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Monday, January 1, 1996

WHAT'S THE EVIDENCE? The Use the Supreme Court of Canada Makes of Evidence in Charter Cases


January 1, 1996,  Rethinking the Constitution  Oxford University Press

The coming into force of the Charter of Rights and Freedoms in 1982 launched a mass of speculation on what it might mean. It was suggested immediately that the courts would have to rely on evidence in deciding whether legislation should be struck down under the Charter.

While not unprecedented in Canada1, the use of evidence in constitutional cases is an American practice and speculation drew on American precedents. The Brandeis brief, long revered in law schools, was always referred to. Louis Brandeis, several years before his appointment to the United States Supreme Court, had filed government studies and other material to support the constitutionality of employment standards legislation specifically protecting women2. The practice became common in American constitutional practice, and with its apparent promise of litigating political issues was attractive to law professors and their more impressionable students.

Also rehearsed was a distinction between adjudicative facts, the ordinary facts in litigation of who did what to whom and where and with what effects, proved by conventional evidence and tested by cross-examination, and legislative facts, general social facts on which it might be thought legislatures should rely in making laws, to be established to the Court’s satisfaction in Charter cases by different kinds of evidence subject, if only for practical reasons, to less rigorous testing3. One of the grounds of this distinction was the suggestion that with legislative facts all that was necessary was to establish a reasonable basis for legislative action. For that purpose more laxed standards of admissibility and less rigorous testing of the evidence might be indicated. If the purpose of leading evidence was simply to show what the legislature was trying to do, and thus to explain away any apparent infringement of rights, the scrutiny of the evidence and the role assumed by the Court would be limited.

The early years of speculation have been superseded by more than ten years experience with Charter litigation. Evidence has been used to explain what the Charter’s rights and freedoms must mean and whether they have been infringed and what remedies there may be4. But the consideration of whether impugned legislation can be, in the words of section 1 of the Charter:
such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
has been the commonest and key use of evidence.

An examination of the more significant cases in the Supreme Court of Canada in which evidence was, or might have been, introduced to help the Court pass judgment on the work of the legislatures does not reveal settled principles or practice. But three uses of evidence for the Court are apparent. The Court has effectively used a call for and the availability of evidence to enhance and protect its authority and power. Firstly, calling on evidence has helped to protect the Court from blatantly imposing its political opinions on the legislatures. Secondly, by insisting that it decides, on evidence, whether legislation can be justified, rather than simply satisfying itself that there was a reasonable basis for the legislation and deferring to the institutionally competent and democratically accountable legislatures, the Court reserves for itself unrestricted power. Finally, by purporting to base its decisions on findings on the evidence in particular cases it has reserved to itself the freedom to revisit every political issue.

***

The first significant reference in a Supreme Court of Canada judgment to evidence in Charter cases came in 1984 in Skapinker5. Skapinker, a South African citizen at the time he was to be called to the Ontario bar, objected to the requirement in paragraph 28(c) of the Law Society Act that persons called to the bar be Canadian citizens or British subjects. Estey J., having decided that Skapinker’s rights had not been violated, nonetheless commented on the case that the Law Society would have had to make to justify the citizenship requirement if the Court had decided that it did violate Skapinker’s rights. He characterised the material that the Law Society would have relied on as minimal. It consisted of reports of government studies of professional organisations and a survey of the requirements in other jurisdictions. He insisted that more would be expected in the future:
As experience accumulates, the law profession and the courts will develop standards and practices which will enable the parties to demonstrate their position under s. 1 and the courts to decide issues arising under that provision. May it only be said here, in the cause of being helpful to those who come forward in similar proceedings, that the record on the s. 1 issue was indeed minimal, and without more, would have made it difficult for a court to determine the issue as to whether a reasonable limit on a prescribed right had been demonstrably justified. (D.L.R. 182; S.C.R. 384)
In light of what has been looked at in later cases it must be understood that it was the bulk rather than the character of the evidence that seemed deficient to Estey. Moreover, the deficiency would not have prevented the Court from deciding whether a reasonable limit had been justified, as Estey seems to say, but simply from deciding in the limit’s favour, something he appeared inclined to do, but wanted evidentiary cover for.

