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

D. M. Weinstock, “Philosophical Reflections on the Oakes Test” in L. B. Tremblay and G. C. N.Webber, eds., The Limitation of Charter Rights: Critical Essays on R. v. Oakes (2009), at pp. 115-16; also T. Hurka, “Proportionality in the Morality of War” (2005), 33 Phil. & Pub. Aff. 34; G. Vander Schyff, Limitation of Rights: A Study of the European Convention and the South African Bill ofRights (2005), at pp. 23-27; M.-A. Eissen, “The Principle of Proportionality in the Case-Law of theEuropean Court of Human Rights” in R. St. J. Macdonald, F. Matscher and H. Petzold eds., TheEuropean System for the Protection of Human Rights (1993), at pp. 125-46). The principle ofproportionality can even be found in Canadian criminal law. Self-defence, in s. 34 of the CriminalCode, R.S.C. 1985, c. C-46, for example, is predicated on the legitimacy of the purpose and theproportionality of the means used to further that purpose.[185] The Oakes test belongs to this legal and philosophical tradition. In essence, it is aboutpurpose and means: the legitimacy of the purpose and the proportionality of the means. The use ofproportionate means in order to achieve legitimate purposes will justify a limitation of rights unders. 1.[186] As is well known, the Oakes test imposes on the state the burden of demonstrating apressing and substantial objective. This is the purpose part of the test. Then, the state must meet theproportionality requirements. The first requirement of the proportionality test is that there be arational connection between the purpose and the means. This part of the test is really about thenecessity or usefulness of the means in connection with the objective. A law that does not somehowcontribute to advancing the stated purpose will not pass constitutional muster. The courts must thenreview the means themselves by asking whether the means are minimally impairing of the right in