions, with four separate bodies of substantive law and four tribunals, a few simplifying assumptions are required.

First, this comparison is restricted in the areas of law it surveys. Even within a single jurisdiction, balancing is done differently depending on the legal interest at stake. In Canada, the courts balance an infringement of the right to life quite differently than the right to freedom of expression--both would confound the comparison. Thus, for the Supreme Courts of Canada and the United States, I focus on the law of free expression; for the ECJ and the Panels of the WTO, I focus on the law of free trade of goods. To show how proportionality testing can be manipulated by judges, it is more important to go deep rather than broad in this comparison. Though the number of cases presented is small, they are looked at in great detail.

Second, it is relevant to briefly set out the fundamental features of the tribunals.

Along jurisprudential lines: The Supreme Courts of Canada and the United States are largely human rights-based, and decide cases involving fundamental freedoms. The ECJ is largely, but not exclusively, concerned with international trade-based disputes. The WTO Panels adjudicate trade-based disputes alone.

Along historical lines: The Supreme Courts of Canada and the United States descend from the precedent-driven, adversarial, and verbose English law tradition. The ECJ stems from a less precedential, less adversarial, and terser European civil law tradition. The WTO Panels are unique and almost without tradition, as they stem from a global trade regime that dates back only to 1947.

Along political and institutional lines: The Supreme Courts of Canada and the United States are the permanent judicial institutions of national governments. The ECJ is a permanent judicial institution of a federal European government. The WTO Panels are ad hoc administrative tribunals unaffiliated with any government.

It is these distinctions--of structure, history and approach--that lie at the root of the method by which these tribunals make use of balancing and proportionality testing. This argument requires a detailed exposition and dissection of how the tribunals have used proportionality testing, which is the subject of the next four sections.

  1. The Supreme Court of Canada (SCC):

    The major instrument guaranteeing human and civil rights in Canada is the Canadian Charter of Rights and Freedoms, which is part of the national constitution. (9) The Charter is relatively new, and marks a departure from the old Diceyan model of Canadian parliamentary supremacy.

    Section 2(b) of the Charter provides for the right of freedom of expression:

  2. Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

    This freedom is qualified by section 1...

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