B. Proportionality

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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The text of the Charter says little about how limitations on rights are to be justified, but the Supreme Court of Canada, employing the purposive approach, established the basic framework for analysis in R v Oakes.15It is at the justification stage that a court must consider the interest in limiting a right or freedom and weigh collective interests or the competing rights of other individuals against the right of the claimant. The reconciliation of the competing interests against individual rights is achieved by focusing on the legitimacy of the government’s ob-

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jective and the "proportionality" between the means chosen to achieve that objective and the burden on the rights claimant.

In addition to the "prescribed by law" requirement discussed above, there are four steps to the section 1 analysis:

1) The objective of the measure must be important enough to warrant overriding a Charter right.

2) There must be a rational connection between the limit on the Charter right and the legislative objective.

3) The limit should impair the Charter right as little as possible.

4) There should be an overall balance or proportionality between the benefits of the limit and its deleterious effects.

1) Sufficiently Important Objective

First, it must be established that there is an objective "of sufficient importance to warrant overriding a constitutionally protected right or freedom."16In Oakes, the Supreme Court of Canada said that the objective must "relate to concerns which are pressing and substantial in a free and democratic society." The courts have been relatively defer-ential to legislative judgment of the importance of the objective. However, the government has failed on a number of occasions to satisfy this requirement. In one case, the Supreme Court held that Quebec legislation limiting the rights of English-speaking parents to have their children attend English-language schools unless the parents had been educated in English in Quebec constituted a direct attack on the very right enshrined in section 23 of the Charter, and hence the law was not motivated by a proper objective.17In another early Charter case, the Supreme Court indicated that compelling the observance of the Christian Sabbath was not a satisfactory objective for limiting the rights of non-Christians by requiring stores to close on Sundays. This objective was not satisfactory because "it would justify the law upon the very basis upon which it is attacked for violating s 2(a)," namely, the protection of freedom of all religions and not just the religion of Christians.18

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Similarly, in an Ontario case, the Court of Appeal held that legislation requiring the recital of the Lord’s Prayer in non-denominational public schools constituted an attempt to impose a form of religious observance and that such an objective was not permitted by the guarantee of freedom of religion.19In all these cases, the stated objective denied rather than limited or qualified the right. As MCLACHLIN CJC put it in a right-to-vote case, "a simple majoritarian political preference for abolishing a right altogether would not be a constitutionally valid objective."20In another case, the Supreme Court dealt with a challenge to a vague law prohibiting the spreading of "false news."21Given the ancient origin of the law, it was unclear what its objective was at the time it was enacted. While the law was now used to deal with hate propaganda, it had not been designed for that purpose, and the majority of the Court held that it was not acceptable for the government to advance a new objective or shifting purpose not in the mind of Parliament when the law was enacted.

In Vriend v Alberta,22the Supreme Court found that Alberta had failed to articulate any objective or purpose that would be achieved by denying the protection of its human rights law to gays and lesbians. As Iacobucci J. stated, to sustain a limit on a protected freedom, a government must offer more than an explanation why it chose to deny the right - it must be pursuing some objective: "An ‘objective,’ being a goal or an ‘explanation’ which makes plain that which is not immediately obvious."23The Court also hinted that the "legislative omission is on its face the very antithesis of the principles involved in the legislation

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as a whole" which, like the Charter, was concerned with preventing discrimination and protecting the equal dignity of all persons.

On the other hand, the state has not been held to a strict standard of proof of the harm at which challenged legislation is aimed.24Indeed, in most cases, the Court has accepted the objective once asserted without the need for evidence.25Cases in which the government fails to satisfy this first branch of the section 1 test are the exception rather than the rule. One study has concluded that, in 97 percent of cases, the state is readily able to satisfy the court that the law being challenged is motivated by a permissible objective of sufficient weight.26Although courts will accept most articulated and non-discriminatory legislative objectives as sufficiently important to limit Charter rights, this first step in proportionality analysis can have a crucial effect on subsequent stages of the analysis. As the Court observed in Toronto Star Newspapers Ltd v Canada,27"all steps of the Oakes test are premised on a proper identification of the objective of the impugned measure."

If the court defines the legislative objective broadly, it may be more difficult for the government to demonstrate that there has been minimal impairment of the right and that there is no less restrictive means to advance the legislative objective. On the other hand, if the objective is defined more narrowly, it may be easier to justify the limitation as a proportionate means of advancing the particular objective. Indeed, if the objective is defined too narrowly, there is a danger that the rest of the proportionality analysis may become "no more than a pair of tautologies"28that are self-fulfilling. The Supreme Court has indicated that under section 1 of the Charter, "it is desirable to state the purpose of the limiting provision as precisely and specifically as possible so as to provide a clear framework for evaluating its importance, and the precision with which the means have been crafted to fulfil that objective."29

"Vague and symbolic objectives" render proportionality analysis hollow and "almost guarantee a positive answer."30One exception to this general preference for a fairly narrow definition of the objective is in the

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case of under-inclusive legislation, in which case the courts will examine not only the purposes of the unconstitutional omission, but also of the legislation as a whole.31

2) Rational Connection between Limit and Objective

The next phase in proportionality review is to consider whether there is a rational, non-arbitrary, non-capricious connection between the legislative objective and the law that is challenged.

At this second stage, the courts again have been deferential, and it is rare to find that there is no rational connection between the legislative objective and the law that is subject to scrutiny. As Iacobucci J remarked in a freedom of expression case, "[t]his test is not particularly onerous."32In the Oakes case, however, the Supreme Court held that there was no rational connection between the objective of curbing traffic in drugs and a law that reversed the usual onus of proof in criminal cases and required anyone found in possession of any amount of drugs to prove that he or she did not have the intent to traffic. In the Court’s view, there was a lack of internal rationality in the legislation, because the reverse-onus provision assumed that an individual in possession of even a very small amount of a drug would be likely to traffic. In the words of Dickson CJC:

[P]ossession of a small or negligible quantity of narcotics does not support the inference of trafficking. In other words, it would be irrational to infer that a person had an intent to traffic on the basis of his or her possession of a very small quantity of narcotics. The presumption required under s 8 of the Narcotic Control Act is over-inclusive and could lead to results in certain cases which would defy both rationality and fairness.33Most commentators suggest that the Court might more readily have justified striking down the law under the minimal impairment test, discussed below. Some have argued that there is a rational connection between the objective of suppressing drug trafficking and making convictions easier for the state by a reverse-onus clause.34However, the Court in Oakes not only looked at the rationality of the means to meet the objective from the state’s point of view, but also considered the arbi-

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trariness of the law with respect to the rights claimant, a consideration now more likely to be addressed...

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