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Limits on Constitutional Rights: The Marginal Role of Proportionality Analysis

Published online by Cambridge University Press:  09 February 2017

Richard Moon
Richard Moon*
Affiliation:
Faculty of Law, University of Windsor, Windsor, Ontario (Canada).
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Abstract

Canada is often cited as one of the principal sources of proportionality analysis – an approach to the determination of limits on constitutional rights that has been adopted in many jurisdictions. The two-step structure of constitutional rights adjudication is built on the idea that these rights are the basic conditions of individual autonomy or liberty that must be protected from the demands of collective welfare. At the first stage of the adjudication the court determines whether the restricted activity falls within the scope of the right. At the second stage the court balances the right against the competing interest advanced by the restrictive law to determine whether the restriction is justified. Yet few of these rights fit this individual liberty model and are better understood as social or relational in character, protecting different aspects of the individual's interaction or connection with others in the community. If we recognise that most constitutional rights do not simply protect individual autonomy but instead protect different aspects of human flourishing or dignity within community then two conclusions may follow. First, there can be no single generic test for limits on rights. The form or character of ‘limitations’ on these rights may differ in significant ways. Second, the two steps of adjudication may often be difficult to separate, or the separation may seem quite artificial. Many of the issues addressed by the courts will not fit easily into the two-step structure of analysis because the ‘competing’ interests are really different dimensions of a social relationship.

Keywords

proportionality analysisbalancing of rightslimits on rights
Type
Articles
Information
Israel Law Review , Volume 50 , Issue 1 , March 2017 , pp. 49 - 68
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2017 

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References

1 For acknowledgement of the Canadian role in the ‘global diffusion’ of proportionality analysis see Sweet, Alec Stone and Mathews, Jud, ‘Proportionality, Balancing, and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 72 Google Scholar; Grimm, Dieter, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57 University of Toronto Law Journal 383 Google Scholar; Barak, Aharon, Proportionality: Constitutional Rights and Their Limitations (Cambridge University Press 2012)CrossRefGoogle Scholar; Webber, Grégoire CN, The Negotiable Constitution (Cambridge University Press 2009)Google Scholar; Klatt, Matthias and Meister, Moritz, The Constitutional Structure of Proportionality (Oxford University Press 2012)CrossRefGoogle Scholar.

2 Cohen-Eliya, Moshe and Porat, Iddo, Proportionality and Constitutional Culture (Cambridge University Press 2013) 13–14 Google Scholar: ‘The three jurisdictions that have had the greatest impact in the global spread of proportionality [are] Germany, the ECJ, and Canada’.

3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11; European Convention for the Protection of Human Rights and Fundamental Freedoms (entered into 3 September 1953) 213 UNTS 222 (ECHR).

4 [1986] 1 SCR 103. This test was drawn from a number of sources, including the US Supreme Court decision in Central Hudson Gas & Electricity Corp v Public Service Commission of New York 447 US 557 (1980). There is some irony in this since the Canadian courts have emphasised that the inclusion of section 1 (the limitations provision) makes the Charter very different from the US Bill of Rights and means that American case law must be used cautiously in the Canadian context: R v Keegstra [1990] 3 SCR 697.

5 In Europe see, for example, European Court of Human Rights (ECtHR), The Sunday Times v United Kingdom, App No 6538/74, 26 April 1979 and ECtHR, MS v Sweden, App No 74/1996/693/885. Many Canadian commentators have criticised the Supreme Court of Canada for failing to live up to the promise of the Oakes test and other early Charter cases in which the Court signalled its intention to carefully scrutinise limits on Charter rights and to set a high standard for their justification: see, for example, Cameron, Jamie, ‘Abstract Principle v. Contextual Conceptions of Harm: A Comment on R v. Butler ’ (1992) 37 McGill Law Journal 1135 Google Scholar, 1142; Weinrib, Lorraine Eisenstat, ‘Hate Promotion in a Free and Democratic Society: R v Keegstra ’ (1991) 36 McGill Law Journal 1416 Google Scholar, 1424–25.

6 See, for example, Tsakyrakis, Stavros, ‘Proportionality: An Assault on Human Rights’ (2011) 7 International Journal of Constitutional Law 468 Google Scholar; Webber, Grégoire CN, ‘Proportionality, Balancing and the Cult of Constitutional Rights Scholarship’ (2010) 23 Canadian Journal of Law and Jurisprudence 179 Google Scholar – which generated a number of responses including Kholsa, Madhav, ‘Proportionality: An Assault on Human Rights? A Reply’ (2010) 8 International Journal of Constitutional Law 298 Google Scholar; Klatt, Matthias and Meister, Moritz, ‘Proportionality – A Benefit to Human Rights? Remarks on the I.CON Controversy’ (2012) 10 International Journal of Constitutional Law 687 Google Scholar.

