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In Defence of Two-Step Balancing and Proportionality in Rights Adjudication

Published online by Cambridge University Press:  20 July 2015

Charles-Maxime Panaccio
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Two-step proportionality-balancing [TSPB] has become the standard method for human and constitutional rights decision-making. The first step consists in determining whether a rights-provision has been infringed/limited; if the answer to that first question is positive, the second step consists in determining whether the infringement/limit is reasonable or justified according to a proportionality analysis. TSPB has regularly been the target of some criticism. Critiques have argued that both its ‘two-step’ and ‘proportionality’ elements distort reality by promoting a false picture of rights and constitutional decision-making. This would cause negative moral consequences. This article seeks to defend TSPB against these criticisms and to depict it in a more appropriate and favourable light. First, it is argued that both aspects of TSPB do not have the dire moral consequences that opponents suggest they have. Second, it is argued that TSPB, deploying notions such as burdens, presumptions and prima facie/defeasible propositions, constitutes a valuable framework for public argumentation and authoritative decision-making.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 24 , Issue 1 , January 2011 , pp. 109 - 128
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2011

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References

Sincere thanks to Giovanni Battista Ratti for guidance on the topic of defeasibility and to Wayne Sumner and Matthew Lewans for detailed and helpful comments.

1. For instance, this structure characterizes constitutional doctrines in Canada, Germany, South Africa and Israel. It is also found in the application of statutory Bills of Rights in the United Kingdom, New Zealand and Australia and in the application of international rights instruments such as the Universal Declaration of Human Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. See Webber, Grégoire C.N., The Negotiable Constitution: On the Limitation of Rights (Cambridge: Cambridge University Press, 2009) at 55—64 CrossRefGoogle Scholar [Webber Negotiable Constitution] and Sweet, Alec Stone & Mathews, Jud, Proportionality Balancing and Global Constitutionalism (2008) 47 Colum. J. Transnat’l L. 72, 97-152Google Scholar [Stone Sweet & Mathews Global Constitutionalism] for a more detailed overview and discussion.

2. Webber, Grégoire C.N., ‘Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship’ (2010) 23 Can. J. L. & Jur. 179 Google Scholar [Webber Cult]; Webber Negotiable Constitution, supra note 1, esp. c. 2-4; Miller, Bradley W., ‘Justification and Rights Limitations’ in Huscroft, Grant, ed., Expounding the Constitution: Essays in Constitutional Theory (New York: Cambridge University Press 2008) 93 CrossRefGoogle Scholar [Miller]; Siebrasse, Norman, ‘The Oakes Test: An Old Ghost Impeding Bold New Initiatives’(1991) 23 Ottawa L.Rev. 99 Google Scholar [Siebrasse]; Blache, Pierre, ‘The Criteria of Justification under Oakes: Too Much Severity Generated Through Formalism’ (1991) 20 Man. L.J. 437 Google Scholar [Blache]; Mendes, Errol P., ‘In Search of a Theory of Social Justice: The Supreme Court Reconceives the Oakes Test’(1990) 24 R.J.T. 1 at 3, 6Google Scholar [Mendes]; Chapman, Pamela A., ‘The Politics of Judging: Section 1 of the Charter of Rights and Freedoms’ (1986) 24 Osgoode Hall L.J. 867 Google Scholar [Chapman].

3. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

4. Convention for the protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221 at 223Google Scholar, Eur. T.S. 5 [ECHR]. For instance: art. 8-11.

5. R. v. Oakes, [1986] 1 S.C.R. 103 [Oakes].

6. Irwin Toy Ltd. v. Quebec (Attorney general), [1989] 1 S.C.R. 927 Google Scholar.

7. In Robert Alexy’s seminal proportionality theory of constitutional rights, these components are respectively called ‘suitability,’ ‘necessity’ and ‘the Law of Balancing.’ Alexy, Robert, A Theory of Constitutional Rights, trans. by Rivers, Julian (Oxford: Oxford University Press, 2002) 397—414 Google Scholar. See also Webber Negotiable Constitution, supra note 1 at 70-79.

