Canada (Attorney General) v. Bedford, 2012 ONCA ... - York University

Page: 120[297] In our view, the application judge made several errors in coming to thisconclusion.[298] As we explained above, gross disproportionality describes state actions orlegislative responses to a problem that are so extreme as to be disproportionateto any legitimate government interest: PHS, at para. 133. As the Supreme Courtemphasized in Malmo-Levine, at para. 143, the applicable standard is one of“gross disproportionality, the proof of which rests on the claimant” (emphasis inoriginal).[299] Clearly, the gross disproportionality analysis entails a weighing exercise.On one side of the scale is the objective of the challenged law. On the other sideof the scale is the impact of that law on the claimant‟s s. 7 rights.Grossdisproportionality is not established when the scale is balanced, or even when ittips in favour of the claimant, but rather where there is a marked and seriousimbalance in the two sides.[300] The onerous standard that must be met to make out grossdisproportionality is illustrated in the related context of cruel and unusualpunishment under s. 12 of the Charter. In that context, the Supreme Court hasalso imposed a standard of gross disproportionality and used terms such asabhorrent or intolerable: see R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, atpara. 26. While we do not say that the same test can be applied in the s. 7