Proportionality in Canadian and German Constitutional Jurisprudence

Abstract

The Canadian Charter of Rights and Freedoms¹ had been in force for not more than four years when the Supreme Court of Canada ultimately found the answer to the question of how to interpret the limitation clause in s. 1. The answer given in R. V. Oakes² was in short: legality and proportionality.³ The first component, legality, had a clear basis in the text of s. 1 ('prescribed by law'), whereas the second, proportionality, appears to be a genuine interpretation of the words 'reasonable limits [. . .] as can be demonstrably justified in a free and democratic society.' In his opinion, Chief Justice Dickson offered a full conceptual framework for the requirement of proportionality, even though most doctrinal innovations develop over time until they find their ultimate shape. This framework, the so-called Oakes test, has been applied by the Supreme Court for two decades, although its components were clarified or modified later on, and its original rigour mitigated in certain types of cases.⁴ Justice Iacobucci had an important part in this development.⁵