8. Stone Sweet & Mathews Global Constitutionalism, supra note 1 at 127, 129, 163-64.

9. Grimm, Dieter, ‘Proportionality in Canadian and German Constitutional Jurisprudence’ (2007) 57 U.T.L.J. 383 at 389, 393CrossRefGoogle Scholar [Grimm]; Stone Sweet & Mathews Global Constitutionalism, ibid. at 163.

10. It has in fact been used as a model by some of the other jurisdictions, e.g., in South Africa, Israel, Ireland and New Zealand. Stone Sweet & Mathews Global Constitutionalism, ibid. at 123-34, 125, 133, 135.

11. Instrumental rationality being one particular type of rationality. Philosophers have been arguing for a long time as to whether one can be instrumentally rational and yet irrational, for instance by failing to have appropriate desires or beliefs, or by failing to act morally or according to the balance of applicable reasons. Another way to put the issue is to ask whether someone who is acting immorally but in accordance with instrumental rationality can be said to be acting rationally at all. Thankfully, for the present purposes, I do not need to express any views in this debate and it shall suffice to raise the different notions of reason and rationality at play. For a useful overview of the various meanings of rationality, see Lukes, Steven, ‘Some Problems About Rationality’ in Wilson, Bryan R., Rationality (New York: Harper & Row, 1970).Google Scholar

12. Cohen, Lucy Kramer, ed., The Legal Conscience: Selected Papers of Felix S. Cohen (New Haven, CT: Yale University Press, 1960) at 44.Google Scholar

13. This point is made in Stone Sweet & Mathews Global Constitutionalism, supra note 1 at 89, 163-64.

14. Here the rational action is the morally right action. Morally wrong action implies some form of irrationality. A well-known exposition of such a view can be found in Baier, K., The Moral Point of View: A Rational Basis of Ethics (Ithaca, NY: Cornell University Press, 1958)Google Scholar. See also Raz, J., ‘Explaining Normativity: On Rationality and the Justification of Reason’ in Engaging Reason: On the Theory of Value and Action (Oxford: Oxford University Press, 1999) 67.Google Scholar

15. Alberta v. Hutterian Bretheren of Wilson Colony, [2009] 2 S.C.R. 567 at paras 48, 51Google Scholar.

16. Stone Sweet & Mathews Global Constitutionalism, supra note 1 at 75. Barak, A., ‘Proportional Effect: The Israeli Experience’ (2007) U.T.L.J. 369 [Barak] at 372-73CrossRefGoogle Scholar; Grimm supra note 9 at 389.

17. Barak, ibid. at 373-74; Grimm, ibid. at 393.

18. It is that stripped down version of Minimal Impairment that was favoured (with some qualifications) by the majority in Hutterian Brothers, supra note 15 at para. 54-55.

19. The same point is made even more effectively by Sumner, L.W in The Hateful and the Obscene: Studies in the Limits of Free Expression (Toronto, ON: University of Toronto Press, 2004) [Sumner] at 66—67 CrossRefGoogle Scholar. See also Barak, supra note 16 at 374, 380-81. Grimm, supra note 9 at 393-94, 396; Brudner, Alan, ‘What Theory of Rights Best Explains the Oakes Test?’ in Tremblay, Luc B. & Webber, Grégoire C.N., eds., La limitation des droits de la Charte: essais critiques sur l’arrêt R. c Oakes/The limitation of charter rights: critical essays on R. v. Oakes (Montreal, PQ: Thémis, 2009), 59 at 60Google Scholar [Tremblay & Webber]; Blache, supra note 2 at 444.

20. Grimm, supra note 9 at 395. For a similar observation see Beatty, David M., The Ultimate Rule of Law (Oxford: Oxford University Press, 2004) at 163 CrossRefGoogle Scholar [Beatty]; Siebrasse, supra note 2 at 118. I am naturally drawn towards an attitude which tackles controversy head on as opposed to one which sweeps part of it under the rug, but a judge may retort that such an attitude is easier for an academic to adopt.

21. Webber Negotiable Constitution, supra note 1 at 5, 115, 121-23, 139; Webber Cult, supra note 2 at 201-02; Miller, supra note 2 at 95-96, 115; Siebrasse, supra note 2 at 118-19.

