Majority
The judgment of Dickson C.J. and Beetz, Chouinard, Lamer and Le Dain JJ. was delivered by
Lamer J.
Lamer J.‑‑
Introduction
A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person's right to liberty under s. 7 of the Charter of Rights and Freedoms (Constitution Act, 1982 , as enacted by the Canada Act, 1982, 1982 (U.K.), c. 11).
In other words, absolute liability and imprisonment cannot be combined.
The Facts
On August 16, 1982, the Lieutenant‑Governor in Council of British Columbia referred the following question to the Court of Appeal of that province, by virtue of s. 1 of the Constitutional Question Act, R.S.B.C. 1979, c. 63:
Is s. 94(2) of the Motor Vehicle Act, R.S.B.C. 1979, as amended by the Motor Vehicle Amendment Act, 1982, consistent with the Canadian Charter of Rights and Freedoms ?
On February 3, 1983, the Court of Appeal handed down reasons in answer to the question in which it stated that s. 94(2) of the Act is inconsistent with the Canadian Charter of Rights and Freedoms : (1983), 42 B.C.L.R. 364, 147 D.L.R. (3d) 539, 4 C.C.C. (3d) 243, 33 C.R. (3d) 22, 5 C.R.R. 148, 19 M.V.R. 63, [1983] 3 W.W.R. 756. The Attorney General for British Columbia launched an appeal to this Court.
The Legislation
Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 94, as amended by the Motor Vehicle Amendment Act, 1982, 1982 (B.C.), c. 36, s. 19:
94. (1) A person who drives a motor vehicle on a highway or industrial road while
(a) he is prohibited from driving a motor vehicle under sections 90, 91, 92 or 92.1, or
(b) his driver's licence or his right to apply for or obtain a driver's licence is suspended under section 82 or 92 as it was before its repeal and replacement came into force pursuant to the Motor Vehicle Amendment Act, 1982,
commits an offence and is liable,
(c) on a first conviction, to a fine of not less than $300 and not more than $2 000 and to imprisonment for not less than 7 days and not more than 6 months, and
(d) on a subsequent conviction, regardless of when the contravention occurred, to a fine Of not less than $300 and not more than $2 000 and to imprisonment for not less than 14 days and not more than one year.
(2) Subsection (1) creates an absolute liability offence in which guilt is established by proof of driving, whether or not the defendant knew of the prohibition or suspension.
Canadian Charter of Rights and Freedoms ; Constitution Act, 1982 :
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
The Judgment of the Court of Appeal of British Columbia
7. The Court was of the view that the phrase "principles of fundamental justice" was not restricted to matters of procedure, but extended to substantive law, and that the courts were "therefore called upon, in construing the provisions of s. 7 of the Charter , to have regard to the content of legislation".
Relying on the decision of this Court in R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, the Court of Appeal found "that s. 94(2) of the Motor Vehicle Act is inconsistent with the principles of fundamental justice". They did not heed the invitation of counsel opposing the validity of s. 94(2) to declare that, as a result of that decision by our Court, all absolute liability offences violated s. 7 of the Charter and could not be salvaged under s. 1. Quite the contrary, the Court of Appeal said that "there are, and will remain, certain public welfare offences, e.g. air and water pollution offences, where the public interest requires that the offences be absolute liability offences". Their finding was predicated on the following reasoning:
The effect of s. 94(2) is to transform the offence from a mens rea offence to an absolute liability offence, hence giving the defendant no opportunity to prove that his action was due to an honest and reasonable mistake of fact or that he acted without guilty intent. Rather than placing the burden to establish such facts on the defendant and thus making the offence a strict liability offence, the legislature has seen fit to make it an absolute liability offence coupled with a mandatory term of imprisonment.
It can therefore be inferred with certainty that, in the Court's view, the combination of mandatory imprisonment and absolute liability was offensive to s. 7. It cannot however be ascertained from their judgment whether the violation was triggered by the requirement of minimum imprisonment or solely by the availability of imprisonment as a sentence.
1. Introduction
The issue in this case raises fundamental questions of constitutional theory, including the nature and the very legitimacy of constitutional adjudication under the Charter as well as the appropriateness of various techniques of constitutional interpretation. I shall deal first with these questions of a more general and theoretical nature as they underlie and have shaped much of the discussion surrounding s. 7.
2. The Nature and Legitimacy of Constitutional Adjudication Under the Charter
The British Columbia Court of Appeal has written in the present case that the Constitution Act, 1982 has added a new dimension to the role of the courts in that the courts have now been empowered by s. 52 to consider not only the vires of legislation but also to measure the content of legislation against the constitutional requirements of the Charter .
The novel feature of the Constitution Act, 1982 , however, is not that it has suddenly empowered courts to consider the content of legislation. This the courts have done for a good many years when adjudicating upon the vires of legislation. The initial process in such adjudication has been characterized as "a distillation of the constitutional value represented by the challenged legislation" (Laskin, Canadian Constitutional Law (3rd ed. rev. 1969), p. 85), and as identifying "the true meaning of the challenged law" (Lederman (ed.), The Courts and the Canadian Constitution (1964), p. 186), and "an abstract of the statute's content" (Professor A. S. Abel, "The Neglected Logic of 91 and 92" (1969), 19 U. of T. L.J. 487, p. 490). This process has of necessity involved a measurement of the content of legislation against the requirements of the Constitution, albeit within the more limited sphere of values related to the distribution of powers.
The truly novel features of the Constitution Act, 1982 are that it has sanctioned the process of constitutional adjudication and has extended its scope so as to encompass a broader range of values. Content of legislation has always been considered in constitutional adjudication. Content is now to be equally considered as regards new constitutional issues. Indeed, the values subject to constitutional adjudication now pertain to the rights of individuals as well as the distribution of governmental powers. In short, it is the scope of constitutional adjudication which has been altered rather than its nature, at least, as regards the right to consider the content of legislation.
In neither case, be it before or after the Charter , have the courts been enabled to decide upon the appropriateness of policies underlying legislative enactments. In both instances, however, the courts are empowered, indeed required, to measure the content of legislation against the guarantees of the Constitution. The words of Dickson J. (as he then was) in Amax Potash Ltd. v. Government of Saskatchewan, [1977] 2 S.C.R. 576, at p. 590, continue to govern:
The Courts will not question the wisdom of enactments ... but it is the high duty of this Court to insure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power.
In this respect, s. 7 is no different than other Charter provisions. As the Attorney General for Ontario has noted in his factum:
Section 7, like most of the other sections in the Charter , limits the bounds of legislative action. It is the function of the Court to determine whether the challenged legislation has honoured those boundaries. This process necessitates judicial review of the content of the legislation.
Yet, in the context of s. 7, and in particular, of the interpretation of "principles of fundamental justice", there has prevailed in certain quarters an assumption that all but a narrow construction of s. 7 will inexorably lead the courts to "question the wisdom of enactments", to adjudicate upon the merits of public policy.
