THE CHALLENGE OF LEGISLATION
BY MEANS OF THE CHARTER:
EVIDENTIARY ISSUES
Yves L.J. Fricot*
I. INTRODUCTION
Since the patriation of the Constitution and the entrenchment of the
Charter of Rights and Freedoms,' it has become possible to challenge
legislation' on the basis that it infringes a right guaranteed by the Charter
and, consequently, that the particular Act or portion thereof is of no force
or effect.
Such a challenge is a new phenomenon in Canadian law. Some of
the more important issues to be faced by the courts in dealing with such
challenges will concern evidentiary problems of burden of proof and
admissibility of evidence. These issues are in many respects unique
because the Charter itself places an onus on the parties to prove certain
matters. 3 Much of that proof will be based on evidence which is extrinsic
to the parties and which, prior to the Charter, had rarely been relevant.
Questions such as which party has the burden of proof, what standard
must be met, using what evidence and adduced in what manner, raise
unique issues in the challenge of legislation under the Charter. This
article addresses these questions in order to ascertain which evidentiary
approach would be most in keeping with the intent of
the Charter to
4
restrict legislative infringement of rights to a minimum.
The underlying purpose of the Charter is to limit abuse of power by
government. To this end, the rights enunciated therein, as part of the
Constitution, have status as the supreme law of Canada. Section 52
provides that:
(1) The Constitution of Canada is the supreme law of Canada, and any law
that is inconsistent with the provisions of the Constitution is, to the extent of
the inconsistency, of no force or effect.
Student-at-Law, Ottawa.
Constitution Act, 1982, enactedby Canada Act, 1982, U.K.
2 The term "legislation" as used herein includes all matters
of Parliament and the Legislatures. See R. v. Operation Dismantle
745, at 762 (App. D.) (LeDain J.).
a See Section D infra.
4 Hawkins, Making s. I Work, in THE CHARTER: THE CIVIL
Society of Upper Canada ed. 1983).
1
1982, c. 11.
within the authority
Inc., [1983] 1 F.C.
CONTEXT B-1 (Law
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(2) The Constitution of Canada includes
(a) the Canada Act 1982, including this Act;
(b) the Acts and orders referred to in Schedule 1; and
(c) any amendment to any Act or order referred to in paragraph (a) or (b).
In defining Charter rights as constitutional, section 52 is important,
from an evidentiary point of view, in three respects. First, it entrenches a
remedy for legislative violation of Charter rights by invalidating such
legislation. Second, in making the Charter a constitutional document, it
defines the nature of review. Finally, it operates to support the guarantee
of rights as enunciated in section 1.
The burden and elements of proof in a Charter case are defined to
some extent by sections 1 and 24(1). These provide that:
Guaranteeof Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.
En ircenent
24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter,
have been infringed or denied may apply to a court of competent jurisdiction
to obtain such remedy as the court considers appropriate and just in the
circumstances.
The interpretation of sections 1, 24(1) and 52, to the extent that they
affect the burden and elements of proof, will be examined in Part II. Both
the nature of the review which the courts should undertake and the use
and form of admission of the necessary extrinsic evidence will be
analyzed in Part III.
II. ELEMENTS AND BURDEN OF PROOF
Who must prove what? Case law to date would appear to indicate
that the process of reviewing the constitutionality of legislation by means
of the Charter involves two steps. First, it is incumbent on the applicant
to demonstrate that a breach of a Charter right exists. Once this has been
accomplished, the onus shifts to the party who desires to uphold the
limitation. That party must prove that the restriction of the right is such a
"reasonable limit prescribed by law as can be demonstrably justified in a
free and democratic society" pursuant to section 1.5
The issue of whether or not section 24 is the exclusive vehicle by
which a challenge under the Charter may be undertaken has yet to be
' See, e.g., Re Federal Republic of Germany and Rauca, 41 O.R. (2d) 225, at 240,
145 D.L.R. (3d) 638, at 654 (C.A. 1983) (per curiam):
In our view, the issue has to be approached in two steps. First, it has to be
determined whether the guaranteed fundamental right or freedom has been
infringed, breached or denied. If the answer to that question is in the
affirmative, then it must be determined whether the denial or limit is a
reasonable one demonstrably justifiable in a free and democratic society.
1984]
EvidentiaryIssues in CharterChallenges
resolved. It may be that section 52 offers an alternative means by which
such issues may be raised. In addition, those cases which have adopted
the two-stage approach to the litigation of these Charter issues have done
so without considering the effect of the words "rights or freedoms, as
guaranteedby this Charter . . ." (emphasis added) in section 24 on the
burden imposed by section 1.
A. The Relationshipbetween Section 24 and Subsection 52(1)
It is open to question whether subsection 52(1) provides an
independent means by which standing may be granted to seek declaratory
relief against legislative violation of Charter rights or whether section 24
constitutes an exclusive remedy for infringements.
The issue is important for two reasons. First, section 24 incorporates
a standing test while subsection 52(1) does not. If the remedy of striking
down legislation on the basis of inconsistency with the Charter operates
only under section 24, there can be no standing until there has in fact
been a breach6 or until there exists a foreseeable situation of an
apprehended but incomplete Charter violation. 7 If, on the other hand,
subsection 52(1) does provide an independent right of action, the
question of standing is not restricted by the language of the Charter and
would need to be judicially determined.
The latter approach was adopted in Re Allman and Commissioner of
the Northwest Territories,' wherein it was held that the right to seek
declaratory relief existed under subsection 52(1) independently of
whether an applicant's rights had been infringed or denied so as to bring
him within subsection 24(1). The Court adopted the principle established
in Minister of Justice of Canada v. Borowski 9 that standing may be
granted to an applicant who appears to be directly affected by the
legislation in question.
A further reason for permitting standing under subsection 52(1)
relates to the nature of the alleged violation. An important distinction
exists between those cases in which the application of a statute is
questioned and those in which the statute itself is impugned.
In the former case, concrete facts need to be adduced and the
appropriate remedy may not necessarily include a declaration of
invalidity. In such a situation, a case by case approach is probably more
appropriate and, if required, a stay of proceedings or an injunction could
6 The wording of sub. 24(1) would appear to require that a breach occur before an
application can be made.
I Quebec Ass'n of Protestant School Bds. v. A.G. Quebec (No. 2), 140 D.L.R.
(3d) 33, at 42-43 (Que. C.S. 1982), aff'd [1983] Que. C.A. 77, 1 D.L.R. (4th) 573,
aff'd (not yet reported, S.C.C., 26 Jul. 1984).
8 144 D.L.R. (3d) 467 (N.W.T.S.C. 1983).
9 [1981J2 S.C.R. 575, 130 D.L.R. (3d) 588.
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[Vol. 16:565
suffice. ' 0 Such an application would have to be made to the court under
section 24. On the other hand, where the statute itself is attacked, the
breach is ascertainable on a mere reading of the law and the only
appropriate remedy, in fact the constitutionally defined remedy, is a
declaration of invalidity.
It should be noted that a declaratory form of relief is possible under
section 24.11 Furthermore, the Borowski 2 standing test was favourably
considered in Quebec Ass'n of Protestant School Boards v. AttorneyGeneral of Quebec (No. 2)'" as a means of permitting a court to grant
standing in cases not literally covered by the section 24 test. 14 It has been
suggested that the rationale that would permit a separate right to relief
under subsection 52(1) is incorrect, since it depends on a literal reading
of subsection 24(1). '1 It should be noted, however, that section 52
implies that any court or tribunal must disregard any statute inconsistent
with the Charter. As noted by Tarnopolsky and Beaudoin:
No special authority is needed for this mode of enforcement: it follows
inexorably from the fact that the inconsistent law is of no force or effect. Thus
[under section 52], the provisions of the Charter may be relevant and
applicable and therefore enforceable in any proceeding before any court or
tribunal in which one side relies on a statute and the other side claims that the
statute is a nullity because it is contrary to the Charter.",
Further, there is nothing within section 24 to suggest that it precludes the
use of section 52 (apart from section 24 itself) in order to obtain relief.'"
As Manning notes, section 24 is not mandatory.' 8 Case law would appear
10 R. v. D.A.C., 6 C.C.C. (3d) 246, at 250, 150 D.L.R. (3d) 151, at 155-56
(Man. Q.B. 1983) (Hewak J.):
[G]enerally speaking the laws of the land must be applied. However, if in
applying those laws the rights and freedoms of an individual as specified in
the Charter are violated, then that individual can rely on the Charter to have
his rights and freedoms enforced. It would not be reasonable or desirable to
conclude that because a law is as capable of capricious and unjust application
as it is of benevolent and just application that it should be declared void and
of no force and effect. Surely, the better course would be for the court to
examine how that specific law was applied and then determine whether an
individual's rights and freedoms had been infringed. In other words, deal
with the factual situation as it exists in the case under consideration. Where
an application of the law clearly results in a violation of rights under the
Charter then the court is bound to address that violation and remedy the
wrong.
" Quebec Ass'n of ProtestantSchool Bds. , supra note 7, at 40-41.
12 Supra note 9.
" Supra note 7, at 41-42.
14 Id. Mr. Justice Desch&nes adopts the solution proposed in P. HOGG, CANADA
ACT 1982 ANNOTATED 65 (1982).
11 Re Allman and Commissioner of N.W.T., supra note 8, at 470.
16 W. TARNOPOLSKY & G. BEAUDOIN, THE CANADIAN CHARTER OF RIGHTS AND
FREEDOMS: COMMENTARY 13 (1982).
"7 M. MANNING, RIGHTS, FREEDOMS AND THE COURTS: A PRACTICAL ANALYSIS
OF THE CONSTITUTION ACT, 1982, at 468 (1983).
18
Id.
Evidentiary Issues in CharterChallenges
1984]
to confirm that section 52 can be used independently of section 24 to seek
a declaration that particular legislation is inconsistent with the Charter
and of no force or effect. 19 For example, in the Quebec Ass'n of
ProtestantSchool Boards ° case, the Supreme Court of Canada makes no
mention of section 24, but rather deals only with section 52.