Almost a year later Wilson J. in Singh6 expressed disappointment at “the limited scope of the factual material brought forward by the respondent in support of the proposition that the Immigration Act’s provisions constitute a “reasonable limit” on the appellant’s rights.” and quoted Estey from Skapinker. (D.L.R. 467/8; S.C.R. 217) The appellant refugee claimants argued successfully that the act in denying them an appeal to the Immigration Appeal Board unless it was of the opinion on the basis of written material that the Minister’s determination not to grant refugee status could likely be overturned denied them security of the person without regard for the principles of fundamental justice contrary to section 7 of the Charter. It was contended for the Minister of Immigration that the U. N. High Commissioner for Refugees had approved Canada’s procedures, that Commonwealth and Western European countries offered no right of appeal and that the Immigration Appeal Board, already under strain, would be unreasonably burdened by a requirement of an oral hearing in every case. What exact factual material would have been satisfactory is unclear as Wilson doubted that “utilitarian” considerations could be allowed to prevail over the Charter rights that she held had been infringed. (D.L.R. 469; S.C.R. 718) She placed more reliance on a task force report and an Appeal Board chairman’s speech, which contained merely political comment more to her taste. The utilitarian results of the Court’s decision were a huge backlog of refugee claims, tens of thousands of claimants in welfare limbo, a raft of new patronage appointments, public lack of confidence in the refugee programme and a legal aid crisis.

***

The exact evidentiary character of the material needed to justify a limit under section 1 of the Charter remained vague. But the celebrated R. v. Oakes7, in which Chief Justice Dickson attempted to codify the requirements for a section 1 justification, seemed to call for something like evidence in the received sense. Before outlining the requirements of “pressing and substantial concerns”, “rational connection”, “minimal impairment” and “proportionality” on which a whole scholastic industry has since been built, the Chief Justice held that the onus of proving justification is on the party seeking to uphold the limitation and that the civil standard of proof by a “preponderance of probability” applies.

By speaking of onus and a standard of proof, concepts of the law of evidence, the Chief Justice called on evidence as the principal basis for the justification of limits to Charter rights. It was not surprising that he should do so. But it was not necessary. Justification could have been left a matter of argument, with legislative history and some evidence of political or economic context as an adjunct of legal argument. Reading the Court’s reasons this is often all that seems involved. But the Chief Justice said “cogent and persuasive” evidence would generally be necessary and, whether or not it has been cogent and persuasive, his wish to have evidence has generally been granted.

Dickson’s consideration of evidence in Oakes does not much help to show how evidence should be used. Oakes challenged section 8 of the Narcotic Control Act, which put the onus of showing that possession, once proved by the Crown, was not for the purpose of trafficking, on the accused. The Court held that this reverse onus was contrary to the presumption of innocence required by paragraph 11(d) of the Charter. The Crown argued that any infringement of the right to be presumed innocent was justifiable under section 1.

Dickson was satisfied that Parliament’s concern to fight drug trafficking was substantial and pressing on the basis of government reports from the fifties and seventies, international conventions and legislation in other countries. Reasonable people might judge that a recent leading article from The Economist was as good evidence, and more cogent and persuasive, to the contrary.

Having satisfied himself of Parliament’s pressing and substantial concern on doubtful evidence, the Chief Justice then struck down the reverse onus provision without further examination of evidence by holding that there was no rational connection between possession of a narcotic and possession for the purpose of trafficking. The implicit characterisation of the legislation as irrational seems unfair to its framers. The provision did not simply deem possession possession for the purpose of trafficking, which might arguably be irrational. It placed an onus on anyone proved to have been in possession of a narcotic to prove, on the balance of probabilities, that it was not for the purpose of trafficking. The question was not therefore whether “the possession of a small quantity of narcotics does not support the inference of trafficking.” but whether the reverse onus would help the fight against drug trafficking. On this specific point, which the Court does not even seem to have grasped, no evidence was considered and its absence or insufficiency went unremarked.

After the elaborate analysis and solemn talk of cogent and persuasive evidence the determinative finding comes too easily. The case could have been decided on brief reasons without the encouragements to Charter scholasticism and an inflation of constitutional evidence. The consideration of evidence in Oakes demonstrates that the use of evidence will be strongly determined by the context of the specific case and the positions taken by the parties. The Court purports to endorse parliament’s concern with drug trafficking on the basis of doubtful evidence when it was never seriously in issue. It then rejects the instrument by which parliament attempted to address its concern by reasoning without evidence, no attempt being made to consider how the instrument might work.

