Week Seven: Proportionality (Canonical cases (SAC art. 36(1) formula…
Week Seven: Proportionality
R v. Oakes
Facts: a reverse burden presumption whereby a person who possessed drugs was presumed to be a drug trafficker
Dickson CJ (for the Court)
the statute engaged CCRF s 11(d), which provides that a criminal defendant has the right to be presumed innocent until proven guilty
there was a prima facie conflict with the provision - so need to consider whether it can be justified under s 1
what does s 1 require?
guaranteeing the rights and freedoms which follow
against which limitations on those rights must be measured
s 1 needs to be interpreted in context, having respect for dignity, social justice, equality, accommodation of difference
rights and freedoms are not absolute
: they may be limited when they conflict with collective goals
the onus rests on the party seeking to uphold the limitation
objective must be of
to warrant overriding a protected right
must show that means chosen are
reasonably and demonstrably justified
SAC art. 36(1) formula
"The rights in the BOR may be limited only in terms of the law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including:
(a) the nature of the right
(b) the importance of the purpose of teh limitation
(c) the nature and extent of the limitation
(d) the relation between the limitation and its purpose
(e) the least restrictive means to achieve the purpose
An IDF Commander in the West Bank issued orders to take possession of plots of land in order to erect a separation fence. The route was chose to protect a nearby Israeli road. the land was forcibly acquired, but the owners were compensated.
accepted the security rationale for the fence's construction
but acknowledged that a number of rights would be violated - property, freedom of movement, freedom of occupation, education, religion, environment
the 4th Geneva Convention demanded a standard of substantive and procedural fairness for the claimants
important in balancing security and liberty interests
also an important principle in Israeli administrative law
objective must be rationally related to the means
the means must be the least injurious available
the means must be overall proportionate
on the facts
the standard of review should be one of reasonability - the court is not an expert forum and should not displace the views of military commanders, who deserve special weight.
accepts that the military has a pressing objective, and that the fence is rationally related to it
but less deference should be afforded on the minimal impairment limb, especially when the injury is so severe
on the question of
, acknowledges that there is another route available - but this is not the question.
the question is whether the alternative would also meet the military's objectives
on the question of
, concludes that the barrier fails. there are severe and acute harms on the local population; inhabitants were not compensated with alterantive lands; access restrictions were severe, and another route could be adopted
conventional wisdom is that it is not really possible to pass the second limb, and yet fail at the third (esp. in Canada)
seems to be an exception to that rule
Hamdi v. Rumsfeld
after the 9/11 attacks, Congress enacted a resolution (the AUMF) authorizing the president to "use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided teh terrorists"
the US invaded Afghanistan pursuant to that authorization
Hamdi, a US citizen, was captured in a battle zone and determined to be an "enemy combatant", allowing for unlimited executive detention
O'Connor (for the Court)
Issue one: did the President have authority to detain Hamdi?
even though the AUMF does not explicitly authorize detention, it is clearly incidental to the use of force that enemy combatants be detained
there is no question that it is lawful under international law
Issue two: was Hamdi entitled to a hearing?
rejected the government argument that such a hearing would be practically unworkable, and that the court should defer to this assessmnet
but acknowledged taht "the tension oten exists between the autonomy that the governmetn asserts is necessary ... and the process that a citizen contends he is due"
the appropriate test is that from
Matthews v. Eldridge
: the court will weigh
the private interest that will be affected by the official action against the government's asserted interest, including the function involved and the burdens the government would face in providing greater process. The
calculus then contemplates a judicious balancing of these concerns, through an analysis of the risk of an erroneous deprivation of the private interest if the process were reduced and the probable value, if any, of additional or substitute safeguards
the test applied
substantial interests on both sides
the right balance is neither absolutely no trial protections, nor a full criminal trial
"we therefore hold that a citizen-detainee seeking to challenge his classification ... must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker"
but this need not be a full trial
Scalia (con. in judg)
the constitution does not permit detention of citizens without charge in
if it is really impossible to grant a trial, the government should use its cosntitutional power to suspend habeas corpus
Souter (con. in jud.)
clear statutory authorization would be required to allow detention here
"the defining character of American const. gov. is its constant tension between security and liberty, serving both by partial helpings of each"
proportionality has become a universal model of JR
goes by different names - "reasonableness" (India and Japan); "toleration" (Israel); "strict scrutiny" (US) (!!!); but its meaning is consistent
if properly done, it is impartial, because judges "determine proportionality by careful evaluation of the parties' perspectives"
another benefit of proportionality is that it makes judicial assessments more transparent and open to critique/debate
uses the doctrine of proportionality as a vehicle for exploring the possibility of gaining knowledge from comparative study
comparative law always involves considerations of both the "local" and the "universal"; makes generalization and even knowledge across legal systems very difficult
when courts around the world refer to "balancing", they actually mean different things: in Canada and Europe, balancing means proportionality; in the US, it is likely to mean some kind of consequentialist analysis
"balancing" draws "continuous connections to notions of fairness and rationality that are presented as having a strong universal dimension", even though these notions differ in practice
functionalism vs. expressivism
basic starting point: the problems of justice are basically the same throughout the world
interested in the outcomes, rather than the processes that lead to them
tend to believe that there are similarities between constitutions
but have problems accounting for context: the same standard (e.g. reasoanbleness) will be applied differently in different places
"for expressivist scholars, functionalism 'reduces the law to a formal technique of conflict resolution, stripping it of its political and moral underpinnings"
"the comparative scholar's task is no longer that of identifying and matching problems and solutions, but rather of trying to grasp 'the local meaning of legal institutions or practices' through a process of 'cultural immersion"
outcomes are less important than what leads up to them; the factors conditioning practices; and the specific shapes they are give
balancing tends to be associated with functionalism
assumes shared historical and conceptual foundations
balancing often makes references to "rationality" or universality
proportionality tends to lead to PF findings of rights breaches all the time
four types of balancing
will apply differently to different plaintiffs - takes into account the nature of the particular plaintiff
outcomes depend on the charactierziation of the plaintiff
not seriously advocated by anyone
certain rules are created, and the question for the court is less about the context of the particular plaintiff, and more about what category they fall into
the US strict/intermediate scrutiny tests are classic examples of this
rules are inevitably both over- and under-inclusive - can always tinker with it to make it more specific
defenders of proportionality argue that rules are too rigid
also, where do these rules come from? history? this will be stronger in countries such as the US, where experience makes the rules more settled
arguably somewhere between rule- and categorical- balancing
benefits of proportionality
more open and transparent
a claim to objectivity
has resulted in some fundamental protections being restricted
the fourth stage requires direct quasi-legisaltive analysis, thus running in to the countermajoritarian difficulty
poor at taking administrative cost into account