Proportionality in Canadian and German Constitutional Jurisprudence

Abstract

one. The Constitutional Court does not recognize a hierarchy among the various fundamental rights. The balance, therefore, must be concrete or, in the Canadian terminology, contextual. One question is how deeply the right is infringed. Another question is how serious the danger for the good protected by the law is, and how likely it is that the danger will materialize. Furthermore, the degree to which the impugned law will protect the good against the danger must be measured against the degree of intrusion. Yet this concept is by no means alien to the Canadian Court. Already in Oakes, Chief Justice Dickson admitted that a full protection of fundamental rights is impossible without the third step. ‘Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve.’ The similarity to the German approach becomes even clearer in Thomson Newspapers v. Canada (A.G.), where the Court states that the third step of the proportionality test performs a role fundamentally distinct from the previous steps: The focus of the first and second steps of the proportionality analysis is not the relationship between the measures and the Charter right in question, but rather the relationship between the ends of the legislation and the means employed. . . . The third stage of the proportionality analysis provides an opportunity to assess . . . whether the benefits which accrue from the limitation are proportional to its deleterious effects as measured by the values underlying the Charter. The explanation for this gap between the Court’s reasoning and its practice must be sought in the fact that the elements relevant to the third step have already been dealt with in previous stages. The importance of the objective has generally been determined in the preliminary step, where the Court not only ascertains the purpose of the law but asks, in addition, whether it is sufficiently ‘pressing and substantial’ to justify a limitation of Charter rights. The effects of the infringement on the beneficiaries of the protection are considered in connection with the existence of an infringement in the two prior steps of the test, so that not much remains to be said when the Court reaches the third step. Consequently, the source of unconstitutional limitations always has been found in earlier stages. The outside observer gets the impression that the Canadian Supreme Court avoids the third step out of fear that a court might make policy decisions at this stage rather than legal decisions. Constitutional scholars 40 Oakes, supra note 2 at para.71. 41 [1998] 1 S.C.R. 877 [Thomson]. 42 Ibid. at para. 125. 394 UNIVERSITY OF TORONTO LAW JOURNAL