Minimal Impairment: An Unreasonable Measure of the Justifiable Limits of Rights

Under both the Oakes and Doré frameworks of proportionality analysis in Canada, critical in assessing the justifiability of rights limitations under section 1 of the Charter has been the “Minimal Impairment” question. Conceptually, Minimal Impairment asks whether a right has been impaired as little as possible in pursuit of the statutory objective. Applied strictly it is a virtually-impossible standard of justification. Thus, sometimes more relaxed standards are applied in practice. This double standard has caused inconsistency in which standard is applied from case- to-case (or even opinion-to-opinion in the same case). New emphasis within the tests on the Proportionality of Effects inquiry should reduce the role played by Minimal Impairment, but in fact amplifies it by adding inconsistency in when Minimal Impairment with its double standard is or is not glossed over. Further, the Doré test’s confusing formulation of Proportionality of Effects is often mistaken as just repeating the Minimal Impairment condition so that in many Doré cases effects are not weighed at all, and the test reduces to merely a question of Minimal Impairment. In short, Minimal Impairment is the root of much of the arbitrariness seen as afflicting justification assessments — crucial decisions of whether to limit a Charter right or invalidate an act of democratic government. I argue that Minimal Impairment should be replaced with a functionally-equivalent inquiry free of these defects. As well, the text and legislative history of section 1 provide no basis for a Minimal Impairment condition; rather, they are clear that Reasonable Limitations are justified. I provide a two-pronged test for assessing these. This corresponds with the standard often currently applied in practice (i.e., putting aside the case-to-case arbitrariness) so that it would not alter the substantive threshold for rightlimitations. Being a standard that is possible to consistently adhere to — as required in a system ruled by law — I argue that paradoxically this offers more protection to rights than the hollow rhetoric of Minimal Impairment. It is time that proportionality analysis in Canada reflect this, recognized long ago in the text and legislative history of section 1.

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