References to legislation in other countries and international conventions have been common since the earliest attempts to justify legislation under section 1. It is argued that if legislation like that impugned under the Charter is tolerated in other nice countries it must be a reasonable limit demonstrably justified in a free and democratic society. The references in Oakes were only intended to show that the object of the impugned legislation was “substantial and pressing” and not to justify the specific impugned legislation. The logic of attempts to justify impugned Canadian legislation by showing similar legislation in other putatively free and democratic countries is doubtful. But they present little problem of getting evidence as the foreign legislation can generally simply be filed without controversy. The analysis in Oakes indicates that, as always seemed likely, justification by foreign legislation alone will not work. But as Oakes itself demonstrates, foreign legislation can still puzzlingly be accepted as evidence to satisfy one or another of the Oakes criteria for justification.8

As Oakes illustrates, the use made of evidence by the Court in Charter cases will be determined by the judges’ preconceptions. In ordinary trials the judge has no preconceptions about the facts and must rely entirely on the evidence to decide where the cars were at the time of the accident, who shot whom, where the money went or why the machine would not work. In Charter cases judges appear to invoke evidence or pass it by depending on how it suits their arguments. It is often difficult to determine from the Court’s logorrhoeic reasons exactly what evidence they considered and what they made of it. Ordinary cases often turn entirely on the facts and judges’ reasons review the evidence in detail and make findings expressly based on it, particularly of credibility. The credibility of the reports and studies relied on in Charter cases is never made an issue.

***

Oakes implied a readiness to weigh up the merits of legislation in light of political findings based on evidence. A few months before, in Operation Dismantle9, Dickson J. (who became Chief Justice between the argument of the case in February 1984 and judgment in May 1985) firmly refused to be drawn into political judgments, dismissing them as matters of speculation. The appellants alleged in their statement of claim that cruise missile testing would violate the section 7 right to security of the person and life because,inter alia:
verification of the extent of this nuclear weapons system [would be] impossible;
with the impossibility of verification, the future of nuclear weapons control... [would be] completely undetermined as any such agreements become practically unenforceable;
the testing...would result in making Canada more likely to be the target of nuclear attack;
a “Launch on Warning” system would be necessary in order to respond to the cruise missile...increasing the likelihood of either a preemptive strike or an accidental firing;
the cruise missile [would] have the effect of a needless and dangerous escalation of the arms race, thus endangering the lives and security of all people. (D.L.R. 485/6; S.C.R. 448)

The usual approach in deciding whether to strike out a statement of claim, the issue in Operation Dismantle, is to assume that the allegations in the statement of claim are true and decide whether they could support any claim at law. Dickson decided the case on the novel basis that the allegations made by the appellants simply could not be proven:
Since the foreign policy decisions of independent and sovereign nations are not capable of prediction, on the basis of evidence, to any degree of probability, the nature of such reactions can only be a matter of speculation; the causal link between the decision of Canada to permit the testing of the cruise and the results that the appellants allege could not be proven. (D.L.R. 488; S.C.R. 452)
In later cases the Court has been ready to hear and make findings on evidence no less intractable than what might have been led by Operation Dismantle and on issues no less speculative than those raised by it. While the dismissal of its claim came as relief to sensible people, the reasoning was unsatisfactory. Had the Court chosen to impose some limits to the imperial and despotic powers plausible and prevailing interpretations of the Charter give it, on the grounds that the Court simply cannot properly deal with certain kinds of issues, it would have been a healthy development.10 But in deciding the case on a kind of finding of fact, for which no evidence was considered necessary, or even possible, the Court showed that it was not prepared to set any limits to its powers beyond its energy and interests.

***

By 1986 what evidence could be lead to justify a limit under section 1 of the Charter remained a matter of speculation and lobbying. While seized with Operation Dismantle, Chief Justice Dickson, addressing a Bar Association meeting in Edmonton in February 1985, had invited counsel to:
become more imaginative in their presentation of factual material in constitutional litigation....While I cannot pre-judge the evidence the Court will deem relevant and admissible in a particular case, I urge all counsel in constitutional litigation to offer the Court, as evidence, any material they deem useful to the questions at hand. [emphasis added]11

With this encouragement it might have been expected that some Charter litigation would have degenerated into a battle of the social scientists, like the battles of psychiatrists in criminal cases or social workers in custody cases. But generally a mass of dull paper has been dumped on the Court without controversy and become matter for argument between counsel and been picked over by the judges.

In Thomsen12, Hufsky13 and Ladouceur14 the respective accused drivers argued successfully that their right not to be arbitrarily detained under section 9 of the Charter had been infringed. But the Court accepted in justification several volumes filed by the Crown as evidence of the seriousness of impaired driving and unlicensed and uninsured driving and the need for breathalyser tests and random checks to deal with them. Though these considerations may justify the attacked legislation and go some way beyond judicial notice, the show of bringing an open mind to be persuaded by evidence strains credibility. The Court was making political judgments. On such issues lack of existing opinion is improbable. Judging by the questions asked by Sopinka J. in Ladouceur, the evidence, for the assembly of which the case had been adjourned for a year in the Ontario Court of Appeal, did not itself compel the Court’s conclusion:
Although the statistics are voluminous, there is no evidence as to whether during the relevant period police officers were actually exercising the “roving random stop” power. For example, was the percentage of accidents involving unlicensed drivers realized notwithstanding the fact that police officers were employing this method of enforcement? If it was, presumably it is only since s. 189a(1) was enacted in 1981. What were the percentages before this method was used? How many motorists who were perfectly law-abiding were stopped for every one that was committing some violation? On the other hand, if the police have not been using this method and this case is an isolated incident, what is the evidence that police officers consider that this power is essential to effective enforcement? (C.C.C. 27/8; S.C.R. 1265)

