Is sufficient "constitutional facts" sufficient to establish Charter violations?

New Brunswick, Canada


The following excerpt is from Her Majesty in Right of the Province of NB v. NB Council of Nursing Home Unions (CUPE), 2019 NBQB 135 (CanLII):

The Province further argues that sufficient “constitutional facts” are even more important when the alleged Charter violation relates to the flow-through effects of the legislation. Justice Cory comments at paragraph 20 in MacKay v. Manitoba as follows: A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out. Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants' position. [Emphasis mine]

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