The emergence of the third step of the Oakes test in Alberta v. Hutterian Brethren of Wilson Colony.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.
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
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.
In Beit Sourik, the Supreme Court of Israel considered the proportionality of a "separation fence" Israel built to prevent the penetration of terrorists from the Occupied Territories into Israel. (16 ) The proposed route encircled Palestinian towns in the Occupied Territories, and landowners and village councils from these towns claimed that it unjustifiably infringed their freedom of movement, vocation, and religion.
In his minimal impairment analysis, President Barak considered an alternative route proposed by members of the Council for Peace and Security (CPS)--a non-partisan organization of retired generals with significant security expertise. (17 ) The CPS proposed a route that provided greater buffer space between the fence and Palestinian towns and argued that this route would equally ensure Israel's security for two reasons: First, it would tender Israeli security forces less susceptible to attack from these towns, and, second, it would decrease the bitterness of the local population--and their attraction to terrorist organizations--by preventing the separation of Palestinian farmers from their lands. (18)
President Barak rejected the CPS's argument that their route would equally achieve Israel's security objective: "there is no alternative route that fulfills, to a similar extent, the security needs while causing lesser injury to the local inhabitants." (19 ) He grounded this conclusion in the deference the Court was required to show its military commanders: "At the foundation of this approach is our long-held view that we must grant special weight to the military opinion of the official who is responsible for security." (20 ) President Barak's conclusion that the military commanders' route met the minimal impairment test thus reflected a policy of judicial deference to military leaders rather than a rigorous analysis of each alternative.
President Barak then declared that his minimal impairment analysis did not end the Court's inquiry: The army commander also had to prove under the third step that the security benefits of this route were proportionate to the significantly larger extent to which it infringed on human rights. President Barak concluded that the government had not demonstrated this last step of the proportionality test, since the gap between the amounts of security each alternative provided was "minute, as compared to the large difference between a Fence that separates the local inhabitants from their lands, and a fence that does not". (21)
This decision was criticized in Israel for transferring the assessment of alternative measures that is traditionally undertaken in the second step of the Oakes test to the third, in order to evade the deference the Court was required to show military commanders in the second step. (22 ) Strictly speaking, however, President Barak did not replicate the minimal impairment analysis in the last step of the test: Rather, he presented the CPS alternative as less effective than that of the army commander, but significantly more rights-protecting. The last step thus enabled President Barak to strike down the government's approach even though the alternatives presented did hot fully achieve the government's objective.
Although this is the Supreme Court of Israel's first case elaborating on the third step, a potential difficulty of President Barak's approach is apparent in it. President Barak did not undertake a rigorous minimal impairment analysis, and, as a result, it is hard to understand the balance he struck in the final step of his analysis. How much less effective was the CPS route? That is, what degree of security did President Barak consider necessary to compromise in order to achieve proportionality with the route's infringement of constitutional rights? The Court's deferential approach to the minimal impairment analysis in Beit Sourik obscured to some extent the balance President Barak sought to strike in the final step of the Oakes test.
Adalah bas the potential of better illuminating the trade-offs President Barak required in the last step of the proportionality test, because its facts did not require the Court to defer to the state in its minimal impairment analysis. Yet, as we shall see, in this decision President Barak also did not clearly articulate the difference in effectiveness between the measures under consideration in his minimal impairment analysis, and, as a result, the particular compromises in security he called for in the last step of the test remain unclear.
Adalah concerned an amendment to the state's family reunification policy. Since the Palestinian uprising of September 2000, 130,000 Palestinians from the Occupied Territories had been granted entry permits in order to live with their Israeli spouses in Israel following an assessment that they did not pose a security risk. Twenty-six of these residents subsequently became involved in terror attacks against Israel. In response, the Knesset, the Israeli Legislature, enacted the "Citizenship and Entry into Israel Law (Temporary Provision)", which established a blanket ban against Palestinians from the Occupied Territories being granted residency. (23) The Israeli spouses of Palestinians excluded under this law argued that it unjustifiably limited their right to family life and equality.
The Court unanimously concluded that the government had met the minimal impairment test. The alternative at issue was the option of the army providing an individual check of the security risks posed by each Palestinian applicant. President Barak dismissed this alternative because it would not fully achieve the government's objective:
No matter how effective the individual checks can be, they cannot equal the additional security the blanket prohibition provides. It follows that in view of the central value of human life that the law wishes to protect, it is clear that the blanket prohibition will always be more effective. Our conclusion, therefore, is that the individual check does not realize the legislative purpose to the same degree as the blanket protection. (24)
In this passage, President Barak readily accepted that a blanket prohibition provided a more effective means of achieving the government's objective than a system of individual checks. President Barak's brief minimal impairment analysis, however, did not shed light on how much more effective he considered a blanket ban than a well-resourced and rigorous system of individual checks. As in Beit Sourik, President Barak relegated any assessment of the difference between the alternatives at issue to the last step of the proportionality test.
At the last step of the proportionality test, the state presented two arguments as to why the blanket ban's additional effectiveness over a system of individual checks was proportionate to its greater degree of violation of human rights: First, it argued that the army could not gain enough information through individual checks since security risks often prohibited it from entering the Territories to gain intelligence information; (25) second, it argued that even if the army could access sufficient information on the ground, this information would not enable it to properly screen applicants since terrorist organizations often recruited applicants after they had received permits, using threats which would be difficult for applicants to resist. (26)
The Court in Adalah split bitterly in response to these arguments. Justice Cheshin, for the majority, upheld the blanket prohibition as proportionate, while President Barak would have struck it down as disproportionate given the effectiveness of a system of individual checks. For our purposes, what is important to note is the fact that the minimal impairment test was declared met without extensive analysis, making it difficult to assess or compare the balance each judge struck.