7 [1988] 1 SCR 30, 164.

8 As I hope will become clear in the discussion that follows, when I describe a right as ‘social’ or ‘relational’ I do not mean simply that the protection of a right involves the imposition of duties on others. Instead, I am claiming that the right protects an activity that is social in character and that the value of the right is based on the social character of the individual: Moon, Richard, The Constitutional Protection of Freedom of Expression (University of Toronto Press 2000)Google Scholar.

9 Moon, Richard, ‘Justified Limits on Free Expression: The Collapse of the General Approach to Limits on Charter Rights’ (2002) 40 Osgoode Hall Law Journal 337 Google Scholar, 357.

10 There are a few cases in which a court has found that a breach of section 15 is justified under section 1: see, for example, Newfoundland (Treasury Board) v NAPE 2004 SCC 66 – although the circumstances of the case are exceptional and the result troubling.

11 Some American commentators have argued that the courts should not engage in any form of balancing in free speech cases and should strike down laws only when they restrict speech for certain kinds of reasons: for example, Rubenfeld, Jed, ‘The First Amendment's Purpose (2001) 53 Stanford Law Review 767 CrossRefGoogle Scholar (drawing on the writing of Thomas Scanlon, argues that the First Amendment should preclude the state from restricting speech in order to prevent the audience from hearing certain views. In Rubenfeld's view, laws that pursue other purposes should not be seen as breaching the right of free speech). For a similar argument see Pildes, Richard H, ‘The Structural Conception of Rights and Judicial Balancing’ (2002) 6 Review of Constitutional Studies 179 Google Scholar.

12 I will acknowledge that in some familiar freedom of expression cases – most obviously those involving ‘time, place, and manner restrictions’ – the courts must strike a reasonable or fair balance between competing interests. In the case of a noise bylaw, for example, the court must balance or reconcile the expression interests of some with the interests of others in peace and quiet. This balancing, though, will often take account of systemic factors such as the alternative times and places available to the individual to communicate her or his message, with the result that the competing interest (in peace and quiet) will often prevail.

13 For a fuller account see Moon (n 8) 21–26.

14 ‘[W]e become individuals’, Clifford Geertz observes, ‘under the guidance of cultural patterns, historically created systems of meaning in terms of which we give form, order, point, and direction to our lives’: Geertz, Clifford, The Interpretation of Cultures (Basic Books 1973) 52 Google Scholar.

15 Taylor, Charles, Human Agency and Language (Cambridge University Press 1985) 256–57Google Scholar. The general account of expression in this section draws heavily on Taylor's writing.

16 At the same time, individuals adapt the symbolic forms of language to their needs in particular communicative contexts and is so doing recreate, extend, alter and reshape the language: ibid 97.

17 The intrinsic/instrumental distinction, as well as the distinction between listener and speaker-centred theories, is discussed in Moon (n 8) 24.

18 Even Mill thought it was important that the individual should participate in the truth, in the sense of being able to distinguish truth from falsehood, and knowing the grounds for his or her opinion: Mill, John Stuart, On Liberty (first published 1859, Penguin 1985) 97 Google Scholar.

19 Moon (n 9) 4–6.

20 Whitney v California 274 US 357(1927) 375 (Brandeis J).

21 Mill (n 18) 119.

22 Schenck v United States 249 US 47 (1919) 52.

23 [1989] 1 SCR 927.

24 The Court relied on empirical studies, which suggested that advertising had a detrimental or manipulative impact on children. When these studies proved inadequate to make the case in a clear way (particularly regarding children between the ages of 9 and 13), the Court decided to show deference to the legislature's judgment that the activity is manipulative.

25 BCGEU v BC (AG) [1988] 2 SCR 214 and RWDSU v Dolphin Delivery Ltd [1986] 2 SCR 573 (labour picketing); RJR Macdonald Inc v Canada (AG) [1995] 3 SCR 199 and Canada (AG) v JTI-Macdonald Corp 2007 SCC 30 (tobacco advertising); R v Keegstra [1990] 3 SCR 697 and Saskatchewan (HRC) v Whatcott 2013 SCC 11 (hate speech); Libman v Quebec (AG) [1997] 3 SCR 569 and Harper v Canada (AG) [2004] 1 SCR 827 (election spending); R v Butler [1992] 1 SCR 452 (pornography).

26 JTI-Macdonald Corp (n 25) para 110; see also RJR Macdonald (n 25).

27 Report of the Special Committee on Hate Propaganda in Canada (Queen's Printer 1966). Dickson CJ in Keegstra (n 25) 763: We should not ‘overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas’.

