D. Burden of Proof and Section 1 Evidence

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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The initial burden of proving a violation of rights rests with the individual asserting a Charter violation. In light of the generous definition accorded Charter rights such as freedom of expression, this burden can, in some cases, be relatively easy to discharge. In other cases, it will be more difficult to establish a violation. Once a prima facie violation is proved, the burden shifts to the party attempting to justify the infringement as a reasonable limit. This means that the government has the burden of proof of establishing that limits on Charter rights are reasonable. Support for giving the government such a burden is found in the reference to limits that are "demonstrably justified" as well as the superior ability and resources of governments in establishing the need for limiting Charter rights. The standard of proof is the standard used in civil trial: proof on a balance of probabilities or preponderance of evidence.

The Supreme Court in Oakes indicated that governments seeking to justify limitations on rights will generally be required to present evidence in support of their argument. The result has been a significant expansion in the kinds of materials coming before the courts. Historical, philosophical, and economic data, as well as government reports (both domestic and international), are presented, sometimes through expert witnesses, sometimes by way of judicial notice.111Occasionally, however, the Court seems demanding with respect to evidence - for example, in the tobacco advertising case, the majority judges commented on the failure of the federal government to show why an alternative to a total ban on advertising would undermine the government’s objective. Not only had the government failed to show that it was necessary to have a...

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