Let us begin with Cheshin J. He accepted the government's argument that a war in which terrorists recruited the aid of innocent residents using threats made it extraordinarily difficult for the state to differentiate innocent Palestinian applicants from terrorists. (27) He concluded that in such a context, a blanket ban was proportionate: Democracy did not require Israel to "take upon [itself] risks to life of such magnitude and with such significant chances of their materialization as in our case." (28) Justice Cheshin then admitted, however, that he was "disturbed by the absence of a provision designed for ... exceptions where the Minister of Interior ... [found] a special humanitarian need and when any suspicion of a security risk [had] been allayed". (29) Noting that "[a] policy that does not allow for exceptions is like a ball bearing machine without any lubrication oil" that "will soon explode", (30) he recommended that such a provision be added to the current measure. (31)
It is difficult to reconcile Cheshin J.'s recommendation of an exemption with the Court's previous minimal impairment analysis. (32) If it were possible for the state to draft an exemption for circumstances where "any suspicion of security risk" had been allayed, why was a policy that did not include such an exemption considered minimally impairing? The question for the minimal impairment analysis is whether an alternative exists that would fully accomplish the government's objectives while infringing less on rights. An exemption for vulnerable citizens that does not raise security concerns provides a textbook example of such a method.
President Barak's application of the last step of the proportionality test provokes the same methodological questions. President Barak held that the blanket ban was not proportionate because there were ways for the state to bolster individual checks so that the security they provided, while less than that of a blanket ban, was more proportionate to their infringement of rights. For example, he argued that a permit should not be granted if (1) the person to whom it was issued was "likely" to create a security risk to Israel, or (2) if it was not possible to enter the territories to do a security check, or (3) if there was "de facto no real possibility of receiving relevant information from an individual check of a foreign spouse because of the security position". (33) He also stressed the importance of the state providing a humanitarian exemption "in individual cases where there [were] humanitarian reasons of great weight". (34)
These suggestions are also difficult to reconcile with the Court's minimal impairment analysis. Recall that the state argued that it was not possible for it to receive relevant information from an individual check, since terrorist organizations recruited individuals after they had received permits. In such a case, a condition that enabled the state to withhold permits if there was "de facto no real possibility of receiving relevant information" from individual checks would presumably enable the state to refuse permits all of the time, and thus would be as effective as a blanket ban. Similarly, the state argued that it should not be required to conduct individual checks when it could not enter the Territories to gain security information, and President Barak reassured the state that it was not required to issue permits in such circumstances. Thus, even though President Barak declared that "democracy concedes a certain amount of additional security in order to achieve an incomparably larger addition to family life and equality", (35) it is unclear whether he did in fact concede significant security concerns in Adalah.
A Summary of President Barak's Approach
Beit Sourik and Adalah demonstrate that the approach President Barak pioneered for the last step of the proportionality test has a number of strands. First, it calls for a particular methodology: It requires the court to reconsider the alternatives proposed in the minimal impairment analysis and assess whether the greater effectiveness of the government's measure--compared to the lesser effectiveness of the proposed alternative measure--is proportionate to its greater infringement on rights. Thus, in Beit Sourik, the Court reconsidered the CPS alternative, and, in Adalah, President Barak reconsidered the effectiveness of a rigorous system of individual checks. For President Barak, the last step of the proportionality test therefore enabled the court to reconsider and effectively sanction alternatives that failed the minimal impairment test. (36)
This innovation reflects a particular normative orientation, a conviction that the state's means must be deeply scrutinized, that not all "sufficiently important" objectives should be achieved in full. For President Barak, this orientation requires the Oakes analysis to continue beyond the minimal impairment stage. Yet, as discussed above, President Barak's application of this step in Beit Sourik and Adalah raise questions about the necessity of reaching this test in all cases, since in both cases it is possible that the Court's factual determinations were more suitable to a minimal impairment analysis (in other words, had the Court not been required to show deference to the army commander's route in Beit Sourik, it might have found the CPS route equally effective, as the CPS argued; similarly, the blanket ban in Adalah could have failed the minimal impairment analysis when compared to the system of individual checks President Barak proposed in the third step). Thus, even though President Barak pioneered a new methodology for the last step of the proportionality test which is theoretically distinct from the inquiry undertaken in the second step, his application of this methodology at times infused this final step with aspects of the minimal impairment analysis.
In the next section, I consider which strands of this complex web the Supreme Court of Canada incorporated in Hutterian Brethren.
