Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143 at 198: justifiability, fairness or proportionality

I turn then to a consideration of the justifiability, fairness or proportionality of the scheme. I agree with McIntyre J. that any such justification must be found under s. 1 of the Charter, essentially because, in matters involving infringements of fundamental rights, it is entirely appropriate that government sustain the constitutionality of its conduct. I am in general agreement with what he has to say about the manner in which legislation must be approached under the latter provision, in particular the need for a proportionality test involving a sensitive balancing of many factors in weighing the legislative objective. If I have any qualifications to make, it is that I prefer to think in terms of a single test for s. 1, but one that is to be applied to vastly differing situations with the flexibility and realism inherent in the word "reasonable" mandated by the Constitution.

The degree to which a free and democratic society such as Canada should tolerate differentiation based on personal characteristics cannot be ascertained by an easy calculus. There will rarely, if ever, be a perfect congruence between means and ends, save where legislation has discriminatory purposes. The matter must, as earlier cases have held, involve a test of proportionality. In cases of this kind, the test must be approached in a flexible manner. The analysis should be functional, focussing on the character of the classification in question, the constitutional and societal importance of the interests adversely affected, the relative importance to the individuals affected of the benefit of which they are deprived, and the importance of the state interest.

Woolman suggests that the South African limitation’s clause in the Interim Constitution provides a partial solution to the dilemma of deciding which situations ‘demand a weaker version of the minimal impairment test and which situations require a stronger test’. He refers to the ‘reasonable and necessary’ requirement. The requirement of necessity has not been included in the final constitution.

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