Separating Minimal Impairment from Balancing: A Comment on R. V. Sharpe (B.C.C.A.

Abstract

At the center of Canadian constitutional law -- as in many other countries -- is the principle of proportionality. It is understood to include three sub-tests: rational relation, minimum impairment and balancing between the deleterious and the salutary effects of the law. In practice the courts concentrate on the second test. It is argued that in fact they often perform balancing when applying the minimal impairment test, but refrain from explicitly acknowledging it, because it appears less legitimate. The constitutional challenge in R. v. Sharpe to the child pornography legislation is used as an example to illustrate the argument.

Keywords: charter, section 1, limitation clause, proportionality, minimal impairment