Evidence in Charter Cases
| Author | Paul B. Schabas |
| Pages | 515-541 |
Evidence
in
Charter
Cases
Paul
B.
Schabas*
A.
INTRODUCTION
Leading
evidence
in
Charter
cases
is
not,
in
principle,
different
than lead-
ing
evidence
in
other types
of
litigation.
Although
the
context
in
which
Charter
issues arise
may
impact
on the
evidence
and how it is put
for-
ward
(in
determining,
for
example, whether
a
right
has
been infringed
in
a
criminal case
or
where
a
legislative provision
is
being challenged
in a
civil application),
the
evidentiary rules
of the
proceeding continue
to
apply.
In
short, there
is no
magical
difference
between proving
a
Charter
breach
and
proving
a
fact
(such
as an
element
of an
offence,
defence, tort,
or
other legal wrong
or
defence)
in a
civil
or
criminal case.
On the
other hand, there
are
many
differences
in the
type
of
evidence
that
may be
called
in a
Charter
case.
In
particular,
social science evidence
on the
impact
of a law may be
particularly important.
Different
proce-
dural
considerations
may
arise, onuses
may
shift
depending
on the
case
and the
issues,
and the
evidence
may
well
be of a
kind that simply would
not be
considered
in a
non-constitutional context. Nevertheless,
the
basic
principles apply
— the
hearsay rule does
not
vanish,
an
expert must
be
well-qualified
and his or her
opinion must
be of
assistance
to the
court,
the
evidence must
be
relevant
to the
issues,
and it
must
be
introduced
in
accordance
with other evidentiary rules
and
principles.
*
Of
Blake,
Cassels
&
Graydon LLP.
I
wish
to
acknowledge
the
excellent assis-
tance
of
Courtney
Harris,
student-at-law.
515
516
PAUL
B.
SCHABAS
This
paper examines some evidentiary issues that arise
in
Charter
litigation.
It is not
intended
to be a
comprehensive examination
of the
topic,
but
rather seeks
to
provide
a
guide
to
certain areas
(e.g.,
proving
a
breach
of a
right
in
order
to
obtain
a
remedy under section
24 of the
Charter),
and to
raise questions
in
other contexts, particularly with
respect
to the
impact
of
social science evidence, evidence
of
legislative
history
and
purpose,
and
evidence relating
to
international
and
com-
parative law.
B.
PROVING
A
CHARTER
BREACH
AND
SEEKING
A
REMEDY
UNDER
SECTION
24
1)
Proving
the
Breach
The
burden
of
proving
a
breach
of a
Charter
right rests
on the
party
asserting
the
breach.1
In the
context
of a
criminal case, where
the
Char-
ter
issue
often
involves
not a
challenge
to
legislation
but
rather
to the
matters
specific
to
that case, such
as the
conduct
of the
police
or the
prosecution, only
the
breach
of the
accused's rights
may be
asserted
in
order
to
seek
a
remedy under section 24(1)
or
24(2).2
On the
other hand,
where
an
accused seeks
to
challenge
the
validity
of
legislation, such
as
the
statutory provision creating
the
offence,
the
breach
of the
rights
of
others
may be
relied upon
in
seeking
a
declaration
of
invalidity.
To put
this
distinction
in
context, where
an
accused seeks
to
exclude evidence
seized
by the
state under section
24 of the
Charter,
he or she can
only
do
so
where
his or her
right
under,
say, section
8 of the
Charter
has
been
breached.
On the
other
hand,
if the
offence
itself
is
unconstitutional
because
it
breaches
the
rights
of
others,
as was the
case
in R. v. Big
M
Drug
Mart3
and R. v.
Morgentaler,
Smoling
and
Scott,*
to
give
two of the
most well-known examples,
the
accused
may
raise
the
issue even
though
he or she may not be
directly
affected
other than
by the
impact
of
being convicted
for
breaching
a law
that
is
unconstitutional.5
1 R. v.
Collins,
[Collins];
R. v.
Kutynec
(1991),
7
O.K.
(3d)
277 at 283
(C.A.)
[Kutynec].
2
R. v.
Edwards,
128.
3
[Big
M
Drug
Mart].
4
[1988]
1
S.C.R
30
[Morgentaler].
5
Recently,
in
Cosselin
v.
Quebec
(Attorney-General),
[2002]
S.C.J.
No. 85
[Gosselin]
at
para.
295,
Bastarache
J.
reaffirmed
that "where
a
provision
is
struck
down
under
s. 52, a
retroactive
s.
24(1) remedy will
not
generally
be
available."
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