Separating Minimal Impairment from Balancing: A Comment on R. V. Sharpe (B.C.C.A.
Review of Constitutional Studies, Vol. 5, No. 195, 2000
18 Pages Posted: 31 Jul 2006
At the center of Canadian constitutional law -- as in many other countries -- is the principle of proportionality. It is understood to include three sub-tests: rational relation, minimum impairment and balancing between the deleterious and the salutary effects of the law. In practice the courts concentrate on the second test. It is argued that in fact they often perform balancing when applying the minimal impairment test, but refrain from explicitly acknowledging it, because it appears less legitimate. The constitutional challenge in R. v. Sharpe to the child pornography legislation is used as an example to illustrate the argument.
Keywords: charter, section 1, limitation clause, proportionality, minimal impairment
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