22. For instance, Chapman, supra note 2; Mendes, supra note 2 at 3; Siebrasse, supra note 2 at 101-02.

23. Webber Negotiable Constitution, supra note 1 at 6, 10, 89-90, 94, 96, 99-100, 104; Webber Cult, supra note 2 at 179, 191; Chapman, supra note 2; Siebrasse, supra note 2.

24. Webber Negotiable Constitution, supra note 1 at 90-100; Webber Cult, supra note 2 at 194-98.

25. Webber Negotiable Constitution, supra note 1 at 115-16, 118, 123, 126-27; Webber Cult, supra note 2 at180; Siebrasse, supra note 2; Mendes, supra note 2; Chapman, supra note 2.

26. Webber Negotiable Constitution, supra note 1 at 6, 10, 116-17; Blache, supra note 2, 438-39; Siebrasse, supra note 2 at 119.

27. Webber Negotiable Constitution, supra note 1 at 116-17.

28. Ibid. at 6, 10, 116; Miller, supra note 2 at 95 and n 7.

29. Miller, ibid. at 96.

30. Webber Negotiable Constitution, supra note 1 at 121-22.

31. The (prima facie) rights-protective rhetoric of Oakes was quite quickly toned down in case such as R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, esp. para. 147Google Scholar; United States of America v. Cotroni, [1989] 1 S.C.R. 1469 Google Scholar and R. v. Keegstra, [1990] 3 S.C.R. 697 Google ScholarPubMed. In Keegstra at 735, for instance, Chief Justice Dickson said: The analytical framework of Oakes has been continually reaffirmed by this Court, yet it is dangerously misleading to conceive of s. 1 as a rigid and technical provision, offering nothing more than a last chance for the state to justify incursions into the realm of fundamental rights. From a crudely practical standpoint, Charter litigants sometimes may perceive s. 1 in this manner, but in the body of our nation’s constitutional law it plays an immeasurably richer role, one of great magnitude and sophistication.

32. Federal Republic of Germany v. Rauca (1982), 38 O.R. (2d) 705 at 715, 717 (H.C.)Google ScholarPubMed; R. v. Kehayes, [1982] N.S.J. No. 158 at para. 50Google ScholarPubMed (Cty Ct) (QL).

33. Beatty, supra note 19. However, Robert Alexy, the father of proportionality theory and Beatty’s main source of inspiration, seems to acknowledge that value attribution is not displaced by proportionality analysis. See Alexy, supra note 7 at 100, 105, 366; see also, Kumm, Mattias, ‘Political Liberalism and the Structure of Rights: On The Place And Limits of the Proportionality Requirement’ in Pavlakos, George, ed., Law, Rights, Discourse: The Legal Philosophy of Robert Alexy (Oxford: Hart, 2007) 131.Google Scholar

34. For present purposes Raz’s ‘simple’ definition of incommensurability should do: ‘[Action-options] A and B are incommensurate if it is neither true that one is better than the other nor true that they are of equal value’; see Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 322.Google Scholar

35. See for instance the dissenting opinion of Justice Gonthier in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 Google Scholar.

36. For instance: Mendes, supra note 2; Chapman, supra note 2; Siebrasse, supra note 2 at 131.

37. Baier, supra note 14 at 172.

38. Oakes, supra note 5 at 136.

39. Not unlike issues such as whether a person acted negligently or reasonably in a civil liability case.

40. A similar point is made by Danielle Pinard in ‘La promesse brisée de Oakes’ in Tremblay & Webber, supra note 19, 131, esp. at 149-50, 152.

41. See Sartor, Giovanni, ‘Defeasibility in Legal Reasoning’ [Sartor] in Bankowski, Zenon, White, Ian & Hahn, Ulrike, eds., Informatics and the Foundations of Legal Reasoning (Boston, MA: Kluwer 1995) [Bankowski et al.] 119 at 122.CrossRefGoogle Scholar

42. Clearly, a court reaching a decision on legal grounds not discussed by the parties may cause problems in terms of the adversarial principle which underlies our procedural regime.

