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

[188] In general, courts have only rarely questioned the purpose of a law or regulation in thecourse of a s. 1 analysis. The threshold of justification remains quite low and laws have almost neverbeen struck down on the basis of an improper purpose (Hogg, at section 38.9(b)). The pressing andcompelling purpose test amounts to a prima facie review of the legitimacy of the law’s objective.Its flexibility reflects the need to avoid too close questioning of the policy reasons underlying a law.Such a review would be better left to the political and parliamentary process. The flexibility of theanalysis at this stage results also from the abstract nature of the purpose, which can be expressed bythe courts at “various levels of generality” (Hogg, at section 38.9(a); Thomson Newspapers, at para.125, per Bastarache J.). Since this objective is often not expressed with much clarity in the law orregulation, its identification and definition at this stage of the analysis often amount to a judicialconstruct based on such evidence as is available. The nature of this part of the Oakes test shouldcaution courts against treating the purpose with undue emphasis on its sanctity throughout theproportionality analysis, when its nature and effects will have to be more closely questioned.[189] The first part of the Oakes test is closely connected to the proportionality analysis. Therational connection analysis requires the courts to determine, for a start, whether the means chosenwill somehow advance the stated purpose of the law. At this stage too, courts have rarely foundstatutes and regulations wanting (Hogg, at section 38.10(a)).[190] This acknowledgment of the realities of constitutional adjudication does not mean thatcourts will or should never intervene at these earlier stages. However, this situation confirms that,after almost a quarter century of s. 1 jurisprudence, the crux of the matter lies in what may be calledthe core of the proportionality analysis, the minimal impairment test and the balancing of effects.