From this have sprung warnings of the dangers of a judicial "super‑legislature" beyond the reach of Parliament, the provincial legislatures and the electorate. The Attorney General for Ontario, in his written argument, stated that,
... the judiciary is neither representative of, nor responsive to the electorate on whose behalf, and under whose authority policies are selected and given effect in the laws of the land.
This is an argument which was heard countless times prior to the entrenchment of the Charter but which has in truth, for better or for worse, been settled by the very coming into force of the Constitution Act, 1982 . It ought not to be forgotten that the historic decision to entrench the Charter in our Constitution was taken not by the courts but by the elected representatives of the people of Canada. It was those representatives who extended the scope of constitutional adjudication and entrusted the courts with this new and onerous responsibility. Adjudication under the Charter must be approached free of any lingering doubts as to its legitimacy.
The concerns with the bounds of constitutional adjudication explain the characterization of the issue in a narrow and restrictive fashion, i.e., whether the term "principles of fundamental justice" has a substantive or merely procedural content. In my view, the characterization of the issue in such fashion preempts an open‑minded approach to determining the meaning of "principles of fundamental justice".
The substantive/procedural dichotomy narrows the issue almost to an all‑or‑nothing proposition. Moreover, it is largely bound up in the American experience with substantive and procedural due process. It imports into the Canadian context American concepts, terminology and jurisprudence, all of which are inextricably linked to problems concerning the nature and legitimacy of adjudication under the U.S. Constitution. That Constitution, it must be remembered, has no s. 52 nor has it the internal checks and balances of ss. 1 and 33. We would, in my view, do our own Constitution a disservice to simply allow the American debate to define the issue for us, all the while ignoring the truly fundamental structural differences between the two constitutions. Finally, the dichotomy creates its own set of difficulties by the attempt to distinguish between two concepts whose outer boundaries are not always clear and often tend to overlap. Such difficulties can and should, when possible, be avoided.
The overriding and legitimate concern that courts ought not to question the wisdom of enactments, and the presumption that the legislator could not have intended same, have to some extent distorted the discussion surrounding the meaning of "principles of fundamental justice". This has led to the spectre of a judicial "super‑legislature" without a full consideration of the process of constitutional adjudication and the significance of ss. 1 and 33 of the Charter and s. 52 of the Constitution Act, 1982 . This in turn has also led to a narrow characterization of the issue and to the assumption that only a procedural content to "principles of fundamental justice" can prevent the courts from adjudicating upon the merits or wisdom of enactments. If this assumption is accepted, the inevitable corollary, with which I would have to then agree, is that the legislator intended that the words "principles of fundamental justice" refer to procedure only.
But I do not share that assumption. Since way back in time and even recently the courts have developed the common law beyond procedural safeguards without interfering with the "merits or wisdom" of enactments (e.g., Kienapple v. The Queen, [1975] 1 S.C.R. 729, entrapment, non‑retrospectivity of offences, presumptions against relaxing the burden of proof and persuasion, to give a few examples).
The task of the Court is not to choose between substantive or procedural content per se but to secure for persons "the full benefit of the Charter 's protection" (Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344), under s. 7, while avoiding adjudication of the merits of public policy. This can only be accomplished by a purposive analysis and the articulation (to use the words in Curr v. The Queen, [1972] S.C.R. 889, at p. 899) of "objective and manageable standards" for the operation of the section within such a framework.
I propose therefore to approach the interpretation of s. 7 in the manner set forth by Dickson J. in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and R. v. Big M Drug Mart Ltd., supra, and by Le Dain J. in R. v. Therens, [1985] 1 S.C.R. 613. In R. v. Big M Drug Mart Ltd., Dickson J. wrote at p. 344:
In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.
In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter . The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter 's protection.
3. The Principles of Fundamental Justice
I would first note that I shared the views of Wilson J. in her statement in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 205, that "it is incumbent upon the Court to give meaning to each of the elements, life, liberty and security of the person, which make up the ‘right’ contained in s. 7". Each of these, in my view, is a distinct though related concept to be construed as such by the courts. It is clear that s. 7 surely protects the right not to be deprived of one's life, liberty and security of the person when that is done in breach of the principles of fundamental justice. The outcome of this case is dependent upon the meaning to be given to that portion of the section which states "and the right not to be deprived thereof except in accordance with the principles of fundamental justice". On the facts of this case it is not necessary to decide whether the section gives any greater protection, such as deciding whether, absent a breach of the principles of fundamental justice, there still can be, given the way the section is structured, a violation of one's rights to life, liberty and security of the person under s. 7. Furthermore, because of the fact that only depreviation of liberty was considered in these proceedings and that no one took issue with the fact that imprisonment is a deprivation of liberty, my analysis of s. 7 will be limited, as was the course taken by all, below and in this Court, to determining the scope of the words "principles of fundamental justice", I will not attempt to give any further content to liberty nor address that of the words life or security of the person.
In the framework of a purposive analysis, designed to ascertain the purpose of the s. 7 guarantee and "the interests it was meant to protect" (R. v. Big M Drug Mart Ltd., supra), it is clear to me that the interests which are meant to be protected by the words "and the right not to be deprived thereof except in accordance with the principles of fundamental justice" of s. 7 are the life, liberty and security of the person. The principles of fundamental justice, on the other hand, are not a protected interest, but rather a qualifier of the right not to be deprived of life, liberty and security of the person.
Given that, as the Attorney General for Ontario has acknowledged, "when one reads the phrase ‘principles of fundamental justice’, a single incontrovertible meaning is not apparent", its meaning must, in my view, be determined by reference to the interests which those words of the section are designed to protect and the particular role of the phrase within the section. As a qualifier, the phrase serves to establish the parameters of the interests but it cannot be interpreted so narrowly as to frustrate or stultify them. For the narrower the meaning given to "principles of fundamental justice" the greater will be the possibility that individuals may be deprived of these most basic rights. This latter result is to be avoided given that the rights involved are as fundamental as those which pertain to the life, liberty and security of the person, the deprivation of which "has the most severe consequences upon an individual" (R. v. Cadeddu (1982), 40 O.R. (2d) 128 (H.C.), at p. 139).
For these reasons, I am of the view that it would be wrong to interpret the term "fundamental justice" as being synonymous with natural justice as the Attorney General of British Columbia and others have suggested. To do so would strip the protected interests of much, if not most, of their content and leave the "right" to life, liberty and security of the person in a sorely emaciated state. Such a result would be inconsistent with the broad, affirmative language in which those rights are expressed and equally inconsistent with the approach adopted by this Court toward the interpretation of Charter rights in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, per Estey J., and Hunter v. Southam Inc., supra.