Some other questions might be asked. Did the legislature do wrong in giving police the power being challenged without exhaustive evidence to satisfy Sopinka? Sopinka, in a minority of four, held that the “roving random stops” in question in Ladouceur could not be justified. Was Sopinka asking the questions because of a principled requirement for evidence or because he did not like police having the power and just wanted to strike down this particular bit of legislation? In later cases Sopinka was prepared to be much less demanding of the evidence.

In the cases dealing with Quebec’s language legislation at the end of 198815 the Court accepted material simply attached to the Quebec attorney general’s factum in the Court of Appeal. It ranged
in nature from the general theory of language policy and planning to statistical analysis of the position of the French language in Quebec and Canada. (Ford D.L.R. 626; S.C.R. 777)
Excusing the irregular way in which it had been submitted the Court commented that:
...the parties did not appear to be taken by surprise..., but showed themselves fully prepared to argue the merits of the material.... The material is of the kind that has been invited and considered by the Court in other cases involving the application of s. 1 of the Charter, without having been subjected to the evidentiary testing of the adversary process. It is material that is treated similarly to treatises and articles in other judicial contexts. (Ford D.L.R. 626; S.C.R. 776/7)

The printer Singer, in Devine, attacked some of the material as biased or misleading and submitted other statistical analysis and the Court said “due regard” should be given to this. But what is remarkable in the cases is the readiness of the Court to accept the whole of Quebec’s linguistic national policy “without [its] having been subjected to the evidentiary testing of the adversary process”. Because the Court struck down the outright ban on English signs and Quebec reacted strongly and invoked the notwithstanding clause the public saw the Court as condemning Quebec linguistic nationalism. In fact it endorsed it, only balking at the outright ban on languages other than French on signs, holding that it failed to meet the proportionality test in Oakes.

The French language decisions illustrate the artificiality and evasiveness of the Charter evidence practice. In accepting Quebec’s language policy the Court had not only to accept the statistics it submitted “without [their] having been subjected to the evidentiary testing of the adversary process”. It had also to accept Quebec’s “general theory of language policy and planning” and the value placed on Quebec’s language and culture as against other affected values. By discussing the issues in terms of “materials” or “evidence” the Court obscures the fact that it must and does make political judgments beyond anything determined by the general language of the Charter itself.

***

In the Irwin Toy16 case, a toy manufacturer argued that Quebec’s ban on advertising directed to children was a denial of freedom of expression. Having already forced itself to accept that argument by its inclusion of “commercial expression” within freedom of expression in Ford and Devine, the Court was ready to consider social science evidence justifying the ban. Irwin Toy argued that studies done after the legislation was enacted could not be relied on to justify it. It seemed to contend that legislation should be reviewed like an administrative decision, only what was before the legislature when it enacted the legislation, an extended legislative history, being considered. The Court would only go so far as to look for some justifiable intention at the time of the enactment. While it wondered:
why the Attorney-General did not tender in evidence certain reports and studies that were used by the government both in enacting the legislation and subsequently in reviewing its operation. (D.L.R. 619; S.C.R. 985)
it was content “to assess the constitutionality of the legislation on the basis of the material that was filed.” including “studies post-dating the enactment of the [legislation] and upon which the government did not rely in adopting [it].”
In showing that the legislation pursues a pressing and substantial objective, it is not open to the government to assert post facto a purpose which did not animate the legislation in the first place (see R. v. Big M Drug Mart [(D.L.R. 352/3; S.C.R. 335)]:17  However, in proving that the original objective remains pressing and substantial, the government surely can and should draw upon the best evidence currently available. The same is true as regards proof that the measure is proportional to its objective: see R. v. Edwards Books & Art Ltd. (1986), 35 D.L.R. (4th) 1 at p. 41...[1986] 2 S.C.R. 713 [ at p. 769]. It is equally possible that a purpose which was not demonstrably pressing and substantial at the time of the legislative enactment becomes demonstrably pressing and substantial with the passing of time and the changing of circumstances. (D.L.R. 618; S.C.R. 984)

The result seems to be that the legislation must have had an objective when it was passed that can be justified when the matter comes before the Court, but that it does not matter whether that objective could be justified when the legislation was passed. Legislation may come to be justified some time after it is passed as its objective becomes pressing and substantial or the proportion between the objective and the measure shifts. It should also follow that legislation once justifiable may in time cease to be18.

