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

question (the “minimal impairment” test). Finally, the court will engage in a balancing of themeasure’s salutary and deleterious effects (see P.W. Hogg, Constitutional Law of Canada (5th ed.Supp.), vol. 2, at section 38.8; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (5th ed.2008), at pp. 975-76). The reasons of the Chief Justice focus on the last part of this test in seekingto justify the impugned regulations under s. 1.[187] It has also been said, at times, that context should be considered at the outset of theanalysis in order to determine the scope of the deference of courts to government when applying theOakes test (Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877). One partof this context should not be forgotten: the constitutional context itself. The Charter is designed touphold and protect constitutional rights. The justification process under s. 1 is not designed tosidestep constitutional rights on every occasion. Rather, it seeks to define and reconcile these rightswith other legitimate interests or even between themselves. The burden of justification rests on thestate, although I will not attempt, within the limited scope of these reasons, to delve any further intothe vexed question of what is sufficient evidence or demonstration of justification. The justificationprocess also reflects the democratic life of a state like Canada, which operates under the rule of law,in the tradition of a parliamentary government, within the framework of a federal form ofgovernment. Section 1 and the Oakes test are designed to reach a proper equilibrium between therule of law, the roles of courts, Parliament or legislatures, and executives, and the democratic lifeof our country. In the end, when conflict does arise and cannot be resolved, courts must try to strikea proper balance between competing demands, always mindful of their place within theconstitutional and political sphere.