III THE THIRD STEP COMES TO CANADA IN HUTTERIAN BRETHREN
In Hutterian Brethren (37) the Supreme Court of Canada considered whether to adopt the methodology President Barak developed in Israel. The facts of Hutterian Brethren provide fertile ground for comparison with Adalah. Like Adalah, Hutterian Brethren addresses the extent to which security concerns justify legislation that infringes constitutional rights by not recognizing exemptions for minority groups: In Adalah, the legislation at issue was a blanket ban on entry permits for Palestinians seeking to live with their Israeli spouses in Israel; in Hutterian Brethren, the legislation at issue was a mandatory requirement that all drivers' licenses include a photograph, which terminated an exemption previously offered to religious believers. (38)
The Court's response to President Barak's methodology was multifaceted. In what follows, I argue that McLachlin C.J.C. affirmed President Barak's conception of the diminished role the minimal impairment test should play without correspondingly embracing the particular concerns he called for the third step to address. As a result, she did not address questions President Barak considered central to the proportionality analysis. Justice Abella, in contrast, affirmed the significance of the third step without making clear why this case required her to reach it: Her treatment of the facts suggested that a straightforward minimal impairment analysis (even a less rigorous one, as set out in the Israeli cases) would resolve the dispute in the Hutterian Brethren's favour. Justice LeBel's dissent, in contrast, most fully invoked the distinctive methodology President Barak envisioned for the final step of the proportionality test.
Chief Justice McLachlin's Analysis
Chief Justice McLachlin began her discussion of the third step of the Oakes test by acknowledging that Canadian courts had thus far not extensively applied this step. She then cited President Barak's explanation of the distinct role the third step played and declared that this conception should guide Canadian courts in the future. I reproduce this critical passage in full:
It may be questioned how a law which has passed the rigours of the first three stages of the proportionality analysis--pressing goal, rational connection, and minimum impairment--could rail at the final inquiry of proportionality of effects. The answer lies in the fact that the first three stages of Oakes are anchored in an assessment of the law's purpose. Only the fourth branch takes full account of the "severity of the deleterious effects of a measure on individuals or groups". As President Barak explains: Whereas the rational connection test and the least harmful measure test are essentially determined against the backdrop of the proper objective, and are derived from the need to realize it, test of proportionality (stricto sensu) examines whether the realization of this proper objective is commensurate with the deleterious effect upon the human right.... It requires placing colliding values and interests side by side and balancing them according to their weight, [p.374] In my view, the distinction drawn by Barak is a salutary one, though it has hot always been strictly followed by Canadian courts. (39)
In this passage, McLachlin C.J.C. affirmed President Barak's assertion that the minimal impairment test did not enable courts to take "full account of" the impact of infringements on individual rights; only the last step of the Oakes test addressed this critical question.
Let us now turn to McLachlin C.J.C.'s application of the last two steps of the Oakes test to assess the extent to which she replicated President Barak's particular methodology. First, we must consider the alternatives McLachlin C.J.C. considered in her minimal impairment analysis, since President Barak required these alternatives to be reconsidered in the last step of the test.
Chief Justice McLachlin rejected two potential alternatives to Alberta's termination of an exemption in her minimal impairment analysis. First, she rejected the option of Alberta issuing the Hutterites non-photo licenses specially marked "not to be used for identification purposes". (40) The Hutterites argued that this alternative would fully achieve Alberta's objectives because it would prevent licenses from being used as "breeder" documents for multiple forgeries, the province's central security concern. (41) Chief Justice McLachlin concluded that this alternative was less effective than Alberta's regulation, asserting that "the only way to reduce that risk as much as possible is through a universal photo requirement.'' (42) Chief Justice McLachlin similarly rejected the Hutterites' argument that the religious-based exemption Alberta had previously provided would not undermine the government's objective since few were likely to request it: "[this argument] assumes that some increase in the risk and impairment to the government goal may occur, and hence does not assist at the stage of minimal impairment.'' (43)
In their dissenting opinions, Abella and LeBel JJ. criticized McLachlin C.J.C.'s minimal impairment analysis for being overly strict: Instead of considering whether the proposed alternatives fit within the "range of reasonable alternatives" the Court had previously affirmed this test required, (44) McLachlin C.J.C. asserted that, if the alternative imposed any increase in risk, it "did not assist" at the minimal impairment stage. (45) For our purposes, it is worth noting that McLachlin C.J.C. drew on President Barak's approach to affirm her more strict approach to the minimal impairment test:
As Aharon Barak, former President of the Supreme Court of Israel, puts it, "the rational connection test and the least harmful measure [minimum impairment] test are essentially determined against the background of the proper objective, and are derived from the need to realize it": Proportional Effect: The Israeli Experience" (2007), 57 U.T.L.J. 369 at p.374. President Barak describes this as the "internal limitation" in the minimum impairment test, which "prevents it [standing alone] from granting proper protection to human rights" (p. 373). The internal limitation arises from the fact that the minimum impairment test requires only that the government choose the least drastic means of achieving its objective. Less drastic means which do not actually achieve the government's objective are not considered at this stage. (46)
Chief Justice McLachlin thus adopted President Barak's conception of the limited role the second step plays in rights protection to support her lack of scrutiny of the risks these alternatives each posed. And, like President Barak, she inferred that the third step would enable her to conduct a less restricted assessment of these alternatives.
Chief Justice McLachlin's application of the third step, however, departed significantly from that of President Barak. Recall that President Barak reconsidered at this stage the alternatives that had met the minimal impairment analysis, and quantified the difference in effectiveness between these alternatives and the impugned measure. At this stage, McLachlin C.J.C. did not reconsider the Hutterite claimants' two proposals from this standpoint. Instead, she effectively repeated her minimal impairment analysis by stating that "requiring that all licence holders are represented by a digital photo in the data bank will accomplish these security-related objectives more effectively than would an exemption for an as yet undetermined number of religious objectors.'' (47) Chief Justice McLachlin then explicitly declined to quantify the contrast in effectiveness between these alternatives: "Though it is difficult to quantify in exact terms how much risk of fraud would result from permitted exceptions, it is clear that the internal integrity of the system would be compromised.'' (48) Thus, after affirming President Barak's assertion that the minimal impairment test contained an "internal limitation" that prevented it from fully protecting rights, McLachlin C.J.C. declined to conduct the very assessment President Barak called for in the third step to address this limitation.