It would mean that the right to liberty would be narrower than the right not to be arbitrarily detained or imprisoned (s. 9), that the right to security of the person would have less content than the right to be secure against unreasonable search or seizure (s. 8). Such an interpretation would give the specific expressions of the "right to life, liberty and security of the person" which are set forth in ss. 8 to 14 greater content than the general concept from which they originate.
Sections 8 to 14, in other words, address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person set forth in s. 7. It would be incongruous to interpret s. 7 more narrowly than the rights in ss. 8 to 14. The alternative, which is to interpret all of ss. 8 to 14 in a "narrow and technical" manner for the sake of congruity, is out of the question (Law Society of Upper Canada v. Skapinker, supra, at p. 366).
Sections 8 to 14 are illustrative of deprivations of those rights to life, liberty and security of the person in breach of the principles of fundamental justice. For they, in effect, illustrate some of the parameters of the "right" to life, liberty and security of the person; they are examples of instances in which the "right" to life, liberty and security of the person would be violated in a manner which is not in accordance with the principles of fundamental justice. To put matters in a different way, ss. 7 to 14 could have been fused into one section, with inserted between the words of s. 7 and the rest of those sections the oft utilised provision in our statutes, "and, without limiting the generality of the foregoing (s. 7) the following shall be deemed to be in violation of a person's rights under this section". Clearly, some of those sections embody principles that are beyond what could be characterized as "procedural".
Thus, ss. 8 to 14 provide an invaluable key to the meaning of "principles of fundamental justice". Many have been developed over time as presumptions of the common law, others have found expression in the international conventions on human rights. All have been recognized as essential elements of a system for the administration of justice which is founded upon a belief in "the dignity and worth of the human person" (preamble to the Canadian Bill of Rights, R.S.C. 1970, App. III) and on "the rule of law" (preamble to the Canadian Charter of Rights and Freedoms).
It is this common thread which, in my view, must guide us in determining the scope and content of "principles of fundamental justice". In other words, the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system. Such an approach to the interpretation of "principles of fundamental justice" is consistent with the wording and structure of s. 7, the context of the section, i.e., ss. 8 to 14, and the character and larger objects of the Charter itself. It provides meaningful content for the s. 7 guarantee all the while avoiding adjudication of policy matters.
Thus, it seems to me that to replace "fundamental justice" with the term "natural justice" misses the mark entirely. It was, after all, clearly open to the legislator to use the term natural justice, a known term of art, but such was not done. We must, as a general rule, be loath to exchange the terms actually used with terms so obviously avoided.
Whatever may have been the degree of synonymy between the two expressions in the past, (which in any event has not been clearly demonstrated by the parties and interveners), as of the last few decades this country has given a precise meaning to the words natural justice for the purpose of delineating the responsibility of adjudicators (in the wide sense of the word) in the field of administrative law.
It is, in my view, that precise and somewhat narrow meaning that the legislator avoided, clearly indicating thereby a will to give greater content to the words "principles of fundamental justice", the limits of which were left for the courts to develop but within, of course, the acceptable sphere of judicial activity.
4. Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada
A number of courts have placed emphasis upon the Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution in the interpretation of "principles of fundamental justice", e.g., Latham v. Solicitor General of Canada, [1984] 2 F.C. 734, 39 C.R. (3d) 78; Re Mason; Mason v. R. in Right of Canada (1983), 35 C.R. (3d) 393 (Ont. H.C.); R. v. Holman (1982), 28 C.R. (3d) 378 (B.C. Prov. Ct.)
In particular, the following passages dealing with the testimony of federal civil servants from the Department of Justice, have been relied upon:
Mr. Strayer (Assistant Deputy Minister, Public Law):
Mr. Chairman, it was our belief that the words "fundamental justice" would cover the same thing as what is called procedural due process, that is the meaning of due process in relation to requiring fair procedure. However, it in our view does not cover the concept of what is called substantive due process, which would impose substantive requirements as to policy of the law in question.
This has been most clearly demonstrated in the United States in the area of property, but also in other areas such as the right to life. The term due process has been given the broader concept of meaning both the procedure and substance. Natural justice or fundamental justice in our view does not go beyond the procedural requirements of fairness.
...
Mr. Strayer: The term "fundamental justice" appears to us to be essentially the same thing as natural justice.
Mr. Tassé (Deputy Minister) also said of the phrase "principles of fundamental justice" in testimony before the Committee:
We assume that the Court would look at that much like a Court would look at the requirements of natural justice, and the concept of natural justice is quite familiar to courts and they have given a good deal of specific meaning to the concept of natural justice. We would think that the Court would find in that phraseology principles of fundamental justice a meaning somewhat like natural justice or inherent fairness.
Courts have been developing the concept of administrative fairness in recent years and they have been able to give a good deal of consideration, certainly to these sorts of concepts and we would expect they could do the same with this.
The Honourable Jean Chrétien, then federal Minister of Justice, also indicated to the Committee that, while he thought "fundamental justice marginally more appropriate than natural justice" in s. 7, either term was acceptable to the Government.
(a) Admissibility
The first issue which arises is whether the Minutes of the Proceedings and Evidence of the Special Joint Committee may even be considered admissible as extrinsic aids to the interpretation of Charter provisions. Such extrinsic materials were traditionally excluded from consideration in constitutional adjudication: e.g., Gosselin v. The King (1903), 33 S.C.R. 255, at p. 264; Reference re Wartime Leasehold Regulations, [1950] S.C.R. 124.
In Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, at p. 317, however, McIntyre J. stated that,
The general exclusionary rule formerly considered to be applicable in dealing with the admissibility of extrinsic evidence in constitutional cases has been set aside or at least greatly modified and relaxed.
Indeed, in the reference Re: Anti‑Inflation Act, [1976] 2 S.C.R. 373, Laskin C.J. stated, at p. 389:
...no general principle of admissibility or inadmissibility can or ought to be propounded by this Court, and ...the questions of resort to extrinsic evidence and what kind of extrinsic evidence may be admitted must depend on the constitutional issues on which it is sought adduce such evidence.
This approach was adopted by Dickson J. in the reference Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, and McIntyre J. in Reference re Upper Churchill Water Rights Reversion Act, supra, in which he stated at p. 318:
It will therefore be open to the Court in a proper case to receive and consider extrinsic evidence on the operation and effect of the legislation.
It is to be noted, however, that McIntyre J.'s remarks are in relation to the interpretation of the challenged statutory enactment rather than the interpretation of the Constitution itself. The same is true of the remarks of Laskin C.J. and Dickson J.
With respect to the interpretation of the Constitution, however, such extrinsic materials were considered, in at least two cases, by this Court.
In Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54, the Court stated, at p. 66:
It is, we think, proper to consider the historical background which led to the provision which was made in the Act for the creation of the Senate as a part of the apparatus for the enactment of federal legislation. In the debates which occurred at the Quebec Conference in 1864, considerable time was occupied in discussing the provisions respecting the Senate. Its important purpose is stated in the following passages in speeches delivered in the debates on Confederation in the parliament of the province of Canada:
The other case is Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206. Laskin C.J., in that case, referred to the pre‑Confederation debates in the course of interpreting ss. 91(27) and 92(14) of the Constitution Act, 1867 (at p. 225).
