Les questions constitutionnelles ne doivent pas être tranchée lorsqu'il y a un vide factuel

Federation of Law Societies of Canada v. Canada (Attorney General), 2011 BCSC 1270 (CanLII)

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[66]           The reluctance of the courts to engage in Charter analyses in a factual vacuum was recently commented on by the Ontario Court of Appeal in Abou-Elmaati v. Canada ( Attorney General), 2011 ONCA 95 (CanLII), 2011 ONCA 95 at para. 39, where the Court noted “[i]t is not only unnecessary but also usually unwise to attempt to decide constitutional issues in the absence of a concrete factual situation.”

[67]           The Supreme Court of Canada discussed the need for a proper factual foundation for Charter arguments in Mackay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357 and Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086. In Mackay, Cory J. stated at 361-362:

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. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.

[68]           In Danson at 1099-1100, Sopinka J. distinguished between two categories of facts: adjudicative facts, which concern the immediate parties; and legislative facts, which establish the purpose and background of the legislation. Adjudicative facts are specific and must be proved by admissible evidence, whereas legislative facts are more general in nature and subject to less stringent requirements for admissibility. At 1100-1101, Sopinka J. noted that MacKay did not stand for the proposition that such facts must be established in all Charter challenges. Rather each case must be considered on its own facts, or lack thereof. However, in general, there must be admissible evidence of the alleged effects of the impugned legislation in a Charter challenge based upon allegations that the effects of the legislation are unconstitutional.