The emergence of the third step of the Oakes test in Alberta v. Hutterian Brethren of Wilson Colony.

• Author: Weinrib, Sara

Abstract

Although the three-step Oakes proportionality test has served as a model for constitutional adjudication around the world, other countries have developed the specific methodology of each step differently. The Supreme Court of Israel has developed an approach in which the last step of the test--the requirement of proportionality between a measure's salutary and deleterious effects--plays a critical role. The Supreme Court of Canada, in contrast, has traditionally not articulated a distinctive role for the third step, preferring instead to focus on the second step of this test--the minimal impairment analysis.

Nevertheless, in the recent case of Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, McLachlin C.J.C. (for the majority) and Abella J. (in dissent) both expressed an interest in adopting President Barak's approach. This comment assesses the extent of the Court's adoption of this methodology by comparing the approaches taken by McLachlin C.J.C. and Abella J. to that taken by President Barak in his two foundational cases on this step. Drawing on this comparison, I argue that neither McLachlin C.J.C. nor Abella J. replicated President Barak's distinctive methodology, and that, as a result, the conclusions they reached differed significantly from the conclusions President Barak reached in his cases on this step. I then note that LeBel J.'s separate dissenting opinion, which explicitly rejected the Court's newfound emphasis on the third step, did invoke some of the key features of President Barak's approach.

This comment then discusses what the Court's complex response in Hutterian Brethren to President Barak's approach indicates about the appropriateness of his methodology to the Canadian constitutional context. It suggests that while President Barak has illuminated an important question that should be asked in the last step of the Oakes test, a nuanced response to this question requires this step to continue to be preceded by a separate and rigorous minimal impairment analysis.

Resume

Bien que le cadre d'analyse a trois etapes du test de proportionnalite Oakes ait servi a titre d'exemple dans plusieurs decisions constitutionnelles du monde, les tribunaux d'autres pays ont developpe de facon distincte la methodologie propre a chaque etape. La Cour supreme d'Israel a developpe une approche selon laquelle la derniere etape du test--la proportionnalite entre les effets prejudiciables et benefiques de la mesure--joue un role essentiel. Cependant, la Cour supreme du Canada n'a pas enonce de role defni a la troisieme etape, ayant traditionnellement developpe l'etape seconde, l'analyse de l'atteinte minimale.

Quoi qu'il en soit, dans la decision Alberta c. Hutterian Brethren of Wilson Colony, 2009 CSC 37, la juge en chef McLachlin, ecrivant pour la majorite, et la juge Abella, dissidente, ont exprime un interet certain envers l'approche du president Barak. Ce commentaire evalue la soi-disant adoption de la methodologie par la Cour supreme en comparant les approches des juges McLachlin et Abella a l'approche du president Barak dans ses deux jugements

fondamentaux a ce sujet. Je soutiens que les juges McLachlin et Abella n'ont pas adopte la methodologie distincte du president Barak, et que consequemment leurs conclusions different considerablement des conclusions du president Barak dans ses decisions. Je note ensuite qu'ironiquement, l'opinion dissidente du juge LeBel, qui rejette explicitement la mise en valeur de la troisieme etape, rappelle certaines caracteristiques essentielles de l'approche du president Barak.

Ce commentaire s'attarde ensuite sur ce que la reponse elaboree de la Cour dans Hutterian Brethren revele au sujet de la pertinence de l'approche du president Barak dans le contexte constitutionnel canadien. Quoique le president Barak ait mis en valeur une question essentielle qui doit etre posee lors de la derniere etape du test Oakes, il est essentiel qu'une reponse adequate a cette question soit toujours precedee d'une analyse distincte et rigoureuse de l'atteinte minimale.