I would adopt this approach when interpreting the Charter . Consequently, the Minutes of the Proceedings and Evidence of the Special Joint Committee on the Constitution should, in my view, be considered.
(b) Weight
Having said that, however, I nonetheless believe that the logic underlying the reluctance to allow the use of materials such as speeches in Parliament carries considerable force with respect to the Minutes of the Committee as well.
In Reference re Upper Churchill Water Rights Reversion Act, supra, McIntyre J. wrote at p. 319;
... I would say that the speeches and public declarations by prominent figures in the public and political life of Newfoundland on this question should not be received as evidence. They represent, no doubt, the considered views of the speakers at the time they were made, but cannot be said to be expressions of the intent of the Legislative Assembly.
Professor J. E. Magnet has written in "The Presumption of Constitutionality" (1980), 18 Osgoode Hall L.J. 87, at pp. 99‑100:
In an administrative law setting, "The admissibility of ... (factual) evidence (on the issue of legislative intent) ... seems so clear as not to require authority ...."
The transposition of the administrative law principle to a constitutional context is problematic. In the administrative law cases, the issue of intent concerns the intent of a specific person. In the constitutional cases, the issue of intent concerns the legislature, an incorporeal body made up of hundreds of persons. It may be said that such a body, like a corporation, is a legal fiction and has no intention in the relevant sense. It would follow that legislative intent, in the constitutional setting, is a hollow concept.
Largely in consideration of this argument, Canadian courts have developed the rule that, in scrutinizing legislative intent for the purpose of determining constitutional validity, statements by members of the legislature during passage of the challenged Act are irrelevant and inadmissible. Several explanations of the rule have been put forward. Strayer has argued that the rule is sound because legislative motive is irrelevant to constitutional validity: "The essential factual issue here is that of effect...." More convincingly, it has been argued that, considering the way in which the Canadian process of enactment differs from that of the United States, "Hansard gives no convincing proof of what the government intended...." Moreover, by allowing ambiguities in the statute to be resolved by statements in the legislature, ministers would be given power in effect to legislate indirectly by making such statements. "Cabinets already have powers enough without having this added unto them."
If speeches and declarations by prominent figures are inherently unreliable (per McIntyre J. in Reference re Upper Churchill Water Rights Reversion Act, supra, at p. 319) and "speeches made in the legislature at the time of enactment of the measure are inadmissible as having little evidential weight" (per Dickson J. in the reference Re: Residential Tenancies Act 1979, supra, at p. 721), the Minutes of the Proceedings of the Special Joint Committee, though admissible, and granted somewhat more weight than speeches should not be given too much weight. The inherent unreliability of such statements and speeches is not altered by the mere fact that they pertain to the Charter rather than a statute.
Moreover, the simple fact remains that the Charter is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter . How can one say with any confidence that within this enormous multiplicity of actors, without forgetting the role of the provinces, the comments of a few federal civil servants can in any way be determinative?
Were this Court to accord any significant weight to this testimony, it would in effect be assuming a fact which is nearly impossible of proof, i.e., the intention of the legislative bodies which adopted the Charter . In view of the indeterminate nature of the data, it would in my view be erroneous to give these materials anything but minimal weight.
Another danger with casting the interpretation of s. 7 in terms of the comments made by those heard at the Special Joint Committee Proceedings is that, in so doing, the rights, freedoms and values embodied in the Charter in effect become frozen in time to the moment of adoption with little or no possibility of growth, development and adjustment to changing societal needs. Obviously, in the present case, given the proximity in time of the Charter debates, such a problem is relatively minor, even though it must be noted that even at this early stage in the life of the Charter , a host of issues and questions have been raised which were largely unforeseen at the time of such proceedings. If the newly planted "living tree" which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials, such as the Minutes of Proceedings and Evidence of the Special Joint Committee, do not stunt its growth. As Estey J. wrote in Law Society of Upper Canada v. Skapinker, supra, at pp. 366‑67:
Narrow and technical interpretation, if not modulated by a sense of the unknowns of the future, can stunt the growth of the law and hence the community it serves. All this has long been with us in the process of developing the institutions of government under the B.N.A. Act, 1867 (now the Constitution Act, 1867). With the Constitution Act, 1982 comes a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which, like the balance of the Constitution, remains to be interpreted and applied by the Court.
5. The Canadian Bill of Rights
The appellant states that s. 7 "is a blend of s. 1(a) and s. 2(e) of the Canadian Bill of Rights". Considerable emphasis is then placed upon the case of Duke v. The Queen, [1972] S.C.R. 917, in which this Court interpreted the words "principles of fundamental justice" in s. 2(e) of the Canadian Bill of Rights. Fauteux C.J. noted, at p. 923:
Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias, and in a judicial temper, and must give to him the opportunity adequately to state his case.
However, as Le Dain J. has written in R. v. Therens, supra, with the implicit support of the majority, at p. 638:
In my opinion the premise that the framers of the Charter must be presumed to have intended that the words used by it should be given the meaning which had been given to them by judicial decisions at the time the Charter was enacted is not a reliable guide to its interpretation and application. By its very nature a constitutional charter of rights and freedoms must use general language which is capable of development and adaptation by the courts.
And after at pp. 638‑39:
Although it is clear that in several instances, as in the case of s. 10, the framers of the Charter adopted the wording of the Canadian Bill of Rights, it is also clear that the Charter must be regarded, because of its constitutional character, as a new affirmation of rights and freedoms and of judicial power and responsibility in relation to their protection.
. . .
In considering the relationship of a decision under the Canadian Bill of Rights to an issue arising under the Charter , a court cannot, in my respectful opinion, avoid bearing in mind an evident fact of Canadian judicial history, which must be squarely and frankly faced: that on the whole, with some notable exceptions, the courts have felt some uncertainty or ambivalence in the application of the Canadian Bill of Rights because it did not reflect a clear constitutional mandate to make judicial decisions having the effect of limiting or qualifying the traditional sovereignty of Parliament. The significance of the new constitutional mandate for judicial review provided by the Charter was emphasized by this Court in its recent decisions in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, and Hunter v. Southam Inc., supra.
This view was also put forward by Wilson J. in her judgment in Singh v. Minister of Employment and Immigration, supra, with which Dickson C.J. and Lamer J. concurred, at p. 209:
It seems to me rather that the recent adoption of the Charter by Parliament and nine of the ten provinces as part of the Canadian constitutional framework has sent a clear message to the courts that the restrictive attitude which at times characterized their appproach to the Canadian Bill of Rights ought to be re‑examined.