43. This may not quite be the case with respect to so-called qualified rights (e.g., sections 7 and 8 of the Canadian Charter).

44. Raz, supra note 34 at 8. Raz acknowledges an intellectual debt to Edna Ullman-Margalit for this part of his discussion. See Ulmann-Margalit, E., ‘On Presumptions’ (1983) 80 J. Phil. 143 CrossRefGoogle Scholar.

45. Ibid. at 10.

46. Ibid. at 11.

47. Ibid.

48. Again, compare where one stands after the first step when applying s. 2(b), on the one hand, and s. 7, on the other.

49. For instance, see the discussion of defeasibility and onus of proof in Baker, G.P., ‘Defeasibility and Meaning’ in Hacker, P.M.S. & Raz, J., Law, Morality, and Society: Essays in Honour of H.L.A. Hart (Oxford: Clarendon Press, 1977) 26 at 32-33, 45.Google Scholar

50. Finnis, John ‘defeasible’ in Honderich, Ted, ed., The Oxford Companion to Philosophy (New Edition) (Oxford: Oxford University Press, 2005) 194.Google Scholar The origin of the notion is often attributed to Hart, H.L.A., who introduced it in ‘The Ascription of Responsibility and Rights’ in Flew, Antony, ed., Logic and Language (First Series) (Oxford: Basil Blackwell, 1963) 145 at 148, 150, 160-62Google Scholar.

51. See Neil MacCormick, ‘Defeasibility in Law and Logic’ in Bankowski et al., supra note 41, 99 at 104, 106.

52. See Sartor, supra note 41 at 119, 142.

53. Ibid. at 119-21. Note that the negative literal NOT A, e.g., ‘x did not kill y,’ is the complement of the positive literal A, i.e., ‘x killed y.’ Note also that the distinction between probanda and non-refutanda applies to all the elements specified in a norm antecedent. It does not only apply to facts to be proved through empirical evidence, but also to elements which express legal qualifications; see also Bayón, Juan Carlos, ‘Why Is Legal Reasoning Defeasible’ (2002) 2 Dirrito & Questioni Pubbliche 1 at 3-5Google Scholar.

54. Sartor, ibid. at 123-24.

55. Ibid. at 137-39.

56. Ibid. at 125.

57. Ibid. at 122-23.

58. Ibid. at 128, 130. Now, as to the relation between probanda and non-refutanda and the allocation of burdens of proof, typically, the complaining party is saddled with the burden of proving the probanda and the defendant with the burden of proving the (complement of) non-refutanda. Hence, by determining which elements are probanda and which are non-refutanda, and by allocating burdens of proof, the law determines which party bears the risks of non-ascertainment.

59. Ibid. at 139-41, 143.

60. Or to what Joseph Raz refers to as ‘a general non-relativized ought statement,’ which ‘usually means no more than that there is a reason for such action.’ Raz, Joseph, ‘Introduction’ in Raz, Joseph, ed., Practical Reasoning (Oxford: Oxford University Press, 1978) 1 at 14Google Scholar.

61. Hence this leads us to Raz’s conception of rights, according to which “ ‘X has a right’ if and only if … other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty”; Raz, supra note 34 at 166.

62. Moller, Pace K., ‘Balancing and the Structure of Constitutional Rights’ (2007) 5 Int’l. J. Const. L. 453 at 464-65Google Scholar, this is far from being uninteresting. For a similar outlook on TSPB see Stone Sweet & Mathews Global Constitutionalism, supra note 1 at 80-97; Sweet, Alec Stone & Mathews, Jud, ‘All Things in Proportion: American Rights Doctrine and the Problem of Balancing’ (March 12, 2010)Google Scholar, available at SSRN: at 80, 87 [Emory L.J., forthcoming]. Perhaps Webber would not reject some form of rejoinder, however, since he writes, ‘If proponents of the principle of proportionality openly maintained that a proportionality analysis merely identifies the skeleton according to which an argument should proceed, they would avoid [many of his] criticisms, but only to weaken the place of the principle of proportionality in constitutional theory and practice.’ Webber Cult, supra note 2 at 193.