Separating Minimal Impairment from Balancing: A Comment on R.v. Sharpe (B.C.C.A.)

The constitutional challenge to the child pornography legislation (R. v. Sharpe, B. C. C.A.) is used here as a vehicle to reflect on the practical application of the standards of constitutional review set by the Supreme Court in R. v. Oakes. It is shown that the B.C.C.A. in Sharpe - and the Supreme Court in previous cases - have confused the distinction between minimal impairment and balancing (the second and third stages of the Oakes proportionality test). Trying to avoid balancing and appear more objective, judges tend to over-use and misapply the minimal impairment test by examining alternatives that cannot achieve the legislative goal in full.
It is suggested that constitutional analysis in cases like R. v. Sharpe should, first, separate the two stages, i.e., balancing should be performed openly and only as part of the last proportionality stage; and second, be based on much sounder empirical foundations, including findings regarding the magnitude of the risk to
children (the chance of the risk materializing and the intensity of the harm), and the magnitude of the infringement of rights.