The implication of these principles is that the Court may be asked to revisit any issue on the grounds that circumstances have changed since it last upheld or struck down any particular legislation. Indeed, it should not be necessary to argue that circumstances have changed. As the Court claims to decide the issues on evidence, it should be enough to say that there is evidence the that Court has not previously considered. While Irwin Toy has had its chance to rebut the Crown’s evidence any other toy maker, or children’s advocate, who wants to challenge the Quebec legislation should be free to do so.

On this analysis the claim to decide section 1 issues on evidence must largely preclude any final settlement of constitutional jurisprudence as the Court pushes its way through the first wave of Charter cases. Cases decided on evidence are generally only binding between the immediate parties.

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By 1989 the Court’s appetite for evidence in Charter cases seemed to have become an addiction. In MacKay v. Manitoba19 MacKay challenged provisions of the Manitoba Election Finances Act for the subsidisation of candidates elections expenses. He contended that the use of tax monies, to which he was obliged to contribute, to support candidates with whose opinions he disagreed and the 10% of votes requirement for the subsidy as a barrier to small or new parties infringed his freedom of expression. The case was apparently pursued with more enthusiasm than thought and no facts were put before the Court beyond the legislation itself. The government of Manitoba was content that it should proceed on that basis and the judge at first instance and the Manitoba Court of Appeal held that there was no infringement of freedom of speech.

Before the Supreme Court of Canada the attorneys general of Canada and Ontario intervened and took the position that there was no factual basis for dealing with the appeal. Cory J. agreed and delivered a homily on the need for evidence in Charter cases:
In light of the importance and impact that these decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases. The relevant facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of the impugned legislation and the result of the possible decisions pertaining to it may be of great assistance to the courts.
Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. (D.L.R. 388; S.C.R. 361)
For a Court that dismissed Operation Dismantle on the basis that its allegations about international politics could simply never be proved the readiness to be persuaded of the future impact of impugned legislation and the result of possible decisions is remarkable. Also remarkable is the contrast between the demand for the careful preparation and presentation of a mass of factual material and wide eyed acceptance of any social science and expert opinion without “the evidentiary testing of the adversarial process”.

MacKay’s counsel argued that Neo-Nazis might get 10% of the vote and be entitled to public funding. Cory would have none of this without evidence. But it is not clear what help evidence would be. Did Cory mean that only when a Neo-Nazi actually had 10% of the vote and was about to receive public funds would freedom of expression be in danger? Or would some specific probability of a Neo-Nazi getting 10% of the vote testified to by some dubious political scientist have decided the case?

MacKay’s case was simple enough. Even Cory dealt with large part of it as presented:
    The appellants also argued an issue that does not require a factual foundation. It was said
that the statutory funding of candidates could, whenever a losing candidate or candidates received 10% of the vote, force a taxpayer to support a candidate whose views are fundamentally opposed to that of the taxpayer. This enforced support of a contrary view was said to infringe the taxpayer’s right to freedom of expression. I cannot accept that contention. The Act does not prohibit a taxpayer or anyone else from holding or expressing any position or their belief in any position. Rather, the Act seems to foster and encourage the dissemination and expression of a wide range of views and positions. In this way it enhances public knowledge of diverse views and facilitates public discussion of those views. (D.L.R. 392; S.C.R. 366/7)
But by 1989 the Court had become so used to buffering its decisions in masses of evidence that it would not fully deal with MacKay .

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In 1990 and 1991 the Court became more and more confident and ambitious in dealing with political issues, upholding mandatory retirement provisions in universities20 and hospitals21, but striking down a provisions of the Unemployment Insurance Act that restricted benefits for people over 6522, upholding hate propaganda bans in the Canadian Human Rights Act23, but striking down limits on political activity by public servants24. In all of these cases quantities of evidence were before the Court, but it is hard to tell from its reasons how much an of it was relied on.

