What is the test for adduce evidence that the government considered other than the impugned measure?

Courts will typically look to evidence that the government explored options other than the impugned measure and evidence supporting its reasons for rejecting those alternatives. The government may adduce evidence that it consulted with affected parties in order to demonstrate that it explored a range of options, though there is no requirement that the government engage in consultation before legislating: Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, at para. 157. The government might also adduce evidence to show that the less impairing alternatives proposed are not likely to achieve the government’s objectives or are otherwise not workable, or that the proposed alternatives are not in fact less impairing.

Although claimants will typically argue for particular alternatives, the burden remains on the government, and claimants do not necessarily need to definitely prove the effectiveness of proposed alternatives: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 119.