Evidence in Charter Cases: How to Prove 'Purpose

• Author: Robert E. Charney
• Profession: Ministry of the Attorney General
• Pages: 497-509

Evidence

in

Charter

Cases:

How

to

Prove "Purpose"

Robert

E.

Charney*

I

always voted

at my

party's call,

And I

never

thought

of

thinking

for

myself

at

all1

A.

INTRODUCTION

One of the

primary issues

in

most

Charter

cases relates

to a

determina-

tion

of the

purpose

of the

law.

The

court must discern

the

law's

purpose,

both

to

determine whether

a

substantive provision

of the

Charter

has

been infringed

and to

determine whether

an

infringement

can be

justi-

fied

under section

1. The

determination

of

legislative purpose

is

often

central

to the

outcome

of a

Charter

case. This paper will consider

the

evi-

dence that courts have

considered

admissible

to aid

this

determination,

and

which evidence

has

been considered inadmissible. Particular

focus

will

be

placed

on

whether Cabinet ministers

or

other members

of the

legislature

may be

compelled

to

give evidence with regard

to the

pur-

pose

of

legislation.

Counsel,

Constitutional

Law

Branch,

Ministry

of the

Attorney

General.

The

views

expressed

in

this

article

are my

own,

and do not

purport

to

represent

the

position

of the

Ministry

except

where indicated.

I

disclose,

in

advance,

that

I

acted

as one of the

counsel

in two

cases considered

in

this paper:

M.

v.

H.

a

nd

OTF

v.

Ontario.

Gilbert

and

Sullivan,

H.M.S.

Pinafore.

497

1

*