Chief Justice McLachlin provided one reason for her reluctance to undertake this assessment. She expressed concern that judicial scrutiny of Alberta's regulation might impede the enactment of legislation that served the public interest:
Legislatures can only be asked to impose measures that reason and the evidence suggest will be beneficial. If legislation designed to further the public good were required to await proof positive that the benefits would in fact be realized, few laws would be passed and the public interest would suffer. (49)
Chief Justice McLachlin's concern that judicial scrutiny of the feasibility of an exemption would inappropriately restrict policy formulation has no parallel in President Barak's foundational cases on this step: In Beit Sourik, President Barak seemed to turn to the third step in order to avoid the deference to the military the Court had built into its minimum impairment analysis, whereas in Adalah, President Barak and Cheshin J. unanimously concluded, after scrutinizing the risks posed by individual security checks, that the impugned measure should contain a humanitarian exemption.
Chief Justice McLachlin's concern with protecting policy formulation in these passages is reminiscent of a line of Canadian cases that call for deference to legislative choice. Since the minimal impairment test was articulated in Oakes to require a high standard of rights protection, (50) the Court has called for deference when considering, for example, laws that protect vulnerable groups, (51) laws premised on complex social science evidence, and laws that allocate scarce resources. (52) Critics of this deferential approach have argued that it has no foundation in the language or structure of the Charter; while supporters assert that it expresses appropriate respect for the legislature's representative function. (53) Chief Justice McLachlin's opinion seems to anchor this deferential approach within the last step of the proportionality test--a considerably different approach than that which President Barak's judgments envisioned.
Justice Abella's Analysis
Justice Abella accepted McLachlin C.J.C.'s assertion that the third step had a critical role to play in this case, asserting that, "[i]n my view, most of the heavy conceptual lifting and balancing ought to be done at the final step--proportionality. Proportionality is, after all, what s. 1 is about.'' (55) As part of her introduction to this step, Abella J. cited President Barak's article, but she did not discuss the particular methodology he pioneered. (55) Nevertheless, in this section I consider whether her approach to the third step is consistent with that of President Barak.
Let us begin with Abella J.'s minimal impairment analysis. Justice Abella suggested that Alberta's measure did not pass the minimal impairment test: It is "difficult to conclude that [Alberta's complete ban] minimally impairs the Hutterites' religious rights." (56) She then stated, however, that "[t]he minimal impairment stage should not ... be seen to routinely end the s. 1 analysis. It is possible, for example, to have a law which is not minimally impairing but may, on balance, given the importance of the government objective, be proportional.'' (57) She thus asserted that, despite her doubts about whether Alberta's measure passed the
minimal impairment test, it was appropriate to consider whether it met the final step of the proportionality analysis.
Applying this step, Abella J. concluded that Alberta's regulation did not meet this test since its "salutary effects" were "at best marginal". (58) She provided several reasons for this conclusion. First, she noted that facial recognition technology was "hardly foolproof" since it required a human investigator to "eyeball" pictures to determine if they were the same person. (59) Second, she stressed that the government had provided no evidence that the exemption it had previously offered "dramatically obstruct[ed]" its objective. (60) Finally, she noted that there were currently 700,000 unlicensed people in Alberta who would not be in the databank system, and only a few hundred potential religious objectors. (61) In the course of this analysis, Abella J. alternately described Alberta's amendment as lacking "any discernible impact", (62) consisting of a "web of speculation", (63) and "slight and largely hypothetical". (64) Justice Abella concluded that given the speculative nature of these benefits, Alberta's legislation was unconstitutional unless it provided an exemption on religious grounds. (65)
Justice Abella's application of the third step fits awkwardly within President Barak's framework. If the salutary effects of Alberta's regulation truly "lacked any discernible impact", then this measure should fail at the minimal impairment stage in both the Canadian and Israeli articulations of this step. (Recall that President Barak affirmed that marginal differences were not decisive to the minimal impairment analysis. (66) He turned to the third step in Adalah in order to weigh the proportionality of a measure whose salutary effects were "not slight and not hypothetical". (67)) If President Barak had accepted Abella J.'s findings of fact, his approach would likely have required him to strike the measure down at this step. In contrast, Abella J. set out an approach in which the last step of the Oakes test displaced rather than followed the minimal impairment test, (68) even though the benefits the government's measure provided over the proposed alternatives were not apparent to her.
Justice LeBel's Analysis
Justice LeBel wrote a separate dissenting judgment, supported by Fish J., in which he agreed with Abella J. that Alberta's infringement of the Hutterites' Charter rights was unjustified. (69) Justice LeBel took issue, however, with McLachlin C.J.C.'s new emphasis on the last step of the Oakes test--and, presumably, with Abella J.'s affirmation of this emphasis. (70) As LeBel J. stated at the outset, "I have some concerns as to how the reasons of the Chief Justice structure and apply the method of justification of s. 1, in other words, the Oakes test." (71) In response, LeBel J. proposed an alternative approach to the Oakes test which seems to track the key features of President Barak's methodology.