B. The Relationship between Sections I and 24
Sections 1 and 24 can interact in either of two ways. First, it is
possible for section 24, in providing relief against the infringement of
rights "as guaranteed by this Charter" (emphasis added), to be
construed as referring to those rights as limited by section 1. It follows
that an applicant would need to demonstrate both the existence of a
breach and the inapplicability of the section 1 limitation clause. If, on the
other hand, sections 1 and 24(1) do not so interact, the burden imposed
by section 1 to justify the limitation would fall on the party seeking its
benefit. This latter interpretation has already been approved in several
cases. "2 1 Since the import of the words "as guaranteed by this Charter"
does not seem to have been considered in any of these decisions, it has
been suggested 22 that it may yet be in issue.
What then is the importance of these words? It is my view that, in
this context, this phrase simply distinguishes between those rights which
are expressly provided for in the Charter and those whose existence is
affirmed by section 26. Only the former may provide the basis of a
section 24 application. 2 3 Had the phrase been omitted, the breach of any
right or freedom, whether expressly defined or not, could have given rise
to a successful application. The inclusion of the phrase limits the right of
application under section 24 to those whose Charter rights are violated.
It should be noted, however, that such an interpretation does not
prevent those rights affirmed by section 26 from being given effect to by
section 52 of the Charter.
19
20
Id. at 469.
Supra note 7.
21 Quebec Ass'n of ProtestantSchool Bds., supra note 7; Re Federal Republic of
Germany and Rauca, supra note 5, aff'g 38 O.R. (2d) 705, 70 C.C.C. (2d) 416 (H.C.
1982); Re Cadeddu and The Queen, 40 O.R. (2d) 128, 4 C.C.C. (3d) 97 (H.C. 1982),
appeal abated 146 D.L.R. (3d) 653 (Ont. C.A. 1983); Re Southam Inc. and The Queen
(No. 1), 41 O.R. (2d) 113, 3 C.C.C. (3d) 515 (C.A. 1983), Re Jamieson and The Queen,
70 C.C.C. (2d) 430, 142 D.L.R. (3d) 54 (Que. C.S. 1982).
22 R. MCLEOD, J. TAKACH, H. MORTON, M. SEGAL, THE CANADIAN CHARTER OF
RIGHTS: THE PROSECUTION AND DEFENCE OF CRIMINAL AND
OFFENCES,
4 -41-44 (1983).
OTHER STATUTORY
23 See Re R. and Potma, 37 O.R. (2d) 189, at 200, 136 D.L.R. (3d) 69, at 77
(H.C. 1982); Re R. and Shea, 1 C.C.C. (3d) 316, at 321, 142 D.L.R. (3d) 419, at 423
(Ont. H.C. 1982) wherein it was held that s. 24 applies only to those rights "guaranteed by the Charter, which means only those rights on and after the Charter became
law ...".
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[Vol. 16:565
C. The Two Step Process:Elements and Burden of Proof
Step 1: Proofof Breach
Although it is clear that an applicant bears the onus of demonstrating
that impugned legislation breaches a Charter right, the burden of proof
which must be satisfied is not defined. Where it is the legislation itself
which is attacked, it would seem to follow from the analysis in Quebec
Ass'n of ProtestantSchool Boards 4 that the breach must be ascertainable
2 5
on the face of that legislation.
When, however, it is the application of the legislation which is
attacked, the existence of a breach may depend on concrete facts. On the
basis of Re Cadeddu and The Queen,26 a party need only establish a
prima faicie violation of his rights to shift the onus of justifying the
limitation to the Crown. In Re Janieson and The Queen,27 however, it
was held that a person who alleges that his rights have been infringed or
denied has the initial burden of proving such infringement or denial to the
judge's satisfaction on a preponderance of the evidence.
The point was addressed in the following manner by Potts J. in
Cadeddu:
A party alleging that his rights have been violated must establish a prina
facie violation of the right. Of course, at this stage it is open to the opposing
party to show that no such primafaicie violation exists. Once, however, the
court is satisfied that what has occurred is an apparent infringement of the
wording of the right, the onus shifts to the Crown to demonstrate that there
exists a reasonable limit on the right,
prescribed by law, that can be justified
28
in a free and democratic society.
24
Supra note 7.
1 would suggest that the proper approach in this situation is that recommended
by McDonald J. in Soenen v. Director of Edmonton Remand Centre, 48 A.R. 31, at 38,
6 C.R.R. 368, at 377 (Q.B. 1983):
Whether Canadian courts are asked to scrutinize legislation, subordinate
legislation or administrative discretion exercised by virtue of statutory
authority, it seems to me that the rights and freedoms guaranteed by the
Charter must, before any application of the limiting part of s. 1, be
interpreted in an absolute sense that does not involve the application of any
judicially-created criterion designed to limit the scope of judicial review. It is
only when the limiting part of s. 1 is invoked and applied that any issue of
balancing of individual interests against those of the collectivity, or any other
such judicially-created limiting device, comes into play. If it were otherwise,
that is if the guaranteed rights were themselves relative in their content, s. 1
would be redundant. Moreover, the framers of the Charter having taken the
care in s. I to articulate the grounds on which the guaranteed rights and
freedoms may lawfully be limited, it would be presumptuous for Canadian
judges to develop other grounds on which those rights and freedoms might be
limited.
26 Supra note 21, at 138, 4 C.C.C. (3d) at 107-08.
27 Supra note 21, at 436, 142 D.L.R. (3d) at 60.
28 Supra note 21, at 138, 4 C.C.C. (3d) at 107-08.
25
EvidentiaryIssues in CharterChallenges
1984]
In Jamieson, Mr. Justice Durand reviewed the arguments presented to
him on this point and concluded that:
The Attorney-General for Canada, for his part, stated that if someone alleged
an infringement of a constitutional right, it was necessary for him to prove
this to the judge's satisfaction on the preponderance of evidence. This is not
the usual burden on the Crown of providing proof beyond a reasonable doubt
or that on the accused of raising a reasonable doubt, but a burden located
somewhere between these two extremes that he referred to as "the burden of
persuasion".
The court finds that this last contention is correct.
The most elementary logic has always maintained that it was29 not
sufficient to allege something but rather that it was necessary to prove it.
It is quite possible to rationalize these two decisions. The
distinction, I would suggest, is one of terminology. The term prinaficie
can be used to refer to two differing degrees of cogency of evidence. 3" In
its first and most common sense, it is used to refer to the situation in
which "a party's evidence in support of an issue is sufficiently weighty
although, as
to entitle a reasonable man to decide the issue in his favour,
31
a matter of common sense, he is not obliged to do so".
In the second sense, the evidence must be of such a degree of
cogency that it can be said to be "presumptive". 3 2 When used in this
sense, the words prina.ficie imply that "a party's evidence in support of
an issue is so weighty that no reasonable man could 33help deciding the
issue in his favour in the absence of further evidence".
It is suggested that, in the present context, the words prima ficie
must be applied in the latter sense.
Sections 1 and 52 of the Charter can thus be said to create a
presumption of invalidity once there has been shown to exist a breach of a
guaranteed right. This is reflected in the shifting of the onus of adducing
evidence from the applicant to the Crown once a violation of a guaranteed
right has been established.
It follows that the evidence initially adduced by the applicant must
be of such cogency that this presumption can properly be invoked. This
implies that enough evidence has been presented to the court by the
applicant to require it to decide the issue of invalidity in his favour in the
absence of further Crown evidence directed to section 1 issues .34
29 Supra note 21, at 435, 142 D.L.R. (3d) at 59. See R. v. Burnshine, [1975] 1
S.C.R. 693, at 707-08, 44 D.L.R. (3d) 584, at 594 (1974); Re Gittens and the Queen, 68
C.C.C. 438, at 447, 137 D.L.R. (3d) 687, at 695 (F.C. Trial D. 1982).
30 CROSS ON EVIDENCE 26 (4th ed. 1974).
31
32
Id.
Id. at 27.
33Id. at 26.
R. v. Carroll, 40 Nfld. & P.E.I.R. 147, 4 C.C.C. (3d) 131 (P.E.I.C.A. 1983);
R. v. Cook, 56 N.S.R. (2d) 449, 4 C.C.C. (3d) 419 (C.A. 1983); Re Cadeddu and The
Queen, supra note 21.
34
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The "burden of persuasion" to which Mr. Justice Durand refers is
thus not inconsistent with the establishment of the prima ficie violation
referred to in Cadeddu. 35 The prima faicie violation is simply not
established until the applicant has proven this "to the judge's satisfaction
on the preponderance of evidence" .36 However, once this has been done,
the evidence can truly be said to be presumptive in that the issue of
invalidity must be decided in the applicant's favour in the absence of
further evidence.
I would disagree with the decision in R. v. T.R. (No. 1)3 7 insofar as
McDonald J. implies that there is a positive onus on an applicant to
tender section 1 evidence in the absence of any such evidence by the
Crown. 38 It is certainly true that in many cases the applicant will respond
to the evidence tendered by the Crown, but until this is done it would, I
suggest, run counter to the intent of the Charter to place any onus on him
to challenge the reasonableness or justifiability of the legislation, given
that he has already demonstrated that it violates a fundamental right.
Mr. Justice Lambert, dissenting in R. v. Smith, identified the
difficulty which lies in this approach:
The difficulty with that approach lies in its effect on other cases. If the
burden is not discharged by the Crown in one case and there is a decision that
the Charter has been infringed, what effect does that have on future cases?
Can the Crown try to discharge the burden in a second similar case? If it
succeeds, then the Charter would not have been infringed in the second case.
Thereafter, will every case depend on the evidence that was led by the
Crown? Using the issue in this case as an example, would s. 5(2) of the
Narcotic Control Act be constitutionally valid and applicable in those cases
where the Crown did not prove, on a balance of probabilities, that s. 5(2) was
a reasonable limit on arbitrary imprisonment that could be demonstrably
justified in a free and democratic society, but unconstitutional and
inapplicable
in those cases where the Crown did not discharge that burden of
39
proof?
The question under section 1 is a question of law. Where the section
1 issues are fully explored by both sides and the court has been presented
with evidence, it is my opinion that the question of invalidity, once
decided by the court, is as subject to the principles of stare decisis as is
any other question of law.