In any event, the Duke case is of little assistance in the interpretation of s. 7 of the Charter . Section 2(e) of the Canadian Bill of Rights states:
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
...
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
In section 2(e) of the Canadian Bill of Rights, the words "principles of fundamental justice" were placed explicitly in the context of, and qualify a "right to a fair hearing". Section 7 of the Charter does not create the same context. In section 7, the words "principles of fundamental justice" are placed in the context of, and qualify much more fundamental rights, the "right to life, liberty and security of the person". The distinction is important.
Conclusion
I have, in this judgment, undertaken a purposive analysis of the term "principles of fundamental justice" in s. 7 of the Charter in accordance with the method established by this Court in R. v. Big M Drug Mart Ltd., supra. Accordingly, the point of departure for the analysis has been a consideration of the general objectives of the Charter in the light of the general principles of Charter interpretation set forth in Law Society of Upper Canada v. Skapinker, supra, and Hunter v. Southam Inc., supra. This was followed by a detailed analysis of the language and structure of the section as well as its immediate context within the Charter .
The main sources of support for the argument that "fundamental justice" is simply synonymous with natural justice have been the Minutes of the Proceedings and Evidence of the Special Joint Committee on the Constitution and the Canadian Bill of Rights jurisprudence. In my view, neither the Minutes nor the Canadian Bill of Rights jurisprudence are persuasive or of any great force. The historical usage of the term "fundamental justice" is, on the other hand, shrouded in ambiguity. Moreover, not any one of these arguments, taken singly or as a whole, manages to overcome in my respectful view the textual and contextual analyses.
Consequently, my conclusion may be summarized as follows:
The term "principles of fundamental justice" is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right.
Sections 8 to 14 address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are therefore illustrative of the meaning, in criminal or penal law, of "principles of fundamental justice"; they represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter , as essential elements of a system for the administration of justice which is founded upon the belief in the dignity and worth of the human person and the rule of law.
Consequently, the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system.
We should not be surprised to find that many of the principles of fundamental justice are procedural in nature. Our common law has largely been a law of remedies and procedures and, as Frankfurter J. wrote in McNabb v. United States 318 U.S. 332 (1942), at p. 347, "the history of liberty has largely been the history of observance of procedural safeguards". This is not to say, however, that the principles of fundamental justice are limited solely to procedural guarantees. Rather, the proper approach to the determination of the principles of fundamental justice is quite simply one in which, as Professor L. Tremblay has written, "future growth will be based on historical roots" ("Section 7 of the Charter : Substantive Due Process?"(1984), 18 U.B.C.L. Rev. 201, at p. 254).
Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.
Consequently, those words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meaning as the courts address alleged violations of s. 7.
I now turn to such an analysis of the principle of mens rea and absolute liability offences in order to determine the question which has been put to the Court in the present Reference.
Absolute Liability and Fundamental Justice in Penal Law
It has from time immemorial been part of our system of laws that the innocent not be punished. This principle has long been recognized as an essential element of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and on the rule of law. It is so old that its first enunciation was in Latin actus non facit reum nisi mens sit rea.
As Glanville Williams said:
There is no need here to go into the remote history of mens rea; suffice it to say that the requirement of a guilty state of mind (at least for the more serious crimes) had been developed by the time of Coke, which is as far back as the modern lawyer needs to go. "If one shoot at any wild fowl upon a tree, and the arrow killeth any reasonable creature afar off, without any evil intent in him, this is per infortunium."
(Glanville Williams, Criminal Law, The General Part, 2nd ed. (London, 1961), at p. 30.)
One of the many judicial statements on the subject worth mentioning is of the highest authority, per Goddard C.J. in Harding v. Price, [1948] 1 K.B. 695, at p. 700, where he said:
The general rule applicable to criminal cases is actus non facit reum nisi mens sit rea, and I venture to repeat what I said in Brend v. Wood (1946), 62 T.L.R. 462, 463: `It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind'.
This view has been adopted by this Court in unmistakable terms in many cases, amongst which the better known are Beaver v. The Queen, [1957] S.C.R. 531, and the most recent and often quoted judgment of Dickson J. writing for the Court in R. v. City of Sault Ste. Marie, supra.
This Court's decision in the latter case is predicated upon a certain number of postulates one of which, given the nature of the rules it elaborates, has to be to the effect that absolute liability in penal law offends the principles of fundamental justice. Those principles are, to use the words of Dickson J., to the effect that "there is a generally held revulsion against punishment of the morally innocent". He also stated that the argument that absolute liability "violates fundamental principles of penal liability" was the most telling argument against absolute liability and one of greater force than those advanced in support thereof.
In my view it is because absolute liability offends the principles of fundamental justice that this Court created presumptions against legislatures having intended to enact offences of a regulatory nature falling within that category. This is not to say, however, and to that extent I am in agreement with the Court of Appeal, that, as a result, absolute liability per se offends s. 7 of the Charter .
A law enacting an absolute liability offence will violate s. 7 of the Charter only if and to the extent that it has the potential of depriving of life, liberty, or security of the person.
Obviously, imprisonment (including probation orders) deprives persons of their liberty. An offence has that potential as of the moment it is open to the judge to impose imprisonment. There is no need that imprisonment, as in s. 94(2), be made mandatory.
I am therefore of the view that the combination of imprisonment and of absolute liability violates s. 7 of the Charter and can only be salvaged if the authorities demonstrate under s. 1 that such a deprivation of liberty in breach of those principles of fundamental justice is, in a free and democratic society, under the circumstances, a justified reasonable limit to one's rights under s. 7.
As no one has addressed imprisonment as an alternative to the non‑payment of a fine, I prefer not to express any views in relation to s. 7 as regards that eventuality as a result of a conviction for an absolute liability offence; nor do I need to address here, given the scope of my finding and the nature of this appeal, minimum imprisonment, whether it offends the Charter per se or whether such violation, if any, is dependent upon whether it be for a mens rea or strict liability offence. Those issues were not addressed by the court below and it would be unwise to attempt to address them here. It is sufficient and desirable for this appeal to make the findings I have and no more, that is, that no imprisonment may be imposed for an absolute liability offence, and, consequently, given the question put to us, an offence punishable by imprisonment cannot be an absolute liability offence.
Before considering s. 94(2) in the light of these findings, I feel we are however compelled to go somewhat further for the following reason. I would not want us to be taken by this conclusion as having inferentially decided that absolute liability may not offend s. 7 as long as imprisonment or probation orders are not available as a sentence. The answer to that question is dependant upon the content given to the words "security of the person". That issue was and is a live one. Indeed, though the question as framed focuses on absolute liability (s. 94(2)) in relation to the whole Charter , including the right to security of the person in s. 7, because of the presence of mandatory imprisonment in s. 94(1) only deprivation of liberty was considered. As the effect of imprisonment on the right to liberty is a foregone conclusion, a fortiori minimum imprisonment, everyone directed their arguments when discussing s. 7 to considering whether absolute liability violated the principles of fundamental justice, and then subsidiarily argued pro or contra the effect of s. 1 of the Charter .
