The Unbearable Lightness of Balancing: Towards a Theoretical Framework for the Doctrinal Complexity in Proportionality Analysis in Constitutional Adjudication
Bibliographic record
Abstract
In the 30 years that have elapsed since its adoption in 1986, the Oakes test—the analytical framework that has been dubbed, inter alia, the “holy writ” of the Canadian constitutional tradition—has gradually metamorphosed into the doctrinal Gordian knot. Indeed, the proportionality test has become so contextual and diluted that many, not altogether without reason, assert that section 1 justification has been rendered ad hoc. This, and the failure on the part of the Court to provide clear and efficient guidance as to how to navigate the complex coordinates of the doctrinal landscape in proportionality analysis, led numerous commentators to believe that, albeit once celebrated and castigated, the Oakes test has now become irrelevant. They further suggest a simple and elegant solution to traversing the doctrinal byzantine of section 1—to cut the Gordian knot and dispense with Oakes altogether. The question remains, however, is it necessarily the best solution? The purpose of this contribution is to makes a case for disentangling, rather than cutting, the doctrinal intricacy of Oakes qua discursive interpretive framework for section 1 adjudication. By anchoring the proportionality discourse of Oakes in the semantic and pragmatic properties of the Charter, I will seek to justify the invocation of the test’ complex doctrinal structure and demonstrate that all suggested proportionality’s alternatives—for instance, the construction of categorical in nature “rights-specific section 1 tests to suit the context of the various rights and freedoms protected by the Charter”—suffer from the disadvantages that are far greater than their advantages.
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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 | 0.016 | 0.018 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.003 | 0.003 |
| Science and technology studies | 0.010 | 0.079 |
| Scholarly communication | 0.017 | 0.019 |
| Open science | 0.004 | 0.007 |
| Research integrity | 0.006 | 0.011 |
| Insufficient payload (model declined to judge) | 0.005 | 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".