A more interesting problem arises where the Crown fails to tender
any evidence as required by section 1. Mr. Justice Lambert's solution to
this dilemma was to propose that, in such a case (as was the one before
him), no order be made declaring the infringing statute unconstitutional.
Rather he would have decided only that it was not applicable in the case
at bar.40
3' Re Cadeddu and The Queen, id.
Jamieson, supra note 21, at 435, 142 D.L.R. (3d) at 59.
37 10C.C.C. (3d) 481 (Alta. Q.B. 1984).
38 Id. at 489.
39 39 C.R. (3d) 305, at 328, 8 D.L.R. (4th) 565, at 584 (B.C.C.A. 1984).
40 Id. at 329, 8 D.L.R. (4th) at 585.
36
1984]
Evidentiary Issues in CharterChallenges
The problem raised by this solution is that section 52 of the Charter
mandates that a law inconsistent with the Charter is of no force or effect.
At first glance, it would seem that Mr. Justice Lambert's approach
contradicts section 52. There is, however, much to be said for an
approach which does not result in a declaration of invalidity where the
section 1 issue has not been fully argued and the court has not been
presented with all of the facts.
I would suggest that Mr. Justice Lambert's approach is the proper
one. The practical effect in Charter cases in which section 1 is not fully
addressed by the Crown would thus be, first, that the decision of a court
on the initial issue of whether there is a violation of a Charter right would
be binding on other courts, and second, that the section 1 issue going to
legislative invalidity would remain open for full argument on appeal or in
subsequent cases. It is only when the section 1 issue has been fully
argued that the decision of invalidity would become binding on other
courts. This approach has the advantage of giving relief where Charter
rights have been breached without causing statutes to be declared
unconstitutional before the issues have been fully argued.
The problem remains that support for such an approach must be
found within the provisions of the Charter. One possible solution might
be, in appropriate cases, to interpret section 52 so as to render a statute of
no force or effect for the purpose of the instant case. I would argue,
however, that this is not a desirable solution as it has the effect in law of
rendering a statute void in one instant and valid in the next.
The desired result can however be achieved by granting a remedy
pursuant to subsection 24(1) of the Charter. That section empowers a
court, where it has been shown that Charter rights have been violated by a
statute, to grant a just and appropriate remedy. There is nothing in the
Charter which would preclude as a remedy a refusal to give effect to the
statute in question. Such an approach would meet the needs of both the
instant case and the concerns of the court for consistency in the law.
Step 2: The Constitutionalityof the Limitation
Section 1 of the Charter recognizes that the individual rights
contained therein must be subject to certain limitations if there is to be a
balance between private and societal interests. As indicated, the onus of
satisfying the court that the limitation in question should be upheld rests
with the party claiming the benefit of the limitation. As noted by Mr.
Justice Bouck inR. v. S.B.:
The Charter establishes certain rights and freedoms for all Canadians. Where
it is suggested, these rights and freedoms ought to be diminished in some way
by the application of s. 1,41 then the party who relies upon the section must
establish that proposition.
41
C.C.C. (3d) 73, at 79, [1983] 1 W.W.R. 512, at 519 (B.C.S.C. 1982); rev'd
on other grounds, 3 C.C.C. (3d) 390, 32 R.F.L. (2d) 432 (B.C.C.A. 1983). See also R.
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This is in keeping with the principle
that the party who claims the benefit
42
of an exception must prove it.
A most important restriction is placed on the availability of section 1
as a means of upholding the validity of legislation by the use of the word
"limits". The section cannot be relied upon where the breach in question
involves the complete denial of a right and not merely its limitation. This
was pointed out in Quebec Ass'n of ProtestantSchool Boards, where Mr.
Justice Desch~nes stated that:
The Charter clearly makes a basic distinction between a limitation and a
denial of a right.
Section 1 of the Charter allows rights guaranteed by the Charter to be
limited, provided that the four conditions tied to this permission, including
[the] restriction "subject to reasonable limits", are respected.
However, in s. 24, the Charter speaks of an "infringement" or
"denial" of these guaranteed rights. The Charter does not recognize any
loopholes and it expressly opens the door to judicial sanction against such
infringement or denial in favour of the individual affected.
The English version is exactly to the same effect.
The frontier is, therefore, clearly marked. No legislature can cross it. It
may limit
a guaranteed right, but it may not abrogate or "deny" such a
3
right.4
Whether or not a particular violation constitutes an outright denial of a
Charter right or merely a limitation is a question of law. The Supreme
Court of Canada is clear, however, that limitations cannot be exceptions
to guaranteed rights:
The provisions of s. 73 of Bill 101 collide directly with those of s. 23 of the
Charter, and are not limitations which can be legitimized by s. 1 of the
Charter. Such limitations cannot be exceptions to the rights and 44freedoms
guaranteed by the Charter or amount to amendments of the Charter.
A further point should be made before consideration is given to the
nature of the conditions required to be satisfied by section 1. It was
v. Oakes, 40 O.R. (2d) 660, 2 C.C.C. (3d) 339 (C.A. 1983); R. v. Stanger, 46 A.R.
241, 7 C.C.C. (3d) 337 (C.A. 1983); R. v. G., 10 C.C.C. (3d) 44, 5 D.L.R. (4th) 507
(Alta. Q.B. 1983); R. v. Carroll, supra note 34; R. v. Cook, supra note 34.
42 Quebec Ass'n of ProtestantSchool Bds., supra note 7, at 57-59. See also Re
Southam Inc. and The Queen (No. 1), supra note 21; R. v. Big M. Drug Mart Ltd., 49
A.R. 194, 9 C.C.C. (3d) 310 (C.A. 1983); R. v. Schwartz, 10 C.C.C. (3d) 34, at 42, 5
D.L.R. (4th) 524, at 532 (Man. C.A. 1983) (Huband J.A.):
[Tihe threshold question is whether a reverse onus clause violates the
presumption of innocence according to law. . . . If it does not, then the
inquiry need go no further. If it does, then the reverse onus might still be
saved if it falls within the description of a reasonable limitation as can be
demonstrably justified in a free and democratic society.
43 Quebec Ass'n of Protestant School Bds., id. at 59. See also Re Jamieson and
The Queen, supra note 21; R. v. S.B., supra note 41, at 87, [19831 1 W.W.R. at 528;Re
Ontario Film & Video Appreciation Soc'y and Ontario Bd. of Censors, 45 O.R. (2d) 80,
at 82, 7 C.R.R. 129, at 131 (C.A. 1984), aff'g 41 O.R. (2d) 583, 147 D.L.R. (3d) 58
(Div'l Ct. 1983).
41 Quebec Ass'n of ProtestantSchool Bds., id. at 25 (S.C.C.).
Evidentiary Issues in CharterChallenges
1984]
argued by Quebec in the Quebec Ass'n of Protestant School Boards45
case that a distinction should be made between cases where the impugned
legislation applies to a collective group as opposed to individuals. In the
former case, legislation which merely restricts the rights of the
collectivity should not be deemed to fall outside section 1, because
within the context of its operation, certain individuals are completely
deprived of their rights. The Superior Court dismissed this contention
and stated that:
Quebec's argument is based on a totalitarian conception of society to
which the court does not subscribe. Human beings are, to us, of paramount
importance and nothing should be allowed to diminish the respect due to
them. Other societies place the collectivity above the individual. They use the
Kolkhoze steamroller and see merit only in the collective result even if some
individuals are left by the wayside in the process.
The Quebec clause does not constitute a limitation, and even less a limitation
"within reasonable limits", of the rights guaranteed by s. 23 of the Charter.
The Quebec clause is, for each citizen affected by it, a denial of the rights
which the Canadian
Charter guarantees him: the Quebec clause must,
46
therefore, yield.
D. Section 1: The Nature of the Conditions to be Satisfied
Section 1 imposes four criteria by which a legislative limitation is to
be evaluated, all of which must be satisfied before the limitation can be
upheld as constitutional. The restriction in question must be:
(i) a reasonable limit;
(ii) prescribed by law;
(iii) such as can be demonstrably justified;
(iv) in a free and democratic society.
Each of these criteria will be examined, although not in that order, in the
discussion which follows.
1. Prescribedby Law
Since we are concerned here only with legislative enactments, this
requirement will almost always have been met. There exist, however,
two situations in which this might not be so. Where the "law" in
question has not been properly promulgated it would probably not meet
this criterion.4 7 The burden of establishing this, however, would rest on
45Id.
46
Id. at 64-65.
This would appear to be the case given the analysis adopted by Mr. Justice
Desch~nes in Quebec Ass'n of ProtestantSchool Bds. , id at 67.
17
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[Vol. 16:565
the party alleging the defect. For the purposes of enactment, the
presumption of the validity of legislation would be in effect .18
A second situation in which it is possible for this criterion to be
determinative is where the application of the legislation is attacked. As
was held in Re Ontario Film & Video Appreciation Soc'y and Ontario
Board of Censors, 9 the requirement contemplates that the limitation
must have legal force. Therefore, in the context of administrative law, a
limitation simply left to administrative discretion could not be considered
to be one prescribed by law.
It remains to examine what meaning is to be attributed to the word
"law". Does it include only statutory law, or does it extend to all written
law (regulations and orders-in-council) and to judge-made law?
Mr. Justice Evans of the Ontario High Court of Justice in Re Federal
Republic of Germany and Rauca held that:
The phrase "prescribed by law" requires the limitation to be laid down
by some rule of law in a positive fashion and not by mere implication. The
rule of law containing the limitation will normally be statutory although it is
possible that it may be found in delegated legislation or in the form of a
common law rule. 50
Such an interpretation, which includes all forms of "law", would appear
to be correct, particularly in light of the term "droit" which appears in
the French language version of the Charter. The use of the word "droit",
as opposed to the word "loi", is important since the latter refers only to
enactments while the former comprises judicial
legislative and executive
51
decisions as well.
48 As
will be discussed later, this presumption does not extend to the
constitutionalityof the legislation.
