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Human Rights Law

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2018

Proportionality

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Full-Text Articles in Law

R. V. K.R.J.: Shifting The Balance Of The Oakes Test From Minimal Impairment To Proportionality Of Effects, Marcus Moore Jan 2018

R. V. K.R.J.: Shifting The Balance Of The Oakes Test From Minimal Impairment To Proportionality Of Effects, Marcus Moore

All Faculty Publications

The judgment of the Supreme Court in R. v. K.R.J. reflects an important potential change in the way proportionality analysis is conducted in the review of constitutional rights limitations under Canada’s Oakes test. Previously, most cases came down to the “Minimal Impairment” stage of Oakes. Its dominant role is challenged by KRJ, which places new weight on the subsequent and final “Proportionality of Effects” step. A permanent shift in the focus of the test to the Proportionality of Effects inquiry would be a landmark change in the thirty-year history of proportionality in Canada. The shift does not appear crafted to …


Rights As Trumps?, Jamal Greene Jan 2018

Rights As Trumps?, Jamal Greene

Faculty Scholarship

Rights are more than mere interests, but they are not absolute. And so two competing frames have emerged for adjudicating conflicts over rights. Under the first frame, rights are absolute but for the exceptional circumstances in which they may be limited. Constitutional adjudication within this frame is primarily an interpretive exercise fixed on identifying the substance and reach of any constitutional rights at issue. Under the second frame, rights are limited but for the exceptional circumstances in which they are absolute. Adjudication within this frame is primarily an empirical exercise fixed on testing the government’s justification for its action. In …