such objective. In a frequently-cited passage, Dickson CJC described the components of proportionality as follows:
There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R v Big M Drug Mart Ltd. at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".[1]
[106]Although there is a rational connection between capital punishment and the purpose for which it is prescribed, the elements of arbitrariness, unfairness and irrationality in the imposition of the penalty, are factors that would have to be taken into account in the application of the first component of this test. As far as the second component is concerned, the fact that a severe punishment in the form of life imprisonment is available as an alternative sentence, would be relevant to the question whether the death sentence impairs the right as little as possible. And as I will show later, if all relevant considerations are taken into account, it is at least doubtful whether a sentence of capital punishment for murder would satisfy the third component of the Oakes test.
[107]The second requirement of the Oakes test, that the limitation should impair the right "as little as possible" raises a fundamental problem of judicial review. Can, and should, an unelected court substitute its own opinion of what is reasonable or necessary for that of an elected legislature? Since the judgment in R v Oakes, the Canadian Supreme Court has shown that it is sensitive to this tension, which is particularly acute where choices have to be made in respect of matters of policy. In Irwin Toy Ltd v Quebec (Attorney General),[2] Dickson CJ cautioned that courts, "must be mindful of the legislature's representative function." In Reference re ss. 193 and 195 (1)(c) of the Criminal Code (Manitoba),[3] it was said that "the role of the Court is not to second-guess the wisdom of policy choices made by … legislators"; and in R v Chaulk, that the means must impair the right "as little as is reasonably possible".[4] Where choices have to be made between "differing reasonable policy options", the courts will allow the government the deference due to legislators, but "[will] not give them an unrestricted licence to disregard an individual's Charter Rights. Where the government cannot show that it had a reasonable basis for concluding that it has complied with the requirement of minimal impairment in seeking to attain its objectives, the legislation will be struck down."[5]
- ↑ Id. at 337.
- ↑ (1989) 39 CRR 193 at 248.
- ↑ (1990) 48 CRR 1 at 62.
- ↑ (1991) 1 CRR (2d) 1 at 30.
- ↑ Per La Forest J in Tetreault-Gadoury v Canada (Employment and Immigration Commission) (1991), 4 CRR(2d) 12 at 26. See also, Rodriquez v British Columbia (AG) (1994) 17 CRR(2d) 192 at 222 and 247.
