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

ationally connected to the legislative goal. The connection must be established on a balance ofprobabilities (RJR-MacDonald, at para. 153; see also Nicholas Emiliou, The Principle ofProportionality in European Law: A Comparative Study (1996), at p. 27).[142] I agree with the majority that the Government has satisfied the rational connectionaspect of the s. 1 analysis. As the chambers judge said: “The requirement of a photograph, coupledwith facial recognition software, facilitates the government’s objective of ensuring that no individualwill hold multiple licences under different names” (para. 11). The regulations help prevent anapplicant from fraudulently obtaining a licence in the name of another person whose photograph isalready in the database.Minimal Impairment[143] Where I start to part company with the majority, with respect, is at the minimalimpairment stage of the analysis. This aspect of the s. 1 analysis has attracted judicial approachesof some elasticity, reflecting an understandable desire both to be respectful of the complexity ofdeveloping public policy, while at the same time ensuring that the infringing measure meets itspolicy objectives no more intrusively than necessary.[144] As McLachlin J. wrote in RJR-MacDonald, if the option chosen by the government“falls within a range of reasonable alternatives, the courts will not find it overbroad merely becausethey can conceive of an alternative which might better tailor objective to infringement” (para. 160).However, “if the government fails to explain why a significantly less intrusive and equally effective