Democratic Rights and Social Science Evidence
32(2) National Journal of Constitutional Law 151, 2014
20 Pages Posted: 19 Sep 2014
Date Written: February 14, 2014
I argue that the Supreme Court of Canada's analytical framework for assessing social science evidence in its proportionality analysis is inadequate with respect to democratic rights and freedoms. The article addresses the limits to the use of social science evidence in cases engaging s. 3 and s. 2(b) of the Charter of Rights and Freedoms. The article then identifies and critiques the Supreme Court's existing approach to social science evidence in its proportionality analysis in cases involving democratic rights and freedoms. I argue that the jurisprudence permits a highly deferential approach to the state's justification for infringing democratic rights and freedoms. This approach is inappropriate given the risk of partisan self-dealing by incumbents and in conflict with the Court's jurisprudence identifying democratic rights as fundamental or core rights entitled to the highest level of protection.
Keywords: Democratic rights and freedoms, social science evidence, proportionality analysis, Oakes test, right to vote, political speech
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