10 - Rational connection

Summary

The content of the rational connection test

What is required by the rational connection (fit, geeignetheit, appropriateness, suitability) test? The requirement is that the means used by the limiting law fit (or are rationally connected to) the purpose the limiting law was designed to fulfill. The requirement is that the means used by the limiting law can realize or advance the underlying purpose of that law; that the use of such means would rationally lead to the realization of the law’s purpose. It is therefore required that the means chosen be pertinent to the realization of the purpose in the sense that the limiting law increases the likelihood of realizing its purpose. Accordingly, if the realization of the means does not contribute to the realization of the law’s purpose, the use of such means would be disproportional. Consider the following examples:

1. According to legislation in both Canada and South Africa, when an individual is in possession of an illegal drug it is presumed that the possession is for the purpose of trafficking. Both the Supreme Court of Canada and the Constitutional Court of South Africa have ruled that there is no rational connection between the purpose of the “war on drugs” and the legislative determination that the mere possession of a small amount of an illegal drug may promote the war on drugs. As the legislation disproportionally limited the constitutionally protected right to the presumption of innocence, both laws were held unconstitutional. In the Canadian case, Chief Justice Dickson has noted that there should be a rational connection between the possession of the illegal drug and the presumption that the possession was with the intent to sell. Such a rational connection does not exist when the amount in question is either very small or negligible.

2. In South Africa, the Constitutional Court examined a statute which established a presumption regarding unlawful weapons. According to the presumption, any person “present at or occupying” a premises “shall be presumed” to be in possession of the unlawful weapons found in the premises “until the contrary is proved.” The Court held the law to be unconstitutional because it disproportionally limits the constitutional right to the presumption of innocence. In particular, the Court noted that there is no rational connection between the purpose of the struggle against the illegal possession of weapons and one’s random presence at the location where such unlawful weapons were found

3. In South Africa, the Constitutional Court examined a statute which denied same-sex couples a number of benefits afforded to married couples. The Court ruled that the purpose of the law was proper, as it was meant to protect the traditional family structure. However, the Court ruled that there is no rational connection between that purpose and the means of denying the benefits.

4. In Germany, a statute prescribed that in order to receive a hunting permit adequate knowledge of the use of firearms was required. It was argued that the law was unconstitutional as it relates to hunting with eagles. The German Constitutional Court held that the limitation on the constitutional freedom to develop one’s personality is disproportional, as no rational connection exists between the law’s purpose (guaranteeing the community’s protection from hunting weapons) and the means used by the law – the requirement of technical knowledge of firearms regarding hunting with eagles – which is connected to an activity that has nothing to do with firearms.