This paper explores the uses and abuses of relying upon legislative fact evidence to prove a violation of a claimant’s constitutional rights. The Supreme Court of Canada has stated that, in the criminal law context, an accused is entitled to challenge a law that violates the constitutional rights of third parties but that applies in a constitutionally sound manner with respect to the accused. This principle spawned the conventional wisdom that in order to obtain a declaration that a statute is invalid, a litigant must present voluminous legislative fact evidence to demonstrate that the statute unjustifiably limits rights of third parties. However, the Court in Canada (Attorney General) v. Bedford stated that proof that a law violates a single individual’s Charter rights could be sufficient for the law to violate a constitutional norm. This paper discusses how the conventional wisdom that constitutional challenges should be supported by an array of legislative fact evidence might be displaced by the Court’s decision in Bedford. It also discusses the rationale and political viability of invalidating a law when the evidence shows that the law is “substantially constitutional and peripherally problematic”.
Young, Alan N..
"Proving a Violation: Rhetoric, Research and Remedy."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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