49 Supra note 43.
50 38 O.R. (2d) 705, at 716, 70 C.C.C. (2d) 416, at 428 (1982). See also Ontario
Film & Video Appreciation Soc'y, id.; Re W and Children's Aid Soc'y of the Regional
Municipality of York, 17 A.C.W.S. (2d) 147 (Fam. Ct. 1982). The view taken by the
Court in Rauca was adopted in Re McCutcheon and City of Toronto, 41 O.R. (2d) 652,
at 662, 147 D.L.R. (3d) 193, at 202-03 (H.C. 1983) (Linden J.):
[S.] 52 used the word "law" in its widest sense. When it declares that the
Constitution of Canada ... is supreme over "any law" that is inconsistent
with it, there is no doubt that the term "law" is meant to encompass every
type of law that regulates the lives of Canadians. Hence, law includes not
only statute law, but also common law, regulations, and any other binding
legal norms, including municipal by-laws.
"any law" in s. 52(1) of the
* . . There is no reason to give the words
Constitution Act, 1982 a narrower interpretation that that given to "law" in
s.1.
51 The phrase has also been considered in the context of the European Convention
on Human Rights in Sunday Times v. U.K., 2 E.H.R.R. 245, at 271 (Eur. Ct. on Human
Rights 1979) where it was said that two requirements flow from this expression:
Secondly, a norm cannot
First, the law must be adequately accessible ....
be regarded as a "law" unless it is formulated with sufficient precision to
1984]
Evidentiary Issues in Charter Challenges
2. ReasonableLimits
It has been held that the condition of reasonableness relates to the
52
means employed to obtain the objective of the impugned legislation.
Chief Justice Desch~nes in Quebec Ass'n of Protestant School Boards
' 53
canvassed the meaning attributed to the notion of "reasonableness
and came to the following conclusions:
1. A limit is reasonable if it is a proportionate means to attain the purpose of
the law;
2. Proof of the contrary involves proof not only of a wrong, but a wrong
which runs against common sense; and
of too readily substituting their
3. The courts must not yield to the temptation
54
opinion for that of the Legislature.
The adoption of a reasonableness test in section Iraises two issues:
(a) How closely the infringement must55be scrutinized; and
(b) What sorts of reasons will suffice.
As Conklin notes:
[T]he crucial determinant to an effective protection of rights is not whether
rights have been constitutionalized per se, but rather whether they have been
constitutionalized in a manner that requires, in the first place, a strict
standard of scrutiny over any alleged restriction of the rights and,56secondly, a
justification of the restriction in terms of certain kinds of reasons.
It is self-evident that the level of scrutiny and the reasons required
by a court will have a great impact on the type and amount of evidence
which will have to be adduced.
The degree of scrutiny undertaken will depend on several factors:
(a) whether it will be constitutionally acceptable for a court to assume
reasons for the infringement or whether it will be necessary for reasons to
be articulated; (b) the importance attached to alternative means57 of
achieving the legislative objective; and (c) the importance of motive.
Conklin notes that the courts have adopted four varying approaches
to these issues:
enable the citizen to regulate his conduct: he must be able. . . to foresee, to a
degree that is reasonable in the circumstances, the consequences which a
given action may entail.
Cited with approval in R. v. Red Hot Video, 6 C.C.C. (3d) 331, at 352 (B.C. Prov. Ct.
1983).
32 Quebec Ass' n of Protestant School Bds., supra note 7, at 71.
53 Id. at 71-77.
54 Id. at 77. See also Jamieson, supra note 21.
5 Conklin, Interpreting and Applying the Limitations Clause: An Analysis of
Section 1,4 Sup. CT. L. REV. 75, at 77 (1982).
56 Id. at 78.
5 Id.
Ottawa Law Review
[Vol. 16:565
(a) The "reasonable relationship" doctrine
This doctrine requires only "that a court . . . assess whether a
challenged legislative enactment possesses a reasonable connection
between the classification in the statute and the statute's overall
purpose".58 Two consequences flow from the doctrine. First, the party
who seeks to impugn the classification carries the burden of proving that
it does not rest upon any reasonable basis,5 9 and second, the test allows a
court to assume reasons for the infringement. 6" This test has been applied
by Canadian courts in construing the Bill of Rights.'
Although this approach may be relevant in deciding the initial
62
question of whether or not a Charter right has in fact been breached, I
agree with Conklin that this doctrine is not proper for section 1 analysis.
As will be discussed, there is no presumption of the constitutionality of
infringement in section 1 cases, and since the doctrine does not require
scrutiny of "legislative ends or whether less onerous means were
available" ,63 it runs counter to the use of the words "demonstrably
justified" in section 1 and to the notion of proportionality as defined in
Quebec Ass' n of ProtestantSchool Boards6 4 and Re Jamieson 65
(b) The "compelling state interest" test
Conklin describes this test in the following manner:
Briefly, this doctrine encouraged courts to make three different inquiries.
First, is the purpose of the impairment of one's constitutional rights
"permissible" or "legitimate"; secondly, if legitimate, could the purpose
have been more adequately served by some "less onerous alternative"; and
thirdly, was the state's purpose sufficiently compelling to outweigh the
undesirability of the legislative classification? Purposes were considered
impermissible or illegitimate if they involved an "invidious" discrimination against a "suspect" category, such as race, wealth, sex or illegitimacy
of birth or, alternatively, if the legislation impaired such "fundamental
interest" as the right to appeal, the right to counsel, the right to interstate
travel, or the right to vote. Once the court determined that a legislative
classification was "inherently suspect" or infringed "fundamental interests", the burden of proof shifted to the government to establish why there
were reasons, sufficiently compelling, to warrant the impairment. Even if the
58
Id. at 79.
59 Lindsley v. Natural Carbonic Gas Co., 31 S. Ct. 337, at 340 (1911).
60 Supra note 55, at 79.
61 R.S.C. 1970, App. III. See Bliss v. A.G. Can., [1979] 1 S.C.R. 183, 92
D.L.R. (3d) 417 (1978); A.G. Can. v. Canard, [1976] 1 S.C.R. 170, 52 D.L.R. (3d) 548
(1975); R. v. Burnshine, [1975] 1 S.C.R. 693, 44 D.L.R. (3d) 584 (1974); A.G. Can. v.
Lavell, [1974] S.C.R. 1349,38 D.L.R. (3d) 481 (1973).
62 See, e.g., Re Maltby and A-G Sask., 2 C.C.C. (3d) 153, at 165-66, 143 D.L.R.
(3d) 649, at 660-61 (Sask. Q.B. 1982).
63 Supra note 55, at 80.
64
Supra note 7.
65 Supra note 21. See discussion at notes 86 to 93 infra and accompanying text.
1984]
EvidentiaryIssues in CharterChallenges
government could establish weighty reasons, the challenged enactment was
still held to be unconstitutional if the government or legislature could have
accomplished the same task by less onerous means. 66
The type of scrutiny undertaken by the Warren Court in these cases
appears to be very similar to that undertaken by Mr. Justice Desch&nes in
Quebec Ass'n of ProtestantSchool Boards,67 and seems consonant too
with the intent of the Charter that any infringement of rights be strictly
scrutinized to ensure that it is kept to a minimum.
(c) The "means orientedtest with a bite"
This test was developed and advocated by Professor Gunther68 in
response to criticisms of the compelling state interest test. The scrutiny
of the reviewing court, he suggests, should be restricted to two questions:
(a) is there a "substantial" connection between the challenged classification and the legislative end; and (b) were reasons articulated at the time
of enactment? This test focuses on the issue of "means" rather than on
the impermissibility of the objective itself. To this end, it may prove
useful in further defining what are reasonable limits under the Charter,
but its usefulness is restricted to that issue since the Charter requires a
scrutiny of legislative ends in all cases by its use of the words
"demonstrably justified".
(d) The "sliding-scale" approach
This approach "contemplates a 'spectrum of standards' for reviewing alleged infringements of constitutional rights" based upon the
"constitutional and societal importance" of any adversely affected
interests. 6 9 This, in the United States, involves an assessment of which
rights are fundamental and which are not. "Accordingly, the level of
scrutiny that would be called for in a particular case would depend upon
the substantiality of the nexus between the effective exercise of one's
constitutional rights in the case at bar and the rights expressly guaranteed
by the constitution.' '70
Of course, the Charter already identifies those rights that are
fundamental and distinguishes them, through section 26, from other
rights. It is doubtful, therefore, that this test has any application here.
The "compelling state interest" test had been criticized "because courts
failed to offer principled guidance as to why a category was suspect or an
6 Supra note 55, at 80.
67 Supra note 7.
68 Gunther, The Supreme Court 1971 Term Forward: In Search of Evolving
Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L.
REV. 1, at 20 (1972).
69 Supra note 55, at 81.
70
Id.
Ottawa Law Review
[Vol. 16:565
interest fundamental, and because the choice of label seemed to
determine the constitutional outcome' '.71 It followed that the doctrine's
application appeared to be arbitrary and capricious. It is suggested,
however, that the charges levied against this doctrine are not necessarily
relevant in Canada, since the Charter itself defines the fundamental
interests that are to be protected and hence the "suspect" purposes which
are to be reviewed. The compelling state interest test would seem to
reflect better than the others, on the issue of reasonableness, the need for
strict scrutiny in balancing the interests of the individual against those of
society.
An important issue which must be addressed is the importance a
court should place on the legislative act itself as evidence of reasonableness. Traditionally, legislative responsibility has been considered to be
outside the purview of the courts. As Chief Justice Laskin noted in
Reference re Anti-Inflation Act:
[T]he wisdom or expediency or likely success of a particular policy expressed
in legislation is not subject to judicial review. Hence, it is not for the Court to
say in this case that because the means adopted to realize a desirable end...
may not be72 effectual, those means are beyond the legislative power of
Parliament.
The Supreme Court has recognized exceptions to this rule and in
certain cases has examined the actual impact of a statute7 3 or its
administration7 4 as an aid to the determination of the proper constitutional classification.
This canon of legislative validity was used frequently by the courts
in Bill of Rights cases .75 The Charter, however, unlike the Bill of Rights,
gives the courts a constitutional jurisdiction to review legislation. This is
an important distinction which forces the courts to review legislation 7in6 a
substantive manner, open and unencumbered by any such presumptions.