Merv Lavigne’s unsuccessful attempt to have the requirement that he pay dues to the Ontario Public Service Employees Union in order to keep his job teaching at a community college25 demonstrated how far politics cloaked in evidence could go. Lavigne objected that his dues were being used to support the New Democratic Party, disarmament campaigns and other causes. None of the judges thought Lavigne’s right to freedom of expression had been infringed by his being forced to contribute funds to support causes he disagreed with. Wilson J. relied on MacKay . Only three of the judges thought Lavigne’s right to freedom of association had been infringed. But all of the judges held that whatever rights or freedoms might have been infringed, it could be justified under section 1. LaForest J., who had held that Lavigne’s freedom of association was infringed, nevertheless insisted that he could not even be allowed an opt out for dues not spent strictly on collective bargaining, having evidently been persuaded by the evidence of the following:
...there is evidence to support the view that the cause of unionism has been advanced by the NDP. The respondents referred to the role that the party played in the establishment of medicare, pensions, and unemployment insurance, and of what unions would have had to give up in the way of demands in other areas in order to get medical coverage from employers, private unemployment insurance coverage, and so on. In the light of the foregoing, it is inconceivable that support of the NDP could be considered irrelevant to the union’s obligation to represent those who pay dues to it. But the important point is that if individuals can “opt out” of supporting the NDP, the unions will have much fewer dollars to support it. (D.L.R. 638; S.C.R. 337)

It was never in the cards that the Supreme Court of Canada would take on the unions over the use of compulsory dues for political purposes, something that people with more political nous than the Citizens Coalition, which backed Lavigne’s case, would have known. This was all the more so after the Court had repeatedly held in 1987 that freedom of association did not include a right to strike despite alarming dissents by Dickson and Wilson. But the readiness to find political facts on which to base its decision shows a Court acknowledging no bounds to its political competence.

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In more recent cases there have been comments that might be read as indicating that the Court had developed a more modest conception of its competence and might be ready to defer slightly to the legislatures. They might even be read as saying that the Court would be satisfied with a “reasonable basis” for impugned legislation. In Dickason26, yet another lengthy and inconclusive treatment of the issue of mandatory retirement, Sopinka J. (dissenting) says:
The first question in this appeal is the meaning to be ascribed to the phrase “reasonable and justifiable”. I agree with the board of inquiry, the courts below and my colleagues that the jurisprudence developed with respect to s. 1 of the Charter is a useful guide in applying s 11.1 of the I.R.P.A. There is also substantial agreement that in determining whether the proportionality factor has been met, the Court should not defer to the decision of an employer in the same way as in the case of a governmental actor. The rationale for this approach in the latter case is that in dealing with governmental actors, it is often difficult, if not impossible, to prove in the ordinary way whether a particular measure will in fact achieve its objective. Accordingly, if Parliament...had a reasonable basis for concluding that the measure would achieve its objective, that is ordinarily a basis for concluding that there is a rational connection between the measure and the governmental objective. Accordingly, although the government could not prove that advertising toys on television had a manipulative effect on children, nor that hate propaganda actually promoted hatred against an identifiable group, nor that pornography caused harm to women, the fact that there was sufficient evidence to provide a reasonable basis for the legislature to adopt the impugned legislation in aid of its objective was sufficient to save it. (D.L.R. 482/3; S.C.R. 1195/6)
There is no reason to see this as indicating that the Court will not, as it has readily for ten years, put itself in the place of the legislature. The point in Irwin where the Court would not second guess the legislature was the age limit of 13 for ban on advertising. It was following Edwards27, a Sunday shopping case, in which Chief Justice Dickson accepted the exception for stores with seven employees or less saying:
...I do not believe that there is any magic in the number seven as distinct from, say, 5, 10, or 15 employees as a cut-off point for eligibility for the exemption. In balancing the interests of retail employees to a holiday in common with their family and friends against the s. 2(a) interests of those affected the legislature engaged in the process envisaged by s. 1 of the Charter. A “reasonable limit” is one which, having regard to the principles enunciated in Oakes, was reasonable for the legislature to impose. The courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw the line. (D.L.R. 51; S.C.R. 781/2)

Clearly in these cases the Court had no different idea of its own on where to draw the lines and might as likely as not have done so at 13 years and seven employees. It was not so much deferring to the legislatures as condescending to them, leaving them the details to work out. Contrary to the implication of Sopinka’s comments in Dickason, the Court seemed satisfied in Irwin that advertising toys on television did have a manipulative effect in children. It was only unsure at what age this ceased to be a pressing and substantial concern.