Justice LeBel began by critiquing McLachlin C.J.C.'s application of the minimal impairment test:
For all practical purposes, the reasons of the Chief Justice treat the law's objective as if it were unassailable once the courts engage in the proportionality analysis. No means that would not allow the objective to be realized to its fullest extent could be considered as a reasonable alternative. (72)
In this passage, LeBel J. suggested that McLachlin C.J.C.'s minimal impairment analysis had been too strict. In contrast, he proposed that "alternative solutions should not be evaluated on a standard of maximal consistency with the stated objective. An alternative measure might be legitimate even if the objective could no longer be obtained in its complete integrity." (73) Justice LeBel thus suggested that the Court could effectively sanction alternative measures that did not fully achieve the state's objectives.
As we have seen, President Barak turned to the third step in order to carve out a similar space in the Israeli proportionality test. Justice LeBel addressed the question of whether this inquiry should take place in the second or third step of the test in the following passage:
It may be tempting to draw sharp analytical distinctions between the minimal impairment and balancing of effects parts of the Oakes test. But determining whether a measure limiting a right successfully meets the justification test should lead to some questioning of the purpose in the course of the proportionality analysis, to determine not only whether an alternative solution could reach the goal, but also to what extent the goal itself out to be realized. This part of the analysis may confirm the validity of alternative, less intrusive measures. (74)
In this passage, LeBel J. presented two questions for the Court to consider in the course of its s.1 analysis: (1) Does the alternative measure fully achieve the government's goal? (2) If not, should this goal itself be realized in full, or should the court confirm "alternative, less intrusive measures"? This process seems to me to be identical to the process President Barak set out in Beit Sourik and Adalah. Like President Barak, LeBel J. made clear that even if the alternative measures considered under the minimal impairment test did not fully achieve the government's objective, the Court might nevertheless sanction them on the basis that they infringed rights less. Thus, LeBel J. seemed to contemplate a scenario in which a measure met the minimal impairment test (because the proposed alternative did not fully achieve the government's objective), but was considered disproportionate under the final Oakes step given the extent of the Charter infringement.
Jusice LeBel did not clearly identify the two steps I set out above. Instead, he discouraged the court from drawing "sharp analytical distinctions" between these steps. Later in his judgment, he similarly asserted that the Court should assess "the objectives, the impugned means and the alternative means together, as necessary components of a seamless proportionality analysis." (75) It could be argued that LeBel J.'s conception of a "seamless proportionality analysis" is quite different from President Barak's delineation of the contrasting roles played by each step. Nevertheless, this "seamless analysis" would not need to be undertaken if a court, during its minimal impairment analysis, considered the alternative measure equally capable of fulfilling the government's objective. The two-step process LeBel J. called for would logically apply only once the Court concluded that the infringing measure met the minimal impairment test. Thus, the process LeBel J. called for seems remarkably similar to the methodology President Barak elaborated in Adalah.
Justice LeBel's application of his methodology supports this interpretation of his judgment. Justice LeBel concluded that the issue at hand could be addressed by Alberta providing an exemption to the Hutterite claimants, and he provided the following reason:
A limited restriction on the Province's objective of minimizing identity theft would not unduly compromise this aspect of the security of Alberta residents and might lie within the range of reasonable and constitutional alternatives. (76)
Justice LeBel seemed to acknowledge in this passage that providing this exemption might compromise the security of Alberta's residents to some extent. Thus, it seems likely that if LeBel J. had made a "sharp analytical distinction" between the second and third steps of the Oakes test, he would have found that withholding the exemption was the only way for Alberta to fully achieve its objective, but providing this exemption would not "unduly" compromise these objectives. I read the word "unduly" as marking LeBel J.'s transition from the minimal impairment test (which the government met) into a "seamless proportionality analysis" (in which he would have struck down the impugned measure).
To summarize, even though LeBel J. elaborated this approach without referring to President Barak's article, both LeBel J. and President Barak stressed that the proportionality test required the Court to consider the feasibility of measures that did not enable the state's objective to be realized "to its fullest extent". Ironically, neither McLachlin C.J.C. nor Abella J. clearly affirmed this position, even though they cited President Barak more extensively (McLachlin C.J.C. rejected in the last step of her analysis any alternatives that would undermine Alberta's objectives, while Abella J. suggested that an exemption would not impair Alberta's objectives since the benefits of withholding this exemption were speculative).Thus, even though LeBel J. rejected McLachlin C.J.C. and Abella J.'s structuring of the Oakes test--which explicitly drew on President Barak's approach--his judgment seems to best replicate President Barak's distinctive methodology.
The Supreme Court of Canada is of course not bound to follow President Barak's methodology or incorporate it to the letter. Nevertheless, the Court's complex response to President Barak's article raises the question of whether the Israeli approach should be adopted in the Canadian constitutional context.
President Barak's methodology has its critics. The two main criticisms of his approach are (1) that it transfers the minimal impairment test to the last step of the Oakes analysis, (77) and (2) that the "balancing" it calls for is too subjective. (78) A careful reading of Beit Sourik and Adalah suggests, however, that these two concerns are interconnected. As discussed throughout Part II, President Barak's approach to the last step of the Oakes test seems most subjective when it is not preceded by a rigorous minimal impairment analysis. This is because, for President Barak, the third step requires the Court to reconsider the alternatives that were deemed not to achieve fully the state's objectives in the minimal impairment analysis. Without a clear answer in the second step to the question of how far these alternatives strayed from this mark, it is very difficult to understand what is being balanced in the final step, or to evaluate different judicial attempts to strike this balance.