The need for substantive review is particularly important where the
legislation in question predates the Charter. As the Ontario Court of
Appeal pointed out in Re FederalRepublic of Germany and Rauca: "We
do not feel [that the] presumption [of legislative validity] is of much
assistance in construing legislation in light of the Charter which
post-dates such legislation and the reasonableness of which legislation
71
Id. at 8o.
[1976)2 S.C.R. 373, at 425, 68 D.L.R. (3d) 452, at 497.
" Reference re Alberta Statutes, [1938] S.C.R. 100, [1938] 2 D.L.R. 81; aff'd
sub non. A.G. Alta. v. A.G. Can., [1939) A.C. 117, [193814 D.L.R. 433 (P.C. 1938).
7 Saumur v. Quebec, [1953] 2 S.C.R. 299, [1953)4 D.L.R. 641.
73 See, e.g., MacKay v. The Queen, [1980] 2 S.C.R. 370, 114 D.L.R. (3d) 393;
R. v. Burnshine, supra note 61; A.G. Can. v. Lavell, supra note 61; Curr v. The Queen,
[1972] S.C.R. 889, 26 D.L.R. (3d) 603; R. v. Shand, 13 O.R. (2d) 65, 35 C.R.N.S. 202
(C.A. 1976).
72
71
Supra note 4, at B-5.
1984]
EvidentiaryIssues in CharterChallenges
hitherto has never had to be examined or justified." 7 7 To encumber the
review of legislation with such canons of interpretation would undermine
the very reason for the Charter's entrenchment. The reasonableness of a
limitation contained in a law should not be and is not determined by the
78
mere existence of that law.
The British Columbia Court of Appeal in R. v. Smith7 9 appears to
have taken a contrary approach. MacDonald J.A. (Craig J.A. concurring)
followed that court's earlier decision in R. v. Konechny, in which it was
said that:
The courts have been given the power under s. 52 of the Constitution
Act, 1982, to review, and in appropriate cases to strike down, legislation. But
that does not mean that judges have been authorized to substitute their
opinion for that of the legislature, which under our democratic system is
empowered to enunciate public policy. The basis for such policy may be
reviewed if the policy is said to conflict with individual rights under the
Charter, but, in my opinion, the policy ought not to be struck down, in the
case of challenge under s. 9, unless it is without any rational basis. If there be
a rational reason for the policy then I do not think it is for a judge to say that
the policy is capricious, unreasonable, or unjustified. 80
I suggest that such an approach places undue emphasis on the existence
of the law itself. Few, if any, statutes are passed on the basis of policies
which have no rational basis. Nor, as Mr. Justice Lambert pointed out in
17 Supra note 5, at 244, 145 D.L.R. (3d) at 658. See also Reference Re S. 94(2) of
Motor Vehicle Act, R.S.B.C. 1979, c. 288, 42 B.C.L.R. 364, at 367, 4 C.C.C. (3d)
243, at 246 (C.A. 1983):
The Bill of Rights allowed the courts t6 test the content of federal legislation,
but because the Bill was merely a statute, its effectiveness was hampered by
the equally persuasive "presumption of validity" of federal legislation. The
Constitution Act, in our opinion, has added a new dimension to the role of the
courts; the courts have been given constitutional jurisdiction to look at not
only the vires of the legislation. . . but to go further and consider the content
of the legislation.
78 Re Global Communications Ltd. and A.G. Can., 44 O.R. (2d) 609, at 620, 7
C.R.R. 22, at 33 (C.A. 1984) (Thorson J.A.):
It must of course be acknowledged that it is no answer to the appellant's
challenge to this legislation on the ground of s. 2 that Parliament has or may
have weighed the competing interests involved in cases of this kind and made
a choice between them which operates in a way adverse to the interests of the
appellant in this particular case.
See also Re Ontario Film & Video Appreciation Soc'y and Ontario Bd. of Censors,
supra note 43, at 82, 7 C.R.R. at 131 (MacKinnon A.C.J.O.): "[T]here is no
presumption for or against the legislation but there are many factors to be considered, in
light of the legislation itself and its background . . . ", and Soenen v. Director of
Edmonton Remand Centre, supra note 25, at 38-39, 6 C.R.R. at 378.
11 Supra note 39.
80 10 C.C.C. (3d) 233, at 254, 6 D.L.R. (4th) 350, at 371 (B.C.C.A. 1983), leave
to appeal to S.C.C. denied, 25 M.V.R. 132n. It should be noted that this position was
taken by the Court in deciding the initial issue of whether the appellant's rights had in
fact been violated.
Ottawa Law Review
[Vol. 16:565
his dissent, are courts "intended to be judges of whether the parliamentary process is a rational one leading to rational legislation"."
The proper approach, I would suggest, is that adopted by Mr. Justice
Lambert. In deciding whether or not a particular piece of legislation
breaches a guaranteed right, the proper focus is on the effect of the
legislation .82 The true question is not whether the legislative policy is
rational, but whether,
as an effect of that policy, a person's rights have
83
been violated.
The policy which underlies the law, and the rationale behind that
policy, may properly be two of the factors considered in an examination
of the issues in section 1, but any limit placed on an individual's rights
must be based on respect for the rights of that individual. This means that
such a limit will have to be in furtherance of an objective sufficiently
compelling to outweigh the significant concern for the rights which the
Charter protects and, moreover, will have to represent only the minimum
necessary interference with those rights. 84 To use the words of Mr.
Justice Marshall: "[Wie must never forget that it is a constitution we are
expounding.' '85
3. "As Can Be DemonstrablyJustified"
In Quebec Ass' n of ProtestantSchool Boards it was held that this
phrase indicated that a court must study the validity of the object of the
limitation.8 6 The issue it must address is the purpose the limitation would
achieve.
The use of the word "demonstrably" appears to preclude a court
from merely supplying its own reasons for the limitation. 87 Hypothetical
81 R. v. Smith, supra note 39, at 323, 8 D.L.R. (4th) at 579.
Id. at 322-23, 8 D.L.R. (4th) at 578-79. This approach was also adopted by the
Supreme Court of Canada in Robertson and Rosetanni v. The Queen, [1963] S.C.R. 65 1,
at 657-58, 41 D.L.R. (2d) 485, at 494, by Mr. Justice Ritchie in construing the Bill of
Rights.
83 Id. at 324, 8 D.L.R. (4th) at 580.
84 Supra note 4, at B-6. This point was clearly, and I suggest properly, made by
O'Leary J. in Re Service Employees' Int'l Union, Local 204 and Broadway Manor
Nursing Home, 44 O.R. (2d) 392, at 448,4 D.L.R. (4th) 231, at 287 (H.C. 1983):
Since no evidence has been put before us to help establish that the choice was
sensible or reasonable we are really being asked to find that the denial of the
right . . . is a reasonable infringement that can be demonstrably justified in a
free and democratic society, simply because a member of the government has
said he believes the government made the most sensible choice. If the
government could justify the infringement of a guaranteed freedom in that
fashion s. I of the Charterof Rights would be meaningless.
85 M'Culloch v. Maryland, 4 Wheat. 316, at 407 (U.S.S.C. 1819).
86 Supra note 7, at 67.
87 The need for specific evidence, as opposed to assumptions and general views,
was highlighted in R. v. W., 39 O.R. (2d) 681, at 688-89, 1 C.C.C. (3d) 268, at 276-77
(Prov. Ct. 1982):
82
1984]
Evidentiary Issues in CharterChallenges
reasons would not suffice, unless they were capable of ready proof. As
has been said:
The word "demonstrably" is an adverb. As such, its purpose is to
describe, limit, or make more exact the meaning of the verb justified....
Reasoning and deduction tend to result in the subjective analysis of a topic,
while the process of explaining matters by specimens and examples is usually
a more objective method. Only when one must make use of specimens or
examples to demonstrably justify the reasonable 88limits set out in a particular
statute does objective reasoning begin to emerge.
The phrase was examined by Evans C.J. in Re Federal Republic of
Germany and Rauca, where he said that:
In the phrase "as can be demonstrably justified", the key word is the
word "justified" which forms the cornerstone of the phrase. It means to
show, or maintain the justice or reasonableness of an action; to adduce
adequate grounds for; or to defend as right or proper. The legal use of the
word is to show or maintain sufficient reason in court for doing that which
one is called upon to answer for. The notion of justification is qualified by the
word "demonstrably" which means in a way which admits of demonstration
which in turn means capable of being shown or made evident or capable of
being proved clearly and conclusively. The standard of persuasion to be
applied by the court is a high one if the limitation in issue is to be upheld as
valid. 8 9
In determining whether or not a particular limitation is in fact
demonstrably justified, four considerations seem appropriate:
(a) "the existence of an evil to be curbed or a benefit to be
provided, in the public interest";
(b) "the appropriateness of what is proposed as regulation to the
end sought";
(c) "the extent to which individual privileges and liberties are
encroached upon"; and
(d) "the relationship between the degree of imposition and the good
achieved".
90
In my view, resort to an assumption of horrific consequences by reason
of judicial frustration or a greatly increased number of fresh charges being
laid by peace officers cannot, in the absence of any evidence whatsoever,
amount to a substantial argument to deny the application of the Charter right
considered here.
Still less acceptable, it seems to me, is the appeal to an unsupported and
generalized view of societal acceptance of the relaxed and ultimately
discretionary aspects of a juvenile hearing as an expression of the manner in
which the community wishes its offending young people corrected.
This case was followed in Re Southam Inc. and The Queen, 38 O.R. (2d) 748, 70 C.C.C.
(2d) 257 (H.C. 1982), appealdismissed, supra note 21.
11 Supra note 41, at 81, [1983] 1 W.W.R. at 521.
'9 Supra note 21, at 716, 70 C.C.C. (2d) at 428.
11 Rand, Except by Due Process of Law, 2 OSGOODE HALL L.J. 171, at 187
(1961). The analysis undertaken by the Court in Re Service Employees' Int'l Union,
Local 204 and Broadway Manor Nursing Home, supra note 84, is a particularly good
example of the way in which these questions can and should be addressed.
