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Charter - Evidence

. Friedman v. Canada (National Revenue)

In Friedman v. Canada (National Revenue) (Fed CA, 2021) the Federal Court of Appeal considered the role of adjudicative facts in Charter cases:
[35] The jurisprudence is clear (and abundant) that courts should not decide constitutional cases in a factual vacuum. This principle finds recent expression in Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3 at para. 22 where the following appears:
Where a person challenging a law’s constitutionality fails to provide an adequate factual basis to decide the challenge, the challenge fails. As Cory J. put it on behalf of the Court in MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, at p. 366, “the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants’ position”.

(emphasis in the original)
[36] That said, in an early Charter case, the Supreme Court left open the possibility that a finding of invalidity could be made on the face of the statute or provision:
However, the principle I am discussing is not absolute. There may be rare cases where the question of constitutionality will present itself as a simple question of law alone which can be finally settled by a motion judge. A theoretical example which comes to mind is one where Parliament or a legislature would purport to pass a law imposing the beliefs of a state religion. Such a law would violate s. 2(a) of the Canadian Charter of Rights and Freedoms, could not possibly be saved under s. 1 of the Charter and might perhaps be struck down right away; see Attorney General of Quebec v. Quebec Association of Protestant School Boards, 1984 CanLII 32 (SCC), [1984] 2 S.C.R. 66, at p. 88. It is trite to say that these cases are exceptional.

Manitoba (A.G.) v. Metropolitan Stores Ltd., 1987 CanLII 79 (S.C.C.), [1987] 1 S.C.R. 110 at para. 50
[37] One of the reasons that such cases are exceptional is that an apparent conflict between legislation and the Charter may be capable of resolution using the tools available in Charter litigation. This issue was considered in Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 [Reference re Same-Sex Marriage], a reference as to the constitutionality of the Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes (Same sex reference). One of the arguments raised against the proposed legislation was that religious officials would be compelled to perform same-sex marriages contrary to their religious beliefs which would conflict with same-sex couples’ right to be free from discrimination. The Supreme Court dealt with this as follows:
This leaves the issue of whether the Proposed Act will create an impermissible collision of rights. The potential for a collision of rights does not necessarily imply unconstitutionality. The collision between rights must be approached on the contextual facts of actual conflicts. The first question is whether the rights alleged to conflict can be reconciled: Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 29. Where the rights cannot be reconciled, a true conflict of rights is made out. In such cases, the Court will find a limit on religious freedom and go on to balance the interests at stake under s. 1 of the Charter: Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 S.C.R. 825, at paras. 73-74. In both steps, the Court must proceed on the basis that the Charter does not create a hierarchy of rights (Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 877) and that the right to religious freedom enshrined in s. 2(a) of the Charter is expansive.

Reference re Same-Sex Marriage at para. 50
[38] The result is that legislation which, on its face, contains Charter violations may yet be found to be constitutional on the basis of contextual facts and the balancing of interests pursuant to section 1 of the Charter. All this to say that the possibility of fact-free determinations of constitutional invalidity is extremely limited.


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