SUPREME COURT OF CANADA CITATION: Alberta v. Hutterian ...

ight is reasonably tailored to the pressing and substantial goal put forward to justify the limit.Another way of putting this question is to ask whether there are less harmful means of achieving thelegislative goal. In making this assessment, the courts accord the legislature a measure of deference,particularly on complex social issues where the legislature may be better positioned than the courtsto choose among a range of alternatives.[54] In RJR-MacDonald, the minimal impairment analysis was explained as follows, at para.160:As the second step in the proportionality analysis, the government must show thatthe measures at issue impair the right of free expression as little as reasonably possiblein order to achieve the legislative objective. The impairment must be “minimal”, thatis, the law must be carefully tailored so that rights are impaired no more than necessary.The tailoring process seldom admits of perfection and the courts must accord someleeway to the legislator. If the law falls within a range of reasonable alternatives, thecourts will not find it overbroad merely because they can conceive of an alternativewhich might better tailor objective to infringement. ... On the other hand, if thegovernment fails to explain why a significantly less intrusive and equally effectivemeasure was not chosen, the law may fail. [Emphasis added; citations omitted.]In this manner, the legislative goal, which has been found to be pressing and substantial, groundsthe minimum impairment analysis. As Aharon Barak, former President of the Supreme Court ofIsrael, 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 fromthe 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). Theinternal limitation arises from the fact that the minimum impairment test requires only that the