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

the context of the narrower driver’s licensing program. In my opinion, the province has a legitimateinterest in ensuring the integrity of its driver’s licensing system and guarding against the risk thatit will be used to perpetrate fraud. In order to accomplish this goal, it should not be forced toundertake broader measures that it might have resisted for other policy reasons.[65] The courts below approached minimum impairment in a different fashion. First, theyconducted the balancing inquiry at the stage of minimal impairment. Second, drawing on thisCourt’s decision in Multani, the courts below applied a reasonable accommodation analysis insteadof the Oakes test.[66] In my view, a distinction must be maintained between the reasonable accommodationanalysis undertaken when applying human rights laws, and the s. 1 justification analysis that appliesto a claim that a law infringes the Charter. Where the validity of a law is at stake, the appropriateapproach is a s. 1 Oakes analysis. Under this analysis, the issue at the stage of minimum impairmentis whether the goal of the measure could be accomplished in a less infringing manner. Thebalancing of effects takes place at the third and final stage of the proportionality test. If thegovernment establishes justification under the Oakes test, the law is constitutional. If not, the lawis null and void under s. 52 insofar as it is inconsistent with the Charter.[67] A different analysis applies where a government action or administrative practice isalleged to violate the claimant’s Charter rights. If a Charter violation is found, the court’s remedialjurisdiction lies not under s. 52 of the Constitution Act, 1982 but under s. 24 (1) of the Charter: R.v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61. In such cases, the jurisprudence on the