Ottawa Law Review
[Vol. 16:565
It appears clear that the use of these phrases entangles the court in an
examination of "alternative means and [in an examination] of the
constitutionality of legislative ends".91 The word "guarantees" in
section 1 renders any such limitation inherently suspect.
It has also been suggested that the words "can be" imply that the
courts should adopt an objective test in reviewing the legislation. 92 Such
a test has the support of several cases 93 and seems to be in keeping with
the word "demonstrably". The proper approach for the courts, I suggest,
is that adopted by Mr. Justice Bouck inR. v. S.B., where he stated that:
[A]s I see my duty I should attempt to reach a decision on the basis of
objectivity if that is possible. Section 1 of the Charter speaks of a free and
democratic society in an exemplary sense. It suggests the rights and freedoms
contained in the Charter would naturally exist in this ideal community. Then,
it goes on to say they should not be struck
down unless objective examples
94
illustrate their application is not justified.
4. "In a Free and Democratic Society"
The inclusion of this phrase in section 1 requires that the
demonstrable justification meet the standards of a free and democratic
society if the limitation in question is to be upheld. The court may
therefore be required to look at other societies, 95 similar to ours, in order
to determine if similar limitations apply there.
Mr. Justice McDonald, in weighing the competing arguments, has
stated that:
It is arguable that the court must decide what is a reasonable limit
demonstrably justifiable in a free and democratic society solely by reference
to Canadian society and by the application of principles of political science.
This view that section 1 of the Charter does not contemplate comparisons
with other societies is supported by the fact that some of the rights guaranteed
by the Charter cannot be compared with rights enjoyed in many other free and
democratic societies (e.g., official languages and minority language educational rights). On the other hand, the phrase used is "a free and democratic
society". From this it can be argued forcefully that, at least in regard to
fundamental freedoms, democratic rights, some of the mobility rights, the
legal rights, and equality rights, what is to be examined is not limited to the
91 Supra note 55, at 83.
91 Supra note 22, at 4-36.
91 Quebec Ass'n of ProtestantSchool Bds., supra note 7; Re Federal Republic of
Germany and Rauca, supra note 5; Southam Inc., supra note 21; Ontario Film & Video
Appreciation Soc'y, supra note 43.
94 Supra note 41, at 88, [1983] 1 W.W.R. at 528-29.
15 I would suggest that these "societies"
can be both external to Canada or within
it. For example, in R. v. Konechny, supra note 80, at 246, 6 D.L.R. (4th) at 363, the
legislation of British Columbia is compared to that of other Canadian provinces.
EvidentiaryIssues in CharterChallenges
1984]
free and democratic society which we know and have known in Canada, and
that the court is at liberty, and may even
be required, to look at what is done
96
in other free and democratic societies.
In several Charter cases, however, courts have restricted the scope
of review. Mr. Justice Desch~nes in Quebec Ass'n of ProtestantSchool
Boards viewed the issue in the following manner:
While it would be possible to consider the notion of a "free and
democratic society" at length, the court will not do this.
First of all, one only needs to have travelled a little to appreciate the
liberties we enjoy in Canada and to realize in what low esteem they may be
held elsewhere. The court need go no further to demonstrate that Canadian
society is a free society, among the freest in the world.
Canadians are proud that Canadian society is also a democratic society.
The court will simply cite an example, 97of particular relevance to this case
which, again, reinforces the conclusion.
Referring to the Parti Qu~becois government's sovereignty association
campaign, Mr. Justice Deschanes continued:
Where would one find a more democratic society than in a federation
which permits a political party to come to power on the basis of a programme
the aim of which is the dismemberment of this federation?
The condition of a "free and democratic society" required by s. 1 of the
98
Charter is satisfied.
The broader approach was, however, adopted in the first instance
(and not criticized on appeal) in Re Federal Republic of Germany and
Rauca where Evans C.J. stated that:
The court must decide what is a reasonable limit demonstrably justified
in a free and democratic society by reference to Canadian society and by the
application of principles of political science. Criteria by which these values
are to be assessed are to be found within the Charter itself, which means that
the courts are entitled to look at those societies in which as a matter of
common law freedoms and democratic rights similar to those referred to in
the Charter are enjoyed. 99
The broader approach was also adopted in Re Southam Inc. and The
Queen (No. 1) which also contains a review of how the issue in question
has been dealt with in nine different jurisdictions. 100
The approach of Mr. Justice Desch&nes, it is suggested, is too
restrictive. If that standard were to be adopted, impugned legislation
96
D.
McDONALD,
LEGAL RIGHTS IN THE CANADIAN
A MANUAL OF ISSUES
91 Supra note 7, at 66-67.
FREEDOMS:
AND SOURCES
CHARTER OF RIGHTS AND
17-18 (1982).
98 Id.
91 Supra note 21, at 716, 70 C.C.C. (2d) at 428.
109 Supra note 21, at 131-34, 3 C.C.C. (3d) at 533-35. A similar approach was
also adopted in Re United States and Smith, 44 O.R. (2d) 705, at 722, 10 C.C.C. (3d)
540, at 557 (C.A. 1984), aff'g 42 O.R. (2d) 668, 6 C.C.C. (3d) 419 (H.C. 1983), and
Re United States and Green, 42 O.R. (2d) 325, at 333, 149 D.L.R. (3d) 151, at 158
(H.C. 1983).
Ottawa Law Review
[Vol. 16:565
would almost automatically meet the test. Section 1 indicates that
reasonableness and demonstrable justification alone do not suffice.
The standards by which this criterion may be evaluated are varied.
As suggested above, an exclusively Canadian standard 0does not put any
02
teeth into these words. It is possible, as McDonald J.1 1 and Conklin1
suggest, that a contextual approach, by which the Charter rights
themselves become the standard, could be adopted. Although simple,
such an approach is circular as it is precisely the extent of those rights
which is in issue. The perspective of political philosophy could provide a
basis for review, but such an approach, although it may be helpful in
certain cases, would generally be problematic in terms of proof and lack
of judicial experience.
The most obvious and, it is suggested, the most appropriate standard
of review is the international one. What limitations exist in countries
where similar rights are treated with equal respect? The analysis of
McDonald J. would therefore appear to be the correct one. Bouck J., in
R. v. S.B. ,'o analyzed this issue in the following (and, it is suggested,
correct) manner:
[A]s I see my duty I should attempt to reach a decision on the basis of
objectivity if that is possible. Section 1 of the Charter speaks of a free and
democratic society in an exemplary sense. It suggests the rights and freedoms
contained in the Charter would naturally exist in this ideal community. Then,
it goes on to say they should not be struck down unless objective examples
illustrate their application is not justified. These examples can come from
Canadian experience itself or by looking at other countries who have similar
legal backgrounds and are broadly accepted as free and democratic societies
in themselves. Because no nation has reached the ideal state of freedom and
democracy as suggested by the Charter, no country including Canada will
necessarily be the model to follow.
In this instance, I have shown that Canada, the United Kingdom, 28 of
the states of the United States and the Australian State of New Suth Wales do
not give a juvenile the right to elect trial by jury. On the other side of the coin
are New Zealand, at least 10 American states and three Australian states.
They allow a juvenile to elect trial by jury where the charge involves a serious
crime. Given this difference, it seems apparent the Crown has not met the
burden cast upon it. In striving for the ideal free and democratic society, there
is divided opinion as to whether juveniles should be allowed to elect trial by
jury. If representatives from all these countries were called upon to draft a
constitution for the perfect free and democratic society, there would be
conflict as to whether a juvenile should be given the right to elect trial by jury
if he were subject to imprisonment upon conviction for five years or more. It
could not be demonstrably justified that trial by jury of a juvenile in those
circumstances was unreasonable.
Suppose a decision was reached in this mythical assembly of nations
denying a juvenile the right to elect trial by jury, that would necessarily occur
as a result of subjective persuasion and not through proof by means of
specimens or examples. These examples are equivocal because the various
101Supra note 96.
102 Supra note 55, at 86-87.
103 Supra note 41.
1984]
EvidentiaryIssues in CharterChallenges
jurisdictions could illustrate their system was more satisfactory than others
who followed a different practice. Since either method of trial for juveniles
may be equally appropriate in the perfect society envisaged by the Charter,
the burden of proof resting upon the Crown in this instance has not been met.
Therefore, the petition must succeed."0 4
Finally, if real life is to be given to the Charter, it is suggested that
the "ideal" free and democratic society should be our objective. The fact
that other societies, admittedly free and democratic, do restrict certain
rights, should not per se be determinative. Our courts should, albeit
perhaps independently of other nations, always strive for the ideal.
E. The Standard of Proof in Section 1
Although the extent of the burden upon the party seeking to uphold a
limitation is not defined in the Charter, case law would appear to indicate
that the party upholding the limitation must establish on a balance of
probabilities that the section 1 criteria have been met. 105 In Quebec Ass'n
of Protestant School Boards the proposition that the standard of
persuasion is "a high one" was accepted by the Superior Court. 0 6 Later
in its judgment the Court found that Quebec had not succeeded in
"demonstrating convincingly"'' 10 that the clause in issue constituted a
reasonable limit. The Supreme Court of Canada did not take issue with
the proposition in the headnote that the standard to be met by Quebec was
that of the balance of probabilities.
The Ontario High Court of Justice in Re Federal Republic of
Germany and Rauca stated that:
In the present case, I am prepared to hold that the onus is upon the
Federal Republic of Germany to establish that the "limits", i.e. extradition
laws, are reasonable, are prescribed by law and are demonstrably justifiable
in a free and democratic society. I consider the extent of that burden to be the
usual civil onus based on the balance of probabilities. Because the liberty of
the subject is in issue, I am of the view that the evidence in support must be
clear and unequivocal. Any lesser standard would emasculate the individual's
rights now enshrined in the Constitution. 10
In the immediately preceding paragraph, the Court had stated that the
standard of proof in regard to the phrase "as can be demonstrably
justified" was a high one and that that element must be "capable of
being shown or made evident or capable of being proved clearly and
conclusively". 109 This would seem to imply a greater burden than that of
104 Id. at 88-89, [1983] 1 W.W.R. at 528-29.
105 Re Ontario Film & Video Appreciation Soc'y and Ontario Board of Censors,
supra note 43.