Of course, a court that conducted a more rigorous minimal impairment analysis would not necessarily reach the final step of the Oakes step in all cases. Although President Barak declared that the third step of the proportionality test was critical to rights protection, this is not the same as saying that it should, as Abella J. put it, "routinely end the s. 1 analysis". (79) If the third step is reached when it is not warranted, because the alternatives at issue in the minimal impairment analysis equally achieve the government's objective, then the questions President Barak required to be asked in the final step of the analysis become distorted.
Nevertheless, it seems to me that if the government successfully demonstrates that the infringing measure is more effective than any alternatives under consideration in the second step, President Barak's attention to the third step is, as McLachlin C.J.C. affirmed in Hutterian Brethren, "salutary". (80) In Hutterian Brethren, for example, such an approach would have required the Court to engage in a rigorous assessment of the feasibility of an exemption at both the second and third steps of the proportionality analysis. It is possible that the Court could have responded to Alberta's particular concerns by providing an exemption within its minimal impairment analysis, making any consideration of the final step unnecessary. (81)
If the Court had reached the last step, however, Adalah provides an instructive example of the conclusions the Court might have drawn at this final stage. It is striking that the Supreme court of Israel in Adalah unanimously called for a humanitarian exemption, going so far as to note that a policy that does not allow for exemptions "will soon explode"; (82) yet the Supreme Court of Canada, in a significantly less fraught context, (83) held that an exemption would impose too high a risk to the state's security objectives. Greater awareness of the factual matrix from which President Barak's framework emerged would enable all who are drawn to his ideas to engage more deeply with his underlying concerns.
(1) Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s.1.
(2)  1 S.C.R. 103 [Oakes].
(3) Ibid. at para. 69.
(4) The Court's subsequent elaboration of the minimal impairment test is discussed in the text accompanying notes 50-53.
(5) This phrasing reflects the Supreme Court's later formulation of this step. In Oakes, supra note 2 at paras. 70-71, Dickson C.J.C. described the third step as requiring "proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which bas been identified as of 'sufficient importance.'" In Dagenais v. Canadian Broadcasting Corp,  3 S.C.R. 835 at para. 94 [Dagenais], the Court reformulated this test to require "both the underlying objective of a measure and the salutary effects that actually result from its implementation be proportional to the deleterious effects the measure has on fundamental rights and freedoms."
(6) See Sujit Choudhry, So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1" (2006) 34 S.C.L.R. (2d) 501 at 501-2.
(7) In Dagenais, supra note 5, the Court discussed this step extensively, but did not reach this step in its application of the proportionality test to the common law test for publication bans. Chief Justice Lamer concluded instead that it was hOt "necessary ... to consider the question of whether the salutary effects of the publication ban outweighed the deleterious impact the ban had on freedom of expression" since reasonable alternative measures existed to achieve the objective, such as adjourning the trial, changing venues, or sequestering jurors (at paras. 78-79).
(8) Peter Hogg concludes that the third step "has no work to do, and can safely be ignored." Constitutional Law of Canada, 4th ed. (Scarborough, Ont.: Thomson Canada Limited, 2003) at 816-817. Frank Iacobucci similarly considered this step to require only a "resume of previous analysis" in "Judicial Review by the Supreme Court of Canada Under the Canadian Charter of Rights and Freedoms: The First Ten Years" in David M. Beatty, ed., Human Rights and Judicial Review (Dordrecht: Martinus Nijhoff, 1994) 110 at 121. See also P. Blanche, "The Criteria of Justification Under Oakes" (1992) 20 Man. L.J. 437 at 443: "The third step has no real weakening impact on the first two steps. It comes too late in the process ... it seems that it is a step that should almost never be reached."
(9) Beit Sourik Village Council v. Israel (2006), H.C. 2056/04, 2 Judgments of the Israel Supreme Court: Fighting Terrorism with the Law [Beit Sourik].
(10) Adalah v. Minister of the Interior (2006), H.C. 7052/03 [Adalah]. The framework for President Barak's justification analysis in both cases was s. 8 of lsrael's "Basic Law: Human Dignity and Freedom", 1454 Sefer Ha-Chukkim (10 March 1994) at 90, which stipulates that "there shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required."
(11) Aharon Barak, "Proportional Effect: The Israeli Experience" (2007) 57 U.T.L.J. 369. This issue honoured Iacobucci J.'s retirement from the Supreme Court of Canada. It also included an article by Dieter Grimm testifying to the significance of the third step of Oakes in German constitutional adjudication. Dieter Grimm, "Proportionality in Canadian and German Constitutional Jurisprudence" (2007) 57 U.T.L.J. 383.
(12) 2009 SCC 37,  S.C.J. No. 37 [Hutterian Brethren].
(13) Section 14(1)(b) of Alberta's previous Operator Licensing and Vehicle Control Regulation, Alta. Reg. 320/2002 gave the Registrar discretion to determine in what circumstances a photo was required: "Before issuing or renewing an operator's license ... the Register ... may require an image of the applicant's face, for incorporation in the license..." This discretion was eliminated by s. 3 of the Operator Licensing and Vehicle Control Amendment Regulation, Alta. Reg. 137/2003, which replaced "may" from s. 14(1 )(b) with "must." R.v. Hutterian Brethren of Wilson Colony, 2007 ABCA 160, 283 Di.R. (4th) 136 at para. 4.