I INTRODUCTION II ISRAEL'S DEVELOPMENT OF THE PROPORTIONATE EFFECTS TEST Beit Sourik Adalah A Summary of President Barak's Approach III THE THIRD STEP COMES TO CANADA IN HUTTERIAN BRETHREN Chief Justice McLachlin's Analysis Justice Abella's Analysis Justice LeBel's Analysis IV CONCLUSION INTRODUCTION

Section 1 of the Charter stipulates that Charter rights are subject to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (1) In R. v. Oakes, the Supreme Court of Canada provided a two-pronged test for the state to demonstrate that a law that infringes a Charter right is justified. (2) First, the law's objective must be "of sufficient importance". (3) Second, the law must be proportionate, in that it (1) is rationally connected to its objective, (2) impairs the right no more than is necessary to accomplish its objective, (4) and (3) achieves a proportionate balance between its salutary and deleterious effects. (5)

The three-step Oakes proportionality test bas served as a model for constitutional adjudication around the world, (6) but other countries have developed the specific methodology of each step differently. The Supreme Court of Canada has emphasized the second step--the minimal impairment analysis--and bas not articulated a distinctive role for the third step. (7) Canadian academics have similarly opined that the third step does not play a critical role in the Oakes analysis. (8) President Barak of the Israeli Supreme Court, on the other hand, more fully developed the third step in two recent cases, Beit Sourik Village Council v. Israel (9) and Adalah v. Minister of the Interior. (10) President Barak then wrote an article for the University of Toronto Law Journal summarizing his distinctive methodology. (11)

In Alberta v. Hutterian Brethren of Wilson Colony, the Supreme Court of Canada considered whether to follow President Barak's approach. (12 ) The case concerned a regulation from Alberta that required photos on all drivers' licenses, terminating the exemption the province had previously offered to drivers who objected to license photos on religious grounds. (13 ) In response, both McLachlin C.J.C. (for the majority) and Abella J. (in dissent) expressed an interest in adopting the Israeli approach, but applied it differently: McLachlin C.J.C. upheld the regulation as proportionate under this step, while Abella J. would have struck it down. Justice LeBel, in a separate dissent, argued for a return to the centrality of the Court's traditional minimal impairment analysis.

This comment compares the approaches taken by the Court in Hutterian Brethren to that taken by President Barak in his two foundational cases on the third step. Part II sets out the approach President Barak developed in Beit Sourik and Adalah, noting in particular President Barak's conception of this approach as one that addressed specific limitations of the minimal impairment analysis. Part III considers the Court's treatment of President Barak's methodology in Hutterian Brethren. It argues that while neither McLachlin C.J.C. nor Abella J. replicated President Barak's distinctive conception of the interaction between the second and third steps of the proportionality test, LeBel J.'s separate dissenting opinion more closely reflected this interaction. In my conclusion, I consider the appropriateness of applying President Barak's methodology to the Canadian constitutional context, and I suggest that the questions President Barak asked in the last step of the Oakes test can only be answered when this step is preceded by a separate and rigorous minimal impairment analysis.

II ISRAEL'S DEVELOPMENT OF THE PROPORTIONATE EFFECTS TEST

President Barak declared in his article, "Proportionate Effects: The Israeli Experience", that the last step of the Oakes test remedied the following limitation of the minimal impairment analysis:

This [second] step has an internal limitation that prevents it from granting proper protection to human rights. This limitation is due to the fact that the least drastic means must be able to realize the object that the statute is intended to realize. A means that is the least drastic but that realizes another object, or realizes it less properly, is of no use.... Of course, a marginal difference is not decisive. Thus the difficulty latent in this step is revealed. Only if it is possible to realize the objects of the statute by less drastic means does this step grant protection to human rights. If there are no such means, this step does not have the power to protect human rights, even if the limitation of them is severe. (14) For President Barak, the second step of Oakes does not sufficiently protect rights because it requires the Court to sanction a measure that severely infringes on rights as long as no alternative means would achieve the government's objective to a similar extent. In other words, in this step the protection of constitutional rights hinges on whether it is possible for the government to realize its objective fully by less drastic means.

For President Barak, the last step of the Oakes test requires the court to go beyond this limited inquiry and take full account of the measure's deleterious effect on the right at issue. But how does a court go about calculating and comparing the benefits a measure brings with the degree to which it infringes on constitutional rights? President Barak declared that his approach to the third step "found its full expression" in two cases: Beit Sourik and Adalah. (15 ) In this Part, I discuss each case in order to set out the particular methodology President Barak developed. This section concludes with a synopsis of this methodology as garnered from these cases.

Beit Sourik

In Beit Sourik, the Supreme Court of Israel considered the proportionality of a "separation fence" Israel built to prevent the...