106 Supra note 7, at 66.
107 Id. at 90.
108 Supra note 21, at 716, 70 C.C.C. (2d) at 428.
109 Id. (emphasis added).
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[Vol. 16:565
the usual civil onus based on the balance of probabilities. On appeal,
however, it was held that the burden on the party seeking to support the
0
limit was that of the balance of probabilities. 11
It is suggested that the standard adopted in Quebec Ass'n of
ProtestantSchool Boards"' and in Re FederalRepublic of Germany and
Rauca," 2 namely that the court should be "satisfied" or "convinced"
that the limitation meets the section 1 test on the "balance of
probabilities", is the proper standard, 113 although as noted in Re Ontario
Film & Video Appreciation Soc'y, the standard of persuasion remains a
high one in 4order to prevent the dilution of our guaranteed fundamental
freedoms. 11
III. PROOF OF FACTS
The breadth of evidence of a social, political and economic nature
which parties will be forced to adduce is extensive and heretofore has not
played a large role in the litigation process. Two important issues relating
to the actual proof of such facts must therefore be addressed. The first
concerns the very type of facts which the court will need to consider; the
second relates to the manner in which these facts may be brought to the
attention of the court.
A. The Type of FactsAdduced
There is, as Strayer has pointed out, 115 an important distinction
between the issues involved in the construction of ordinary statutes and
those in constitutional (and hence Charter) litigation. The former demand
only a search for the intention of the parliament or legislature. The
question which the court must answer in those cases is, "What is meant
by the words used?" This means that in the interpretation of ordinary
statutes, the consequences of the legislation, its breadth or narrowness
and its reasonableness are generally irrelevant save as they relate to that
intention. To this end, the evidentiary rules applicable to the construction
of ordinary statutes are designed to assist in the search for the statute's
meaning. Extrinsic evidence is admissible, but only to the extent that it is
110 Supra note 5. Followed inRe United States and Smith, supra note 100.
I'l Supra note 7.
'12Supra note 5.
113 This approach has now been adopted by the Ontario Court of Appeal in Re
Southam Inc., supra note 21 and Rauca, supra note 5, and by Laycraft J.A. for the
majority of the Alberta Court of Appeal in R. v. Big M. Drug Mart, supra note 42, as
well as by Lambert J.A. of the British Columbia Court of Appeal in R. v. Smith, supra
note 79 (dissenting).
114 Supra note 43, at 589, 147 D.L.R. (3d) at 64.
115 B. STRAYER, JUDICIAL REVIEW OF LEGISLATION IN CANADA
147-81 (1968).
1984]
Evidentiary Issues in Charter Challenges
required to determine the "evil" which the statute was designed to
cure. 116
Where the litigation is constitutional, the role of the court is
markedly different. It may often be required to examine not only the
meaning of the impugned act, but also the social, economic and political
circumstances in which it was passed and the consequences which will
flow from its application. To resolve these issues, evidence of a much
broader nature is required.
A distinction must also be made between legislative and adjudicative facts. 1 17 The latter are facts about the immediate parties to the
litigation and answer the questions who, what, when, where and why. As
such, they must be strictly proven. Legislative facts, on the other hand,
are those that help a court or tribunal to determine the context of law and
policy. They are facts of a general nature about the political, social and
economic context of the legislation in issue. It is such legislative (or
''constitutional' ")118 facts which are particularly relevant to the challenge
of legislation by means of the Charter.
The very nature of legislative facts makes them difficult to prove
strictly. This is one of the reasons that has led the courts to adopt the
"rational basis" test when considering the constitutionality of legislation. That test has been adopted because courts feel that "the most [they]
can ask in respect of legislative facts is whether there is a rational basis
for the legislative judgment that the facts exist". 119
The "test involves restraint on the part of the court", restraint
"often compelled by the nature of the issue". 12 0 But, as Hogg points out:
The more important reason for restraint ... is related to the respective
roles of court and legislature. A legislature acts not merely on the basis of
findings of fact, but upon its judgment as to the public perceptions of a
situation and its judgment as to the appropriate policy to meet the situation.
These judgments are political, and they often do not coincide with the views
of social scientists or other experts. It is not for the court to disturb political
judgments, much less to substitute the opinions of experts. In a democracy it
would be a serious distortion of the political process if appointed officials (the
judges) could veto the policies of elected officials. But we are assuming a
situation in which the constitution does give a role to the court. We are
assuming that the powers of the legislature are limited by the constitution;
that it is the role of the court to adjudicate disputes as to those constitutional
limits; and that a particular dispute turns on an issue of legislative fact. The
116
Laskin, Evidentiary Considerations Under the Canadian Charter of Rights and
Freedoms, in
THE CHARTER: THE CIVIL CONTEXT
C-2 (Law Society of Upper Canada
ed. 1983).
117 See Davis, An Approach to Problems of Evidence in the Administrative
Process, 55 HARV. L.
REV.
364 (1942).
This is the term adopted by Mr. Justice Dickson (as he then was) in Northern
Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115, at 139, 98
D.L.R. (3d) 1, at 19 (1979).
119 Hogg, Proof of Facts in Constitutional Cases, 26 U. TORONTO L.J. 386, at 396
118
(1976).
120
Id.
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[Vol. 16:565
problem for the court is to perform its duty of constitutional adjudication,
while not trespassing unduly on the legislative duty of policy-making.
Finding the appropriate balance between these desiderata is of course an
underlying theme of much of our public law. In the present context - that of
finding legislative facts - the proper role of the court is to allow considerable
leeway to the legislature to make the findings of fact upon which its
constitutional power depends. That
is why US courts and commentators have
21
developed the rational-basis test.1
It is important to note that the relationship between the legislature
and the judiciary to which Hogg refers has changed, and that the
"assumptions" to which he refers are now all applicable. Although the
courts must grant Parliament and the legislatures considerable leeway in
which to make political judgments, that leeway has been dramatically
curtailed by section 1 of the Charter. The courts are now constitutionally
obligated to review legislation in a manner that ensures that it does not
trespass beyond its constitutionally defined limits.
To the extent that the rational basis test was adopted by Mr. Justice
Evans in Re Federal Republic of Germany and Rauca1 22 (it was not
referred to in the appeal decision), it is suggested that the adoption was
erroneous. Although the test requires an examination of legislative fact,
that examination is not consonant with the burden placed on the
proponent of the limitation by section 1. There most often will be some
rational basis for any impugned legislation. It does not, however, follow
that the infringement is a reasonable limit demonstrably justified in a free
and democratic society. The examination which a court must undertake
in deciding these issues is alien to the rational basis test. Although the
issues raised in Charter challenges and the legislative facts upon which
they must be decided may not be susceptible of strict proof, the standards
of the Constitution require more than a mere rational basis to uphold
legislated limitations of Charter rights.
B. The Admission of ExtrinsicEvidence in CharterCases
The admissibility of extrinsic evidence per se would not appear to be
in issue. The courts have, both in the past and in Charter cases, allowed
the introduction of social, economic and political evidence. The Quebec
Ass'n of ProtestantSchool Boards'23 case provides a clear example of
121
Id. at 396-97 (emphasis added).
122 Supra note 21, at 715, 70 C.C.C. (2d) at 427:
The question is not whether the judge agrees with the limitation but whether
he considers that there is a rational basis for it - a basis that would be
regarded as being within the bounds of reason by fair-minded people
accustomed to the norms of a free and democratic society.
See also R. v. Konechny, supra note 80, in which MacFarlane J.A. also adopts the
rational basis test.
23
Supra note 7.
1984]
Evidentiary Issues in Charter Challenges
how the courts accept and utilize such extrinsic information.' 2 4 Should its
admissibility be questioned, the judgment of the Supreme Court of
Canada in Reference Re Residential Tenancies Act, 1979125 provides a
clear argument in favour of allowing such evidence to be introduced.
Although it is clear that the courts will entertain such evidence,
always of course reserving the power to decide its relevance and weight,
the manner in which it is adduced in Charter litigation merits review.
The traditional methods of adducing evidence, by testimony and by
judicial notice, may be sufficient in many cases, but the breadth and
scope of information which may be required to properly assess the issues
arising from section 1 would appear to require alternative methods of
bringing evidence to the attention of the court. The recommendations
which will be made in this article are based on the analysis of those two
traditional fact-adducing techniques as well as on a review of two
alternatives: the Brandeis brief and out-of-court hearings.
1. In-Court Testimony
The advantage of viva voce expert evidence is twofold: it can be
tested for strengths and weaknesses, and it provides a clear opportunity
for a reply.
Much of the social, political and economic information which is
sought to be adduced may, however, be beyond the scope of a single
expert. For example, the Brandeis brief in Brown v. Board of Education
of Topeka'2 6 consisted of upwards of seventy different studies and
opinions. To have introduced each of these by viva voce evidence would
have created inordinate delays, not to mention an economic nightmare
for the parties.
2. JudicialNotice
A court, in civil cases, can take judicial notice of facts if they are:
(a) so notorious as not to be the subject of dispute among reasonable men, or
In R. v. Oakes, supra note 41, at 682, 2 C.C.C. (3d) at 363, for example, the
Court would have been prepared "to examine any information made available to
Parliament in enacting the . . . legislation". See also Re Service Employees' Int'l
Union, Local 204 and Broadway Manor Nursing Home, supra note 84, at 438, 4 D.L.R.
(4th) at 277.
125 [1981] 1 S.C.R. 714, at 723, 123 D.L.R. (3d) 554, at 562-63 (Dickson J.):
What is involved is an attempt to determine and give effect to the broad
objectives and purpose of the Constitution, viewed as a "living tree", in the
expressive words of Lord Sankey in Edwards and Others v. AttorneyGeneral for Canada and Others. . . . Material relevant to the issues before
the court, and not inherently unreliable or offending against public policy
should be admissible, subject to the proviso that such extrinsic materials are
not available for the purpose of aiding in statutory construction.