(14) Barak, supra note 11 at 373.
(15) Ibid. at 375.
(16) The Supreme Court of Israel heard this case as the High Court of Justice, in which capacity it exercises review over actions of Israeli authorities in the Occupied Territories. See Jason Litwack, "A Disproportionate Ruling for All the Right Reasons: Beit Sourik Village Council v. The Government of Israel" (2006) 31 Brook. J. Int'l L. 857 at 869.
(17) Beit Sourik, supra note 9 at para. 16.
(18) Ibid. at para. 18.
(19) Ibid. at para. 58.
(20) Ibid. at para. 47.
(21) Ibid. at para. 61. In Beit Sourik, President Barak ruled on the proportionality of six different sections of the fence, but drew the conclusion that each section of the route at issue was minimally impairing but hOt proportionate in effects. This quotation is drawn from his treatment of the "Western Part" of the fence, ibid. at paras. 51-62.
(22) For example, Moshe Cohen-Eliya argues that President Barak's deference to the military's opinion in the second step "transform[ed] the minimal impairment test, the core of the proportionality test, into a test that is emptied of its contents?' Moshe Cohen-Eliya, "The Formal and Substantive Meanings of Proportionality in the Supreme Court's Decision Regarding the Security Fence" (2005) 38 Isr. L. Rev. 262 at 263. Jason Litwack similarly argues that, "while the Court purported to show deference to the military, in reality, it failed to do so." Litwack, supra note 16 at 890.
(23) Although the Court referred to this legislation as establishing a blanket ban, it did in fact authorize the state to grant a permit under two conditions: (1) if a permit would prevent the separation of a child aged 14 or under from a parent who resided in Israel legally, or (2) if the Palestinian spouses were women over the age of 25 or men over the age of 35. Adalah, supra note 10 at para. 91.
(24) Adalah, ibid. at para. 89.
(25) Ibid. at para. 111.
(27) Ibid. at para. 8.
(28) Ibid. at para. 131.
(29) Ibid. at para. 126.
(30) Adalah, ibid.
(32) Justice Cheshin echoed President Barak's conclusion that a blanket prohibition was minimally impairing. Ibid. at para. 106.
(33) Ibid. at para. 113.
(34) Ibid. at para. 95.
(35) Ibid. at para. 110.
(36) This particular methodology is not always acknowledged by Israeli academics. For example, Na'ama Carmi criticized President Barak's proposal in Adalah for failing to achieve the same degree of security as the blanket ban. Na'ama Carmi, "The Nationality and Entry into Israel Case before the Supreme Court of Israel" (2007) 22 Israel Studies Forum 26 at 36. This criticism does not recognize the unique standard of President Barak's "proportionate effects" test: The measures he proposed did not need to achieve the state's objective to the same extent as the impugned measure. Rather, their lesser effectiveness had to enable them to strike a better balance between the state's security objectives and the rights at stake than the government's infringing measure.
(37) Supra note 12.
(38) Alberta repeatedly stressed in its submissions to the Court that the impugned security measures were designed to address newfound threats to the public from "criminals and terrorists". Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 at paras. 19 and 26,  S.C.J. No. 37 (Factura of the Appellant) [Hutterian Brethren Factum]. Chief Justice McLachlin did not directly cite Alberta's concern with terrorism in her judgment, describing Alberta's objective instead as "ensuring the integrity of the driver's licensing system so as to minimize identity theft associated with that system". Hutterian Brethren, supra note 12 at para. 47.
(39) Hutterian Brethren, ibid. at para 76.
(40) Ibid. at para. 59.
(41) Alberta v. Hutterian Brethren of Wilson Colony, [2009l S.C.J. No. 37 (Oral argument, Respondent).
(42) Hutterian Brethren, supra note 12 at para. 59.
(44) RJR-MacDonald Inc. v. Canada (Attorney General),  3 S.C.R. 199 at para. 160, cited by McLachlin C.J.C. in Hutterian Brethren, supra note 12 at para. 54.
(45) For Abella J.'s critique of McLachlin C.J.C.'s minimal impairment analysis, see Hutterian Brethren, supra note 12 at para. 147. For LeBel J.'s critique, see text accompanying note 72, below.
(46) Hutterian Brethren, supra note 12 at para. 54.
(47) Ibid. at para. 80.
(48) Ibid. at para. 81.
(49) Hutterian Brethren, ibid. at para. 85. In her assessment of the deleterious effects of the law, McLachlin C.J.C. likewise concluded that that the Hutterites' perspective "must be considered in the context of a multicultural, multi-religious society where the duty of state authorities to legislate for the general good inevitably produces conflicts with individual beliefs." Ibid. at para. 90. Thus, even in the context of a deleterious effects analysis which is intended to focus on the impact of the infringing measure on the claimant, McLachlin C.J.C. expressed concern about restricting policy formulation.
(50) Chief Justice Dickson called for "persuasive and cogent evidence" that the measure impaired rights "as little as possible". Oakes, supra note 2 at paras. 68 and 70.
(51) R. v Edwards Books and Art Ltd.,  2 S.C.R. 713 at para. 136 [Edwards Books].