Counsel for those opposing the validity of s. 94(2) took the position in this Court that absolute liability and severe punishment, always referring to imprisonment, violated s. 7 of the Charter . From the following passage of the judgment in the Court of Appeal it would appear that counsel for those opposing the validity of the section took the wider position in that Court that all absolute liability offences violated s. 7 because of "punishment of the morally innocent":
In seeking to persuade the court to that conclusion counsel opposing the validity of s. 94(2) contended all absolute offences are now of no force and effect because of s. 7 of the Charter and that the provisions of s. 1 of the Charter should not be invoked to sustain them. In support of this submission counsel relied upon the view expressed by Dickson J. in Sault Ste. Marie that there was ‘a generally held revulsion against punishment of the morally innocent’. They contended that had the Charter been in effect when Sault Ste. Marie was decided all absolute liability offences would have been struck down.
We accept without hesitation the statement expressed by the learned justice but do not think it necessarily follows that because of s. 7 of the Charter this category of offence can no longer be legislated. To the contrary, there are, and will remain, certain public welfare offences, e.g., air and water pollution offences, where the public interest requires that the offences be absolute liability offences.
While I agree with the Court of Appeal, as I have already mentioned, that absolute liability does not per se violate s. 7 of the Charter , I am somewhat concerned with leaving without comment the unqualified reference by the Court of Appeal to the requirements of the "public interest".
If, by reference to public interest, it was meant that the requirements of public interest for certain types of offences is a factor to be considered in determining whether absolute liability offends the principles of fundamental justice, then I would respectfully disagree; if the public interest is there referred to by the Court as a possible justification under s. 1 of a limitation to the rights protected at s. 7, then I do agree.
Indeed, as I said, in penal law, absolute liability always offends the principles of fundamental justice irrespective of the nature of the offence; it offends s. 7 of the Charter if as a result, anyone is deprived of his life, liberty or security of the person, irrespective of the requirement of public interest. In such cases it might only be salvaged for reasons of public interest under s. 1.
In this latter regard, something might be added.
Administrative expediency, absolute liability's main supportive argument, will undoubtedly under s. 1 be invoked and occasionally succeed. Indeed, administrative expediency certainly has its place in administrative law. But when administrative law chooses to call in aid imprisonment through penal law, indeed sometimes criminal law and the added stigma attached to a conviction, exceptional, in my view, will be the case where the liberty or even the security of the person guaranteed under s. 7 should be sacrificed to administrative expediency. Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.
Of course I understand the concern of many as regards corporate offences, specially, as was mentioned by the Court of Appeal, in certain sensitive areas such as the preservation of our vital environment and our natural resources. This concern might well be dispelled were it to be decided, given the proper case, that s. 7 affords protection to human persons only and does not extend to corporations.
Indeed, the public interest as regards "air and water pollution offences" requires that the guilty be dealt with firmly, but the seriousness of the offence does not in my respectful view support the proposition that the innocent human person be open to conviction, quite the contrary.
Section 94(2)
No doubt s. 94(2) enacts in the clearest of terms an absolute liability offence, the conviction for which a person will be deprived of his or her liberty, and little more, if anything, need be added. However, I should not want to conclude without addressing an argument raised by the appellant in this Court and considered by the British Columbia Court of Appeal.
The appellant argues that, as a result of the case of R. v. MacDougall, [1982] 2 S.C.R. 605, s. 94(2) (the absolute liability provision) is of limited effect. Hence, the section raises "a false impression of a potential for wholesale injustice," says the appellant. In my view, this argument is of little relevance to the determination of this appeal. Whether the provision is of broad or of "limited" effect does not change its nature nor lead to a different characterization for the purpose of determining a violation of s. 7. The question is whether the provision offends s. 7 of the Charter at all, rather than whether it does so in "limited" or "wholesale" fashion. At best, this argument may be considered under s. 1.
The appellant summarizes the decision in MacDougall as establishing that "where an accused is charged with driving a motor vehicle while his licence was cancelled (contrary to a provincial statute) and the revocation in question arose automatically as a matter of law pursuant to a provincial statute, ignorance by the accused of the fact that his licence was revoked is ignorance of law and cannot provide the basis for an acquittal".
The respondent, however, distinguishes the MacDougall case from the case at bar on two grounds. First, the offence under consideration in MacDougall was one of strict liability rather than absolute liability. Secondly, while MacDougall "dealt only with a suspension by operation of law, section 94(2) encompasses Court imposed suspensions (section 90(2)), suspensions arising under the `old law' in the absence of the accused, and suspensions imposed by administrative review by the Superintendent of Motor Vehicles requiring delivery of notice (‘old’ act, Section 82(3))". Thus, the respondent concludes that there are "at least three classes of morally innocent persons who are, by Section 94(2) deprived of the opportunity to present a defence of the type outlined by Dickson J. in Regina v. Sault Ste. Marie, (1978) 2 S.C.R. 1299 at 1326".
The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.
In the final analysis, it seems that both the appellant and the respondent agree that s. 94 will impact upon the right to liberty of a limited number of morally innocent persons. It creates an absolute liability offence which effects a deprivation of liberty for a limited number of persons. To me, that is sufficient for it to be in violation of s. 7.
Having found that s. 94(2) offends s. 7 of the Charter there remains the question as to whether the appellants have demonstrated that the section is salvaged by the operation of s. 1 of the Charter . No evidence was adduced in the Court of Appeal or in this Court. The position in that regard and the argument in support of the operability of s. 94(2) is as follows in appellant's factum:
If this Court rules that S. 94(2) of the Motor Vehicle Act is inconsistent with S. 7 (or S. 11(d)) of the Charter , then it is submitted that S. 1 of the Charter is applicable. It is submitted that Laskin J. (as he then was) made it clear in Curr v. The Queen, supra, that it is within the scope of judicial notice for this Court to recognize that a statutory provision was enacted as part of a legislative scheme aimed at reducing the human and economic cost of bad driving. S. 94 is but part of the overall scheme laid out in the Motor Vehicle Act by which the Legislature is attempting to get bad drivers off the road. S. 94 imposes severe penalties on those who drive while prohibited from driving and those who drive while their driver's licence is suspended.
It is submitted that if S. 94(2) is inconsistent with one of the above‑noted provisions of the Charter , then S. 94(2) contains a ‘reasonable limit, etc.’ within the meaning of S. 1 of the Charter .
I do not take issue with the fact that it is highly desirable that "bad drivers" be kept off the road. I do not take issue either with the desirability of punishing severely bad drivers who are in contempt of prohibitions against driving. The bottom line of the question to be addressed here is: whether the Government of British Columbia has demonstrated as justifiable that the risk of imprisonment of a few innocent is, given the desirability of ridding the roads of British Columbia of bad drivers, a reasonable limit in a free and democratic society. That result is to be measured against the offence being one of strict liability open to a defence of due diligence, the success of which does nothing more than let those few who did nothing wrong remain free.
