This paper examines the rise to prominence of proportionality analysis in section 7 of the Canadian Charter of Rights and Freedoms. In recent years, the Supreme Court of Canada has affirmed that any law affecting life, liberty and security of the person must not be arbitrary, overbroad or grossly disproportionate. The expansion of section 7’s substantive scope to include means-testing government action re-engages concerns about judicial capriciousness that have troubled section 7 since its early days. This paper examines this concern in light of section 7’s history. It suggests that the prominence of proportionality analysis in section 7 may be understood as, in part, an effort to avoid the difficult task of setting normative boundaries on the scope of the provision. This paper argues that substantive values are inescapable as courts identify and frame these goals and scrutinize proportionality with close attention to real-world impacts of government action. Drawing on comparisons with the role played by proportionality analysis in section 1 of the Charter, the paper suggests that means-testing government policy should be guided by the Court’s institutional role, but with careful attention to the substantive purpose of section 7 of the Charter as a right, a purpose that includes protection against overweening majoritarianism. Such a purposive interpretation may permit proportionality analysis to be informed by democratic deficits and political powerlessness in government law and policy-making processes.
"The Arbitrariness in “Arbitrariness” (And Overbreadth and Gross Disproportionality): Principle and Democracy in Section 7 of the Charter."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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