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

It is at these stages that the means are questioned and their relationship to the law’s purpose ischallenged and reviewed. It is also where the purpose itself must be reassessed with regard to themeans chosen by Parliament or the legislature.[191] A constitutional scholar, Peter Hogg, has observed that s. 1 litigation really revolvesaround minimal impairment (at sections 38.11(a) and 38.12). There is more than a kernel of truthto this statement. It may reflect what is really happening in the course of constitutional litigationabout s. 1 and the conduct of a proportionality analysis. Indeed, I believe that the proportionalityanalysis depends on a close connection between the final two stages of the Oakes test. The court’sgoal is essentially the same at both stages: to strike a proper balance between state action, thepreservation of Charter rights and the protection of rights or interests that may not be guaranteedby the Constitution, but that may nevertheless be of high social value or importance (seeR.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R.156, at paras. 65 and 72).[192] It may be tempting to draw sharp analytical distinctions between the minimalimpairment and balancing of effects parts of the Oakes test. But determining whether a measurelimiting a right successfully meets the justification test should lead to some questioning of thepurpose in the course of the proportionality analysis, to determine not only whether an alternativesolution could reach the goal, but also to what extent the goal itself ought to be realized. This partof the analysis may confirm the validity of alternative, less intrusive measures.[193] The pull toward a sharp distinction between the two steps of the proportionality analysis,