As did the Court of Appeal, I find that this demonstration has not been satisfied, indeed, not in the least.
In the result, I would dismiss the appeal and answer the question in the negative, as did the Court of Appeal, albeit for somewhat different reasons, and declare s. 94(2) of the Motor Vehicle Act, R.S.B.C. 1979, as amended by the Motor Vehicle Amendment Act, 1982, inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms .
Having come to this conclusion, I choose, as did the Court of Appeal, not to address whether the section violates the rights guaranteed under ss. 11(d) and 12 of the Charter .
The following are the reasons delivered by
McIntyre J.
McIntyre J.‑‑I agree with Lamer J. that s. 94(2) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, as amended by the Motor Vehicle Amendment Act, 1982, (1982) (B.C.), c. 36, s. 19, is inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms . I agree that "fundamental justice", as the term is used in the Charter , involves more than natural justice (which is largely procedural) and includes as well a substantive element. I am also of the view that on any definition of the term "fundamental justice" the imposition of minimum imprisonment for an offence in respect of which no defence can be made, and which may be committed unknowingly and with no wrongful intent, deprives or may deprive of liberty and it offends the principles of fundamental justice.
I would accordingly dismiss the appeal and answer the constitutional question in the negative.
The following are the reasons delivered by
Wilson J.
Wilson J.‑‑I agree with my colleague, Mr. Justice Lamer, that s. 94(2) of the Motor Vehicle Act violates s. 7 of the Charter and is not saved by s. 1. I reach that result, however, by a somewhat different route.
I start with a consideration of statutory "offences". These are divisible into offences for which mens rea is required and those for which it is not. Statutory offences are subject to a presumption in favour of a mens rea requirement as a matter of interpretation, but the courts have increasingly come to accept the proposition that legislatures may create non mens rea offences provided they make it clear that the actus reus itself is prohibited. This is typically so in the case of the so‑called "regulatory" or "public welfare" offences. There is no moral delinquency involved in these offences. They are simply designed to regulate conduct in the public interest.
Two questions, therefore, have to be answered on this appeal. The first is do absolute liability offences created by statute per se offend the Charter ? The second is, assuming they do not, can they be attended by mandatory imprisonment or can such a sanction only be attached to true mens rea offences? Certainly, in the absence of the Charter , legislatures are free to create absolute liability offences and to attach to them any sanctions they please. Does s. 7 of the Charter circumscribe their power in this regard?
1. Absolute Liability Offences
Section 7 affirms the right to life, liberty and security of the person while at the same time indicating that a person may be deprived of such a right if the deprivation is effected "in accordance with the principles of fundamental justice". I do not view the latter part of the section as a qualification on the right to life, liberty and security of the person in the sense that it limits or modifies that right or defines its parameters. Its purpose seems to me to be the very opposite, namely to protect the right against deprivation or impairment unless such deprivation or impairment is effected in accordance with the principles of fundamental justice.
Section 7 does not, however, affirm a right to the principles of fundamental justice per se. There must first be found an impairment of the right to life, liberty or security of the person. It must then be determined whether that impairment has been effected in accordance with the principles of fundamental justice. If it has, it passes the threshold test in s. 7 itself but the Court must go on to consider whether it can be sustained under s. 1 as a limit prescribed by law on the s. 7 right which is both reasonable and justified in a free and democratic society. If, however, the limit on the s. 7 right has been effected through a violation of the principles of fundamental justice, the enquiry, in my view, ends there and the limit cannot be sustained under s. 1. I say this because I do not believe that a limit on the s. 7 right which has been imposed in violation of the principles of fundamental justice can be either "reasonable" or "demonstrably justified in a free and democratic society". The requirement in s. 7 that the principles of fundamental justice be observed seems to me to restrict the legislature's power to impose limits on the s. 7 right under s. 1. It can only limit the s. 7 right if it does so in accordance with the principles of fundamental justice and, even if it meets that test, it still has to meet the tests in s. 1.
Assuming that I am correct in my analysis of s. 7 and its relationship to s. 1, an absolute liability offence cannot violate s. 7 unless it impairs the right to life, liberty or security of the person. It cannot violate s. 7 because it offends the principles of fundamental justice because they are not protected by s. 7 absent an impairment of the s. 7 right. Leaving aside for the moment the mandatory imprisonment sanction, I cannot find an interference with life, liberty or security of the person in s. 94 of the Motor Vehicle Act. It is true that the section prevents citizens from driving their vehicles when their licences are suspended. Citizens are also prevented from driving on the wrong side of the road. Indeed, all regulatory offences impose some restriction on liberty broadly construed. But I think it would trivialize the Charter to sweep all those offences into s. 7 as violations of the right to life, liberty and security of the person even if they can be sustained under s. 1. It would be my view, therefore, that absolute liability offences of this type do not per se offend s. 7 of the Charter .
2. Absolute Liability Plus Mandatory Imprisonment
The real question, as I see it, is whether s. 7 of the Charter is violated by the attachment of a mandatory imprisonment sanction to an absolute liability offence. Clearly a s. 7 right is interfered with here in that a person convicted of such an offence automatically loses his liberty.
In what circumstances then may the citizen be deprived of his right to liberty? Clearly not if he was deprived of it through a process which was procedurally unfair. But is s. 7 limited to that?
I would assume that one of the reasons for the rider attached to the right to liberty affirmed in s. 7 is to accommodate the criminal justice system. It will be through the criminal justice system that citizens will typically lose their liberty at the hands of government. The system must not, therefore, cause them to lose their liberty in violation of the principles of fundamental justice. The system must reflect those principles and the validity of the penal provisions must be assessed in relation to them.
Since s. 94(2) of the Motor Vehicle Act imposes a limit prescribed by law on the s. 7 right, we must determine whether fundamental justice is offended by attaching mandatory imprisonment to an absolute liability offence. Given that we can have statutory non mens rea offences, what is repugnant to fundamental justice in imprisoning someone for their commission?
At common law imprisonment was reserved for the more serious mens rea offences. However, we are dealing here with statutory offences and the legislation must stand unless it violates s. 7. We cannot, in my view, simply state as a bald proposition that absolute liability and imprisonment cannot co‑exist in a statutory context. Legislatures can supersede the common law. The legislature may consider it so important to prevent a particular act from being committed that it absolutely forbids it and, if it is committed, may subject the offender to a penalty whether he has any mens rea or not and whether or not he had any intention of breaking the law. Prior to the Charter such legislation would have been unassailable. Now it must meet the test of s. 7. Where the legislature has imposed a penalty in the form of mandatory imprisonment for the commission of an absolute liability offence and has done so in clear and unambiguous language, can the legislation survive an attack under s. 7? It is suggested that such legislation cannot survive because it offends the principles of fundamental justice and, in particular, the principle that punishment is inappropriate in the absence of moral culpability.
