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

ather by whether its infringement of Charter rights is directed at an important objective and isproportionate in its overall impact. While the law’s impact on the individual claimants isundoubtedly a significant factor for the court to consider in determining whether the infringementis justified, the court’s ultimate perspective is societal. The question the court must answer iswhether the Charter infringement is justifiable in a free and democratic society, not whether a moreadvantageous arrangement for a particular claimant could be envisioned.[70] Similarly, “undue hardship”, a pivotal concept in reasonable accommodation, is noteasily applicable to a legislature enacting laws. In the human rights context, hardship is seen asundue if it would threaten the viability of the enterprise which is being asked to accommodate theright. The degree of hardship is often capable of expression in monetary terms. By contrast, it isdifficult to apply the concept of undue hardship to the cost of achieving or not achieving a legislativeobjective, especially when the objective is (as here) preventative or precautionary. Though it ispossible to interpret “undue hardship” broadly as encompassing the hardship that comes with failingto achieve a pressing government objective, this attenuates the concept. Rather than strain to adapt“undue hardship” to the context of s. 1 of the Charter, it is better to speak in terms of minimalimpairment and proportionality of effects.[71] In summary, where the validity of a law of general application is at stake, reasonableaccommodation is not an appropriate substitute for a proper s. 1 analysis based on the methodologyof Oakes. Where the government has passed a measure into law, the provisions of s. 1 apply. Thegovernment is entitled to justify the law, not by showing that it has accommodated the claimant, butby establishing that the measure is rationally connected to a pressing and substantial goal, minimally