(52) See Hogg, supra note 8 at 815. For a discussion of how the "reasonableness" approach lost its progressive origins since Edwards Books, see Timothy Macklem & John Terry, "Making the Justification Fit the Breach" (2000) 11 S.C.L.R. (2d) 575 at 593.
(53) Lorraine E. Weinrib criticizes the "reasonableness" approach for failing to invest rights with special normative status: "Far from granting rights a priority in the equation, LaForest J.'s argument assimilates rights to other values in the legislative calculus and, having denied their distinctiveness, dismisses any special role for the courts in their protection. His scales accord no special weight to the guaranteed rights." "Canada's Charter of Rights: Paradigm Lost? (2002) 6 Rev. Const. Stud. 119 at 164. See also Macklem & Terry, supra note 52 at 593, and Errol Mendes, "The Crucible of the Charter: Judicial Principles v. Judicial Deference in the Context of Section 1" (2005) 27 S.C.L.R. 47 at 90. Richard Moon, "Justified Limits on Free Expression: The Collapse of the General Approach to Limits on Charter Rights" (2002) 40 Osgoode Hall L.J. 337 at 358-59.
(54) Hutterian Brethren, supra note 12 at para. 149.
(55) Ibid. at para. 151.
(56) Ibid. at para. 148.
(57) Ibid. at para. 149.
(58) Ibid. at para. 115.
(59) Ibid. at para. 155.
(60) Ibid. at para. 156.
(61) Hutterian Brethren, ibid. at para. 158.
(62) Ibid. at para. 115.
(63) Ibid. at para. 154.
(64) Ibid. at para. 162. Justice Abella also described the measure as "only marginally useful" to the prevention of identity theft, ibid., and without "any significance" in enhancing the objective, ibid. at para. 174. She concluded that an exemption only "slightly impaired" the objective, "if at all". Ibid. at para. 175.
(65) Ibid. at para. 175.
(66) Barak, supra note 1l at 375.
(67) in Adalah, President Barak described the risks posed by a policy of individual checks as "not slight or hypothetical". Adalah, supra note 10 at para. 110.
(68) This is clear from Abella J.'s assertion, supra note 57, that "it is possible ... to have a law which is not minimally impairing but may, on balance, given the importance of the government objective, be proportional." This assertion is at odds with a traditional Oakes analysis, which ends if a measure does hot meet the minimal impairment test. See Peter Hogg, supra note 8 at 816.
(69) Justice Fish stated that, "Like Justice LeBel, and for the reasons he has given, I agree with Justice Abella and would dispose of the appeal as they both suggest." Hutterian Brethren, supra note 12 at para. 203.
(70) Justice LeBel did not elaborate on his disagreement with Abella J. Instead, he expressed agreement with "the reasons of Justice Abella and with the substance of her views on the lack of justification for the regulation under s. 1." Ibid. at para. 200.
(71) Ibid. at para. 179.
(72) Ibid. at para. 197.
(73) Hutterian Brethren, ibid. at para. 195.
(74) Ibid. at para. 192.
(75) Ibid. at para. 199 (emphasis added).
(76) Hutterian Brethren, ibid. at para. 201.
(77) Moshe Cohen-Eliya, supra note 22.
(78) Na'ama Carmi reflected that the disagreement between the judges in Adalah "gives the impression that there are no clear principles or standards guiding the decision," but only "subjective estimation and assessment". Na'ama Carmi, supra note 36 at 33.
(79) Hutterian Brethren, supra note 12 at para. 148.
(80) Ibid. at para 76.
(81) For an elaboration of this argument, see Sara Weinrib, "An Exemption for Sincere Believers: The Challenge of Alberta v. Hutterian Brethren of Wilson Colony", 56 McGill L.J. (forthcoming in 2011). I argue in this paper that Alberta's central concern in this case involved whether it was possible to draft an exemption that would cohere with the Charter's guarantee of freedom of religion in s. 2(a). If the Court had responded to this concern by clarifying the application of its previous jurisprudence on s. 2(a) to this context, it would have enabled Alberta to draft an exemption that did not undermine its security objectives. It would then have been unnecessary for the Court to turn to the proportionate effects test in this instance.
(82) Adalab, supra note 10 at para. 126.
(83) Alberta's objective was to bolster security generally in an age of crime and terror (Hutterian Brethren Factum, supra note 38) while the legislation in Adalab responded to a particular armed conflict in which spouses of Israeli citizens had taken part in terrorist attacks against Israel. Furthermore, the conflict at issue in Adalab made it extremely difficult for the state to identify those who formed a threat, since applicants could be recruited to terrorist organizations after the state granted them entry into Israel. In contrast, in Hutterian Brethren, Alberta admitted in its factum to the Supreme Court that its regulation infringed the rights of a community that clearly did not pose a threat of terrorism: "We note that our concern is not the granting of an exception to people who assert a religious objection to the photograph requirement as such. Out concern is instead the opportunities that an exemption affords wrongdoers." Ibid. at para. 65.
* The author wishes to thank the Senior Board Editors of the University of Toronto Faculty of Law Review for their helpful comments on prior drafts of this article. Student-at-Law, Constitutional Law Branch, Ministry of the Attorney General of Ontario.
BY SARA WEINRIB, The opinions expressed in this paper are the author's alone and do not represent the views of the Government of Ontario.