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2 - Proportionality Analysis by the Canadian Supreme Court

Published online by Cambridge University Press:  14 April 2020

Mordechai Kremnitzer
Affiliation:
Israel Democracy Institute
Talya Steiner
Affiliation:
Hebrew University of Jerusalem
Andrej Lang
Affiliation:
Martin Luther-Universität Halle-Wittenberg, Germany
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Summary

The chapter presents an analysis of the application of the proportionality doctrine in the case law of the Canadian Supreme Court. Based on both a qualitative and quantitative analysis of a large sample of case law applying proportionality, the chapter uses quantitative indicators to provide an overview of the characteristics of proportionality analysis in action, including the rights and subject matters to which proportionality is applied, the division of labour between the stages of the analysis when striking down measures, and termination rates for each stage following a failure. The findings reinforce the existing perception that minimal impairment is central to Canadian proportionality analysis: it is the stage where the largest number of cases fail and half of the time the Court does not proceed to even consider the final balancing stage. Even when cases fail at the substantial objective or rational connection stage – which happens more often than generally acknowledged – the court almost always continues the analysis to the minimal impairment stage for an additional failure. The chapter further analyses qualitatively the application in practice of each of proportionality's subtests, exposing the range of interpretations given and the content that has been infused into the different stages.

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Chapter
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Proportionality in Action
Comparative and Empirical Perspectives on the Judicial Practice
, pp. 134 - 192
Publisher: Cambridge University Press
Print publication year: 2020

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