I Oakes and the German Model
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
The question of whether Chief Justice Dickson, in writing the Oakes opinion, was aided by foreign examples or developed the test completely on his own appears open. It is true that some of the language in Oakes resembles the us Supreme Court opinion in Central Hudson Gas & [End Page 383] Electric Corp. v. Public Service Commission of New York,6 a commercial speech case decided in 1980. But Central Hudson was not a trend-setting decision that gained much influence outside commercial speech problems, nor is its proportionality test as elaborated and complete as the one suggested by Chief Justice Dickson. Although the us Supreme Court often resorts to balancing, it has not developed a concept of proportionality, let alone turned it into a doctrinal test comparable to the Oakes test. In a number of recent decisions Justice Breyer has shown an interest in introducing proportionality analysis into us constitutional law,7 but without convincing the majority of his fellow justices.
There is, however, one jurisdiction that could have served as a model, namely Germany.8 Here the proportionality test has been applied since the late 1950s, whenever the Constitutional Court has had to review laws limiting fundamental rights, or administrative and judicial decisions applying such laws. From Germany the principle of proportionality spread to most other European countries with a system of judicial review, and to a number of jurisdictions outside Europe. Likewise, it is in use in the European Court of Human Rights and in the European Court of Justice. The German and Canadian proportionality tests differ slightly in their terminology but look more or less alike in substance. However, a closer comparison reveals some significant differences in how the tests are applied. Perhaps the most conspicuous difference is that in Canada, most laws that fail to meet the test do so in the second step, so that not much work is left for the third step to do, whereas in Germany, the third step has become the most decisive part of the proportionality test. An examination of the difference can shed some light on the strengths and weaknesses of the two approaches.
II The Development of Proportionality in Germany
The proportionality test is older than the German Constitution. It was first developed by German administrative courts, mainly the Prussian Oberverwaltungsgericht, in the late nineteenth century and applied to police measures that encroached upon an individual's liberty or property in cases where the law gave discretion to the police or regulated police [End Page 384] activities in a rather vague manner.9 Here the principle of proportionality served as an additional constraint on police action. The action required a lawful purpose. The means adopted by the police vis-à-vis the citizen had to be suitable to reach the purpose of the law. If a less intrusive means to achieve the end of a law was available, this means had to be applied. In some cases, the courts asked, in addition, whether a proper balance had been struck between the intrusiveness of the means and the...