124
126
74 S. Ct. 686 (1954).
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[Vol. 16:565
(b) capable of immediate and accurate demonstration
by resorting to readily
127
accessible sources of indisputable accuracy.
As has been shown in practice, 128 judicial notice is of limited use as a
method of putting legislative facts before the court. Moreover, the very
limited class of facts to which judicial notice is relevant will not often
appear in Charter cases which challenge the validity of legislation. Most
often the information which is sought to be adduced is neither notorious
nor capable of immediate and accurate demonstration. More important,
these legislative facts will almost always be in dispute.
The very rationale of judicial notice - the assumption that what is
undisputed is necessarily or probably true - is a dangerous one to apply
when dealing with social facts. One of the most useful roles of social
science can be to demonstrate that the "facts of life" may really be
fiction.
The rules of evidence permitting a court to make findings of fact on
the basis of either viva voce testimony or judicial notice are directed to
the determination of adjudicative as opposed to legislative facts. 129 It has
been suggested that these strict rules should be relaxed where the
problem to be addressed is to be determined by legislative facts. 130 The
justification for doing so is twofold. First, it would increase the
efficiency of the adjudicative process. Second, this increased efficiency,
it is argued, would not detract from the court's obligation to strictly
evaluate the evidence, since "it is not necessary to prove legislative facts
as strictly as adjudicated facts".' 3 ' This latter assertion, however, is
founded on the premise that the rational basis test would be the standard
of evaluation.' 3 2 As has been suggested earlier, this test is not
appropriate in Charter cases. Nevertheless, a case can still be made for a
relaxation of the traditional rules.
One of the important components of the section 1 test of
reasonableness is proportionality. To evaluate this properly, it is
suggested that the strict standard of proof of adjudicative facts need not
be met. The evaluation of alternatives, and in fact the evaluation of all
issues in section 1, can be properly undertaken so long as the information
necessary to that evaluation is brought to the attention of the court. In
considering differing submissions it is not necessary for the court to find
that one is preferable to another. It is only necessary to show that a body
of information exists which would suggest that the legislation in question
is constitutionally unsound. The courts cannot and should not be asked to
127 J. SOPINKA
(1974).
&
S.
LEDERMAN, THE LAW OF EVIDENCE IN CIVIL CASES
357
128 In re Gittens Deportation Order, [1983] 1 F.C. 152, 137 D.L.R. (3d) 187
(Trial D. 1982). See also supra note 116, at C-23.
129 Supra note 119, at 395.
130 Id. at 397.
131 Id. at 396.
132 Id. at 396-97.
1984]
EvidentiaryIssues in Charter Challenges
indicate that any particular legislative approach to a problem should be
adopted. The Charter requires only that the court decide whether or not
the legislation meets section 1 criteria. That decision can be made by
recognizing the existence of information that would support or impugn
the legislation in question. That information must, of course, be strictly
scrutinized, but the court is not required to say "Scientist A is right and
B is wrong". The court need only indicate that there is some merit to the
assertions made by one group or another. Once this has been done and,
for example, it is found that there exists merit in the applicant's response
to the Crown's position, it becomes the role of the legislature to decide
how it wishes to modify its laws to avoid the infringement of
constitutional rights. The courts cannot tell the legislative arm of
government what it should do; they can only decide what it cannot do. In
order to do this, the traditional strict rules of proof can and should be
relaxed.
3. The Brandeis Brief
The Brandeis brief is a tool used by United States courts to bring
social science materials to the attention of the court. Such a brief puts
before the court legislative facts of the broadest nature, which are not in
the form of sworn testimony and which are not subject to crossexamination. The brief was first used in the case of Muller v. Oregon' 33
and represents a substantial relaxation of the limits on judicial notice of
findings of legislative fact. 134 The most famous application of the brief
occurred in Brown v. Board of Education of Topeka, 35 in which
extensive social science data was put before the United States Supreme
Court in order to demonstrate the unconstitutionality of the "separate but
equal" doctrine.
The Brandeis brief is used for two purposes: first, "to establish the
alleged facts by the court taking judicial notice of them"; and second,
"to demonstrate [pursuant to the American test] that a body of
information exists from which36 legislators could conclude that the
impugned statute is desirable". 1
There are two justifications for such use. 3 7 First, it is often the only
realistic "way to inform the court of [a wide] range of professional
opinion [or practice] on a particular point of social science. [While]
expert opinion-evidence could be adduced . .. on many topics no one
expert or group of experts could easily canvass the entire range of
professional opinion.' 138 To do so by ordinary means would be both
13328 S. Ct. 324 (1908).
34 Supra note 119, at 395.
135 Supra note 126.
136Supra note 116, at C-25-26.
137 Supra note 119, at 396.
138
Id.
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[Vol. 16:565
time-consuming and expensive. 139 The second justification relates to the
nature of judicial review in constitutional cases. The adoption of either
the rational basis test as in the United States, or the section 1 test, as
suggested earlier, does not require the same strictness of proof that
accompanies issues of adjudicative fact.
Detractors of the Brandeis brief argue that to the extent that the
material is presented for the purpose of proving the truth of its contents,
it should be sworn and subject to cross-examination. To the extent that
the brief is directed at the test of rationality (or to the issues in section 1),
they point to the difficulty faced by a court presented with two equally
impressive briefs. 14 0 These objections are clearly related to the overall
problem of ensuring that the court receives objective and reliable
information on matters of social science.
It is suggested that, in cases where legislation is alleged to be
inconsistent with the Charter, the requirements of judicial notice could be
modified in a way that would respect the concerns of all parties. It should
be kept in mind that all that a court is being asked to do, when deciding
the issues raised by section 1 on the basis of a brief, is to take notice of
the existence of a body of information from which a decision can be
made. Once the evidence of such information is recognized, the court is
free to deal with the various tests of section 1. To this end, the use of the
brief as a mechanism for adducing evidence is justified, so long as the
information therein is subject to the opportunity of reply and rebuttal.
There is nothing in section 1 which would render two equally
impressive briefs inherently undesirable. In fact, the presentation of two
such briefs would go far to support a conclusion that the limitation in
question should not be upheld. 4 '
4. Court-OrderedHearingson Issues of Legislative Fact
There is almost certainly a limit to the evidence which a court will
be prepared to accept in brief form. This is particularly so when the
matters in question are hotly
disputed or when a party desires to "prove"
42
certain facts rigorously. 1
Where the practical problems addressed by the use of briefs, such as
time constraints in particular, do not exist, such evidence can and should
be introduced by means of viva voce evidence or by affidavit. Where,
however, these problems are relevant, it may be appropriate to introduce
such evidence at a special hearing prior to the actual case. The judge
139
This rationale is particularly appropriate at the appellate level.
"' Supra note 116, at C-28-29.
141 A brief very similar to the Brandeis brief was used for argument at the Supreme
Court of Canada in R. v. Chabot, 55 C.C.C. (3d) 385, at 394, 117 D.L.R. (3d) 527, at
536-37 (S.C.C. 1980). The brief contained, inter alia, information regarding procedures
followed in the various provinces with regard to the drafting and filing of indictments.
142 Supra note 116, at C-28-29.
1984]
EvidentiaryIssues in CharterChallenges
hearing the case would then be able to refer to the evidence so adduced in
transcript form. Such an approach was in fact adopted by the Supreme
Court of Canada in the Eskimos Reference143 after an application for an
order for directions was made.
The best overall approach, it is suggested, is to permit evidence to
be submitted in all of these forms. The use of briefs and most certainly
the use of hearings could be made subject to a court order for directions,
thus imposing some measure of control on the volume of evidence and
some protection for the parties.
The court must have available to it comprehensive, objective and
reliable data if it is to render a strong decision. Taken together, these
methods of adducing evidence supply that data.
C. The Forum of FactPresentation
The final issue which remains to be addressed is the determination
of the proper forum for the presentation of facts relevant to the section 1
issue.
A trial court's experience in handling matters of adjudicative fact
argues strongly for the introduction at trial of legislative fact. Clearly
some such data will be required at first instance if the section
1 issue is to
44
be decided in favour of the party upholding the limitation. 1
The extent to which new evidence may be introduced on appeal and
the role of the appellate tribunal in reviewing findings of legislative fact
is also important. Even if evidence tending to establish the law is
considered by the court below, it should not necessarily follow that its
findings should be conclusive on appeal merely because they are made on
matters of fact. Such treatment, based on the traditional division between
fact and law in fixing the scope of appellate review would, in the case of
legislative facts, make the judge of first instance the final arbiter of the
law.
The findings made, although factual, are directly pertinent to the
judge's function of deciding the law and so should be recognized on
appeal as fully as any other ruling of law. It therefore follows, at least in
theory, that the appellate tribunal should not be limited to the evidence
before the court of first instance, but rather should be free to entertain
new evidence of legislative fact. In practice, however, appellate courts
are not very well suited to hearing new evidence, but this problem can be
easily resolved by the use of briefs and hearings, as suggested above.
[1939] S.C.R. 104, [1939] 2D.L.R. 417.
See, e.g., Cadeddu , supra note 21, where it is said:
As regards the instant application, the Crown made no submissions
directed to justifying any limits on the rights enumerated in ss. 7 and 9 of the
Charter. (It did make submissions as to what ss. 7 and 9 meant, but that is a
different matter). Accordingly, in my view, if the applicant succeeds in
establishing an apparent violation of his ss. 7 and 9 rights, he must succeed.
143
144
596
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IV.
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CONCLUSION
The challenge of legislation by means of the Charter raises many
procedural and evidentiary issues. In order for the Charter to be given
life, these issues must be approached in a manner consistent with its
spirit. The burdens and onus imposed by section 1 must be interpreted in
a manner which gives guaranteed rights the greatest protection possible.
The evidence which is introduced to answer the questions raised by
section 1 must be permitted to be brought before the court in a manner
which reflects the concerns of both the court and the parties involved.
Only in this way will it be possible to ensure that the constitutional rights
enshrined in the Charter will always prevail over legislative abuse of
governmental power and that the proper balance between the interests of
the individual and the interests of society will be maintained.