I've had the privilege of being involved in cases where the constitutionality of legislation was an issue, particularly the Canadian Human Rights Act in the context of freedom of expression and also the separation of powers. Indeed, in the Pankiw case, there were questions as well about freedom of expression and whether applying the Canadian Human Rights Act to the sending of householders would infringe on freedom of expression.
The dilemma you point to is a situation where you have some views that are expressed by legislators or the executive branch about a bill being constitutional, then disagreements as to whether that's right, and ultimately and potentially, legal challenges. I think that's a reality in our system. We have the charter and then we have the Constitution generally, which provides that if legislation is inconsistent with those fundamental principles, it may be challenged and it may be quashed, as the case may be, by courts.
You will often have that situation where, until you have a decision of the court, you won't know for sure what the outcome is. Certainly, in those cases on constitutionality and the charter, a big part of that is often the justification of any infringement. It's up to the crown to bring forward that evidence in front of the courts to say that there was an important objective, and the measure is linked to that objective, and it's also proportional in that it's the least intrusive way that we could find.
It's difficult to know with 100% certainty how the court will assess that evidence and how they will come to a decision, so what you describe is, I think, a consequence of a system where ultimately those questions can be and are adjudicated by courts after they've been adopted.