28 BCGEU v BC (AG) (n 25) and RWDSU v Dolphin Delivery Ltd (n 25).

29 Mouvement laïque québécois v Saguenay (City) 2015 SCC 16.

30 Moon, Richard, Freedom of Conscience and Religion (Irwin Law 2014) 23 Google Scholar, argues that religion is viewed as both a cultural practice that should (sometimes) be excluded and insulated from politics and a personal commitment to a set of claims about truth and right that cannot simply be removed from politics.

31 Moon, Richard, ‘Freedom of Religion under the Charter of Rights: The Limits of State Neutrality’ (2012) 45 University of British Columbia Law Review 495 Google Scholar.

32 Mouvement laïque (n 29) para 72.

33 R v Big M Drug Mart Ltd [1985] 1 SCR 295.

34 ibid para 134.

35 Zylberberg v Sudbury Board of Education (1988) 65 OR (2d) 641.

36 Canadian Civil Liberties Association v Ontario (Minister of Education) (1988) 71 OR (2d) 341.

37 Freitag v Penetanguishene (Town) (1999) 47 OR (3d) 301.

38 Mouvement laïque (n 29).

39 Freitag (n 37) para 36.

40 Big M Drug Mart (n 33) 353.

41 Mouvement laïque (n 29) para 113.

42 However, it may often be difficult to determine when the use of religious symbols or practices by the state is simply an acknowledgement of the country's religious history, and when it amounts to a present affirmation of the truth of a particular religious belief system. This point is made in Mouvement laïque (n 29) para 87: ‘[T]he Canadian cultural landscape includes many traditional and heritage practices that are religious in nature. Although it is clear that not all of these cultural expressions are in breach of the state's duty of neutrality, there is also no doubt that the state may not consciously make a profession of faith or act so as to adopt or favour one religious view at the expense of all others’.

43 In Syndicat Northcrest v Amselem 2004 SCC 47, para 46, the Supreme Court says that freedom of religion protects practices or activities that have for the individual ‘a nexus with religion’ or ‘connect’ her ‘with the divine’ or stem from her spiritual faith. These practices do not have to be part of an established belief system; nor is it necessary that the individual or group understands them to be mandatory.

44 For a discussion of these cases see Moon (n 30) Ch 3.

45 2009 SCC 37.

46 This is a standard that is not very different perhaps from that adopted by the US Supreme Court in Employment Division v Smith 494 US 872 (1990). The differences between the US and Canadian approaches may simply reflect structural differences between the two bills of rights – specifically the inclusion of a separate limitations provision in the Canadian document. As described by Evans, Carolyn, Freedom of Religion under the European Convention on Human Rights (Oxford University Press 2001) 134 Google Scholar, the approach of the ECtHR to art 9 ECHR may be similar.

47 2006 SCC 6. The council of school commissioners interpreted the ban on weapons in its code of conduct as excluding the kirpan.

48 ibid para 37. The kirpan could, of course, be both a weapon and a religious symbol in the sense that its symbolic role is tied to its history or character as a weapon. The issue in this case, though, was whether it was being carried as a weapon.

49 ibid para 67. Charron J further observed that in contrast to an aircraft or a court house, where a ban on the kirpan might be justified, the school had an ongoing relationship with its students and could therefore monitor their actions and assess the risk of violent behaviour: see Hothi v R [1985] 3 WWR 256 (Man QB) (affirmed [1986] 3 WWR 671 (Man CA)) (kirpans banned in the courts); Nijjar v Canada 3000 Airlines Ltd (1999) 36 CHRR D/76 (HRT) (kirpans banned in aircraft).

50 Wilson Colony (n 45).

51 ibid para 36.

52 In the discussion that follows I have drawn a distinction between indirect and direct restrictions on religious practice. I recognise, though, that these two categories are sometimes difficult to distinguish and might, more accurately, be viewed as part of a continuum.

53 Such a claim, though, was rejected in the US Supreme Court judgment of Lyng v Northwest Indian Cemetery Protective Association 485 US 439 (1988).

54 Even so, in R v Badesha 2008 ONCJ 94 (upheld in R v Badesha 2011 ONCA 601) the Ontario Superior Court rejected a Sikh man's claim to be exempted from a provincial motorcycle helmet requirement. The Court noted that if the rider were seriously injured, the public health care system would be detrimentally affected, as would his family and his employer.

55 The right to equality rests on the social character of individual identity – on a recognition that the individual's sense of self and place in the world is significantly affected by how he or she (and a group with which the individual identifies) is regarded and treated relative to others in the community. The Canadian courts have interpreted the section 15 prohibition on discrimination to include both intentional (or direct) discrimination and effects (or constructive) discrimination: see, eg, Andrews v The Law Society of British Columbia [1989] 1 SCR 143.