In Keegstra28 the Alberta school teacher was charged with wilfully promoting hatred against an identifiable group under subsection 319(2) of the Criminal Code and argued that the provision infringed his freedom of expression and, in putting the onus on him to prove truth, his right to be presumed innocent. There was a real difference of opinion between the majority and the minority in the Court over whether the hate propaganda provisions of the criminal code would be effective to combat racial hatred, an objective all agreed was pressing and substantial. The minority was persuaded by the argument that the prosecution of hate propagandists can give their views free publicity and encourage a public suspicion that there may be something to what they say because it is suppressed. Though a newspaper report of Ernst Zundel’s relishing his Court battle was referred to, this does not appear to be an argument for which evidence was considered necessary. The minority was also impressed with the argument that the use of an anti-hate law in pre-Hitler Germany did no good. “Historical evidence” was relied on for this argument. But Chief Justice Dickson, writing for the majority, simply brushed aside this argument, most pertinently observing that post-war Germany had enacted new anti-hate legislation. Typically, Keegstra is a rambling political discussion given an air of detachment by the Oakes jargon of “minimal impairment” etc. and the citation of many authors putatively learned in the law and other subjects. It is clear, however, that in the end the Court is deciding whether it likes the legislation, without any deference to the legislature. Contrary to Sopinka’s claim in Dickason that the case did not depend on the government proving “that hate propaganda actually promoted hatred against an identifiable group” Dickson held:
...it would be difficult to deny that the suppression of hate propaganda reduces the harm such expression does to individuals who belong to identifiable groups and to relations between various cultural and religious groups in Canadian society. (C.C.C. 52; S.C.R.  767)

Keegstra contained a statement by Dickson of a common recent theme of flexibility in the use of the Oakes criteria:
The analytical framework of Oakes has been continually reaffirmed by this Court, yet it is dangerously misleading to conceive of s. 1 as a rigid and technical provision, offering nothing more than a last chance for the state to justify incursions into the realm of fundamental rights. From a crudely practical standpoint, Charter litigants sometimes may perceive s. 1 in this manner, but in the body our our nation’s constitutional law it plays and immeasurably richer role, one of great magnitude and sophistication. (C.C.C. 28; S.C.R. 735)
This typically vain and self-serving comment on the Court’s chief source of power cannot be read as indicating a readiness to defer to the legislatures. Rather it is an announcement of the Court’s refusal to be bound by the straight jacket it might have fashioned for itself in Oakes. A rigid application of Oakes might have obliged the Court to strike down legislation it liked when the evidence it called for was not forthcoming.

In Butler29, in which a Winnipeg adult video store owner challenged the obscenity provisions of the Criminal Code, Sopinka J. did find that the government could not prove that pornography caused harm to women. He referred to the conflicting conclusions of reports in Canada and the United States. Notwithstanding, he was prepared to uphold freshly interpreted obscenity legislation on the basis of the possibility of harm. But again there is no basis for the suggestion, encouraged by his own comment in Dickason, that he was deferring to parliament. Clearly he thought that the evidence of the possibility of harm was enough and that the obscenity law as he reinterpreted it was worth having to guard against the possibility of harm and he would not have deferred to parliament if he had not thought so. If he had taken the trouble to follow Oakes closely enough to speak of standard of proof, perhaps he would have been prepared to find that, on the balance of probability, pornography does cause harm.

The Supreme Court of Canada’s call for and acceptance of a mass of doubtful political evidence and its casual use of it has simply illustrated the incapacity of any Court satisfactorily to exercise the power that the Court so complacently holds. A proper use of evidence would limit its quantity and limit its use to showing that the legislature was reasonably addressing a problem and not simply contemptuous of rights and freedoms. It would see the Court expressly relying on evidence in its reasons or expressly rejecting it as unhelpful and unwanted. It would subsume evidence within an extended legislative history and allow the Court to speak once on the validity of legislation rather than leaving it open for fresh evidence or changed circumstances. Most importantly it would require the Court expressly to limit its own absolute power.

