Bibliographic record
Abstract
The Canadian approach to analyzing Charter rights limitations — the Oakes test and its proportionality-based approach — is subject to a number of myths. This article (based originally on a lecture) seeks to expose and challenge these myths and to show the highly problematic character of Canadian proportionality analysis. In doing so, it discusses some of the links between the Canadian analysis and analyses elsewhere. It shows tendencies within the Canadian proportionality analysis that undermine rights culture and democratic culture. It shows how the Oakes test can foster inconsistency and instability in rights jurisprudence. It shows how the Canadian courts transplanted the Oakes test from its original Charter contexts into the Aboriginal rights context without any textual basis for doing so, thus showing that the imposition of a proportionality analysis was always a judicial choice rather than the result of drafting choices. The concluding section summarizes these problems and briefly considers prospects for reforming and reframing the analysis of limits on Canadian constitutional rights.
Fetched live from OpenAlex and de-inverted. Abstracts are not stored in this database: the inverted indexes are 8.6 GB of the frame’s 9.3 GB of text, and the host has 13 GB free.
How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.018 | 0.035 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.005 | 0.005 |
| Science and technology studies | 0.025 | 0.054 |
| Scholarly communication | 0.015 | 0.009 |
| Open science | 0.005 | 0.005 |
| Research integrity | 0.006 | 0.013 |
| Insufficient payload (model declined to judge) | 0.009 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".