COMPARATIVE CONSTITUTIONAL LAW

1. COMPARATIVE CONSTITUTIONAL LAW Class 7 – September 10 2008 CANADA: Limitations on Rights and Proportionality

2. Wrap-Up – Class 6 • Charter of Rights and Freedoms: history and rights it contains • Uniquely Canadian feature: s. 33 Override Clause • State action doctrine embodied in s. 32

3. S. 1 of the Charter of Rights and Freedoms • Guarantee of Rights and Freedoms • 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

4. Tiered Scrutiny in the U.S. • Really began with the famous footnote 4 in U.S. v. Carolene Products (1938) • Text of Footnote Four • “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth…It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

5. Some classifications are especially suspect • E.g. race, national origin • What level of scrutiny do they get?

6. Some classifications are especially suspect • E.g. race, national origin • What level of scrutiny do they get? Strict: can only be upheld if suspect classification is necessary to the accomplishment of a compelling governmental objective • Test is also applicable to regulations of speech that discriminate based on content of speech, viewpoint of speaker

7. Some classifications are mildly suspicious • Such as classifications based on gender or legitimacy • What level of scrutiny do they get?

8. Some classifications are mildly suspicious • Such as classifications based on gender or legitimacy • What level of scrutiny do they get? Intermediate – government must prove that its actual objective is IMPORTANT (but not compelling) and the classification is SUBSTANTIALLY RELATED but not necessary to the accomplishment of the important objective • Variations of intermediate scrutiny apply to regulations of commercial speech, time, place and manenr restrictions

9. Central Hudson Test – see 447 U.S. 557 (1980) • The "Central Hudson" test asks: • (1) whether the speech at issue concerns lawful activity and is not misleading; • (2) whether the asserted government interest is substantial; and, if so, • (3) whether the regulation directly advances the governmental interest asserted; and • (4) whether it is not more extensive than is necessary to serve that interest.28

10. Default level of scrutiny – rational basis

11. Default level of scrutiny – rational basis • Challenger of regulation must establish that either government has no legitimate (hypothetical) purpose or its action is not rationally related to the accomplishment of that purpose • Substantial tolerance for over and under inclusiveness • Some cases have applied less deferential form of rational basis scrutiny, e.g. Romer v. Evans (1996), Cleburne (1985), Plyler v. Doe (

12. Is Tiered Scrutiny Collapsing? • See, e.g. Lawrence v. Texas (2003) • Grutter v. Bollinger (2003) • Will the Court’s “adherence to formalism eventually rot the form”, as Calvin Massey asks in his article?

13. R. v. Oakes [1986] 1 S.C.R. 103 • Majority judgment written by Brian Dickson C.J. (but there are rumors that it was his law clerk, Joel Bakan)

14. R. v. Oakes [1986] 1 S.C.R. 103 • What is the Oakes test?

15. R. v. Oakes [1986] 1 S.C.R. 103 • What is the Oakes test? 1. There must be a pressing and substantial objective • 2. The means must be proportional • The means must be rationally connected to the objective • There must be minimal impairment of rights • There must be proportionality between the infringement and objective

16. R. v. Oakes [1986] 1 S.C.R. 103 • Oakes cited by the Court in over 150 subsequent cases • Oakes cited by courts around the world, including in Antigua and Barbuda, Australia, Fiji, Hong Kong, Ireland, Israel, Jamaica, Namibia, South Africa, U.K., Vanuatu, Zimbabwe

17. Central Hudson Test – see 447 U.S. 557 (1980) • The "Central Hudson" test asks: • (1) whether the speech at issue concerns lawful activity and is not misleading; • (2) whether the asserted government interest is substantial; and, if so, • (3) whether the regulation directly advances the governmental interest asserted; and • (4) whether it is not more extensive than is necessary to serve that interest.28

18. R. v. Edwards Books • Did the Court apply the Oakes test?

19. According to Choudhry • After Edwards Books, Supreme Court of Canada continues its “unannounced yet transparent trend toward deference.” • In what way? • Is the Court deferential in all s. 1 cases?

20. Is there an overlap • Between section 7 (fundamental justice) and s. 1 • Section 7 provides: LIFE, LIBERTY AND SECURITY OF PERSON. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.