JOHN T. PEPALL

OCTOBER 22, 1994

1 P. W. Hogg, “Proof of Facts in Constitutional Cases”, 26 U.T.L.J. 386 (1976)
2 Muller v. State of Oregon (1908), 208 U.S. 412
3 K. C. Davis, “An Approach to the Problems of Evidence in the Administrative Process” (1942) 55 Harvard Law Review 364
4 Carl Baar, “Criminal Court Delay and the Charter: The Use and Misuse of Social Facts in Judicial Policy Making”, (1993) 72 C. B. R. 305 is an interesting discussion of the use and abuse of evidence in the Askov  fiasco, although biased by Baar’s interest as a part-time researcher in the field of Court delays and the source of much of the evidence.
5 Law Society of Upper Canada v. Skapinker (1984), 9 D.L.R. (4th) 161, [1984] 1 S.C.R. 357
6 Re Singh and Minister of Employment & Immigration (1985), 17 D.L.R. (4th) 422, [1985] 1 S.C.R. 177
7 R. v. Oakes (1986) 24 C.C.C. (3d) 321, 26 D.L.R. (4th) 200, [1986] 1 S.C.R. 103
8 Even more doubtful is the logic of appeals to international conventions [see Keegstra and Butler footnotes 28 and 29 infra ], but as these may be considered part of the law of Canada they may be left out of a consideration of the role of evidence.
9 Operation Dismantle v. The Queen (1985), 18 D.L.R. (4th) 481, [1985] 1 S.C.R. 441
10 Uncharacteristically Wilson J. seemed ready to accept a presumptive limit on the Court’s power to review “governmental action which concerns the relations of the state with other states...” (D.L.R. 490; S.C.R. 518)
11 Quoted by Brian G. Morgan in “Proof of Facts in Constitutional Litigation”, notes for an address at the University of Toronto Faculty of Law Constitutional Litigation Programme on February 26, 1986. The papers were revised and published as Robert J. Sharpe (ed.) Charter Litigation (Toronto, 1987). Morgan drops the quotation from Dickson but Katherine Swinton cites it in “What do the Courts Want from the Social Sciences”. Swinton and Morgan’s chapters and John Hagan’s “Can Social Science Save Us? The Problems and Prospects of Social Science Evidence in Constitutional Litigation” are a good representation of the state of knowledge and speculation in 1986. For the practitioner no more is known now.
12 R. v. Thomsen (1988), 40 C.C.C. (3d) 411, [1988] 1 S.C.R. 640
13 R. v. Hufsky (1988), 40 C.C.C. (3d) 398, [1988] 1 S.C.R. 621
14 R. v. Ladouceur (1988), 56 C.C.C. (3d) 22, [1990] 1 S.C.R. 1257
15 Ford v. Quebec (Attorney-General) (1988), 54 D.L.R. (4th) 577, [1988] 2 S.C.R. 712 and Devine v. Quebec (Attorney-General) (1988), 54 D.L.R. (4th) 641, [1988] 2 S.C.R. 790
16 Irwin Toy Ltd. v. Quebec (Attorney-General) (1989), D.L.R. (4th) 577, [1989] 1 S.C.R. 927
17 This is not exactly what Big M  (1985), 16 D.L.R. (4th) 321, [1985] 1 S.C.R. 295 says. There Ottawa only had legislative jurisdiction to pass the Lord’s Day Act if it was criminal law enforcing a religious observance. If it was that, according to the Court, it offended the religious freedom provision in paragraph 2(a) of the Charter. If the Lord’s Day Act only established a secular day of rest, the basis on which Ottawa tried to justify it, it was not within Ottawa’s legislative jurisdiction.
18 In Butler footnote 29 infra and R. v. Zundel  (1992) 95 D.L.R. (4th) 202, [1992] 2 S.C.R. 357 added confusion and argued with itself over whether there could be a shift in emphasis giving new constitutional life to legislation without the shift in purpose rejected in Big M. A shift in emphasis allowed obscenity legislation for the protection of women in Butler, but the argument that section 181 of the Criminal Code could now be considered anti-hate legislation was rejected.
19 (1989), 61 D.L.R. (4th) 385, [1989] 2 S.C.R. 357
20 McKinney v. University of Guelph (1990), 76 D.L.R. (4th) 545, [1990] 3 S.C.R. 292 and Harrison v. University of British Columbia (1990), 77 D.L.R. (4th) 55, [1990] 3 S.C.R.451
21 Stoffman v. Vancouver General Hospital (1990) 76 D.L.R. (4th) 700, [1990] 3 S.C.R. 483
22 T├ętrault-Gadoury v. Canada( Employment & Immigration Commission) (19910 (4th) 81 D.L.R. 358, [1991] 2 S.C.R. 22
23 Canada (Canadian Human Rights Commission) v. Taylor (1990), 75 D.L.R. (4th) 577, [1990 3 S.C.R. 892
24 Osborne v. Canada (Treasury Board) (1991) 82 D.L.R. (4th) 321, [1991] 3 S.C.R. 69
25 Lavigne v. Ontario Public Service Employees Union (1991), 81 D.L.R. (4th) 545, [1991] 3 S.C.R. 211
26 Dickason v. University of Alberta  (1992), 95 D.L.R. (4th) 439, [1992] 2 S.C.R. 1103. Dickason is not a Charter case, but the Court proceeded on the basis that the “reasonable and justifiable” defence provided for in the Alberta Individual’s Rights Protection Act was equivalent to section 1 of the Charter and embarked on an Oakes analysis.
27 R. v. Edwards Books and Art Ltd. (1986), 35 D.L.R. (4th) 1, [1986] 2 S.C.R. 713
28 R. v. Keegstra (1990) 61 C.C.C. (3d) 1, [1990] 3 S.C.R. 697
29 R. V. Butler (1992) 89 D.L.R. (4th) 449, [1992] 1 S.C.R. 452