The common law distinguished sharply the conduct of the wrongdoer from his state of mind at the time. Hence the famous maxim referred to by my colleague‑‑actus non facit reum nisi mens sit rea. The important thing to note, however, is that while the maxim has always been viewed as identifying the essential ingredients of a crime at common law, its meaning has been subject to a process of historical and juridical development, particularly the concept of mens rea. In the earliest beginnings of criminal liability the mental state of the wrongdoer was not considered at all; it was enough that he had done the fell deed: see Holdsworth, A History of English Law (1923), vol. 2, pp. 50 et seq. At a later stage the accused's state of mind was considered for two distinct purposes, namely (1) to determine whether his conduct was voluntary or involuntary; and (2) to determine whether he realized what the consequences of his conduct might be. But the first purpose was viewed as the key one. It was considerably later in the development of the law of criminal responsibility that the emphasis changed and an appreciation of the consequences of his act became the central focus. The movement towards the concept of the "guilty mind" was not, however, a sudden or dramatic one. This is understandable. The judges of the day found the new rule hard to apply because it was difficult to look into the state of a man's mind. The ecclesiastical authorities, however, had no such problem and legal historians seem to agree that the ecclesiastical influence was largely responsible for moving the focus to the mental element in common law crime: see Holdsworth, supra, p. 259.
The introduction of concepts of morality into criminal responsibility inevitably led to a sharp distinction between crimes which were mala in se and crimes which were merely mala prohibita. Blackstone describes crimes which were mala in se as offences against "those rights which God and nature have established" (Blackstone, Commentaries on the Laws of England (17th ed. by E. Christian, 1830)), p. 53 and crimes which were mala prohibita as breaches of "those laws which enjoin only positive duties, and forbid any such things as are not mala in se... without any intermixture of moral guilt" (Blackstone, ibid., p. 57). This distinction is now pretty well discredited: see Archbold's Pleading, Evidence & Practice in Criminal Cases, 30th ed. (1938), p. 900; Allen, Legal Duties and Other Essays in Jurisprudence (1931), p. 239. While it is undoubtedly a fact that certain crimes evoke feelings of revulsion and condemnation in the minds of most people, those feelings are now generally perceived as dependent upon a number of variable factors such as environment, education and religious prejudice and are no longer seen as providing a secure basis for the segregation of crimes into two different categories. Quoting from Kenny's Outlines of Criminal Law, 16th ed. by J. W. C. Turner, 1952, at pp. 22‑23:
Among the members of any community at a given period, certain offences are by general agreement regarded as especially serious and excite deep moral reprobation, whereas other transgressions are regarded as venial and are more or less condoned, especially when they infringe rules of law which are unpopular. It is indeed inevitable that this apportionment of blame should be made. Yet the vague and fluctuating line which in everyday life is drawn between the one group and the other only marks a variation in degree; it is not a boundary which separates things fundamentally alien in kind. Ethical reprobation of homicide, homosexuality, libel, adultery, bigamy and slave trading, to take a few examples, is not the same in all countries, and indeed may vary from section to section of the people in the same country.
...
This defective classification of crimes clearly formed an unsound premise from which to draw any jurisprudential conclusion but it has an insidious attraction, and in the form of English phrases such as "in itself unlawful" it has penetrated into one or two modern judgments with vitiating effects upon the logic and clarity of the argument.
Accepting that a guilty mind was an essential ingredient of a crime at common law, it does not, of course, follow that the same is true of a "crime" created by statute. I have already referred to the presumption against absolute liability as a matter of statutory interpretation. This undoubtedly reflects the common law approach to the nature of crime. It is, however, only a presumption. Provided it does so in clear and unambiguous terms the legislature is free to make a person liable for the actus reus with or without mens rea.
In Kenny's Outlines of Criminal Law, supra, p. 4, the author highlights the difficulty in identifying any essential characteristics of crimes created by statute. He points out that such crimes originate in the government policy of the day and that, so long as crimes continue to be created by government policy, the nature of statutory crime will elude definition. Lord Atkin adverted to the same difficulty in Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310. He stated at p. 324:
... the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.
In R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5, Ritchie J., speaking for the majority of this Court, said at p. 13:
Generally speaking, there is a presumption at common law that mens rea is an essential ingredient of all cases that are criminal in the true sense, but a consideration of a considerable body of case law on the subject satisfies me that there is a wide category of offences created by statutes enacted for the regulation of individual conduct in the interests of health, convenience, safety and the general welfare of the public which are not subject to any such presumption.
There seems to be no doubt that in s. 94 of the Motor Vehicle Act the legislature of British Columbia has created such an offence. Subsection (2) expressly precludes the application of any presumption in favour of a mens rea requirement. However, as already indicated, I do not believe that any principle of fundamental justice is offended by the creation of an absolute liability offence absent an impairment of the s. 7 right.
Is fundamental justice offended then by the attachment of a mandatory term of imprisonment to the s. 94 offence? Is there something repugnant about imprisoning a person for the commission of an absolute liability offence? Presumably no objection can be taken to attaching penal consequences such as a fine to a validly enacted absolute liability offence, only to penal consequences in the form of imprisonment if this gives rise to a violation of s. 7 of the Charter . If it does, then the Court is not only empowered, but obligated by the Constitution, to strike the section down.
I have already indicated that in my view a law which interferes with the liberty of the citizen in violation of the principles of fundamental justice cannot be saved by s. 1 as being either reasonable or justified. The concepts are mutually exclusive. This is not, of course, to say that no limits can be put upon the right to life, liberty and security of the person. They clearly can, but only if they are imposed in accordance with the principles of fundamental justice and survive the tests in s. 1 as being reasonable and justified in a free and democratic society. Nor is the government precluded from resort to s. 33 of the Charter in order to dispense with the requirements of fundamental justice when, in a case of emergency, it seeks to impose restrictions on the s. 7 right. This, however, will be a policy decision for which the government concerned will be politically accountable to the people. As it is, s. 94 cannot, in my view, be saved by s. 1 if it violates s. 7. The sole question is whether it violates s. 7.
My colleague, in finding that s. 94 offends the principles of fundamental justice, has relied heavily upon the common law which precluded punishment in the absence of a guilty mind. We are not, however, dealing with a common law crime here. We are dealing with a statutory offence as to which the legislature has stated in no uncertain terms that guilt is established by proof of the act itself.
Unlike my colleague, I do not think that ss. 8 to 14 of the Charter shed much light on the interpretation of the phrase "in accordance with the principles of fundamental justice" as used in s. 7. I find them very helpful as illustrating facets of the right to life, liberty and security of the person. I am not ready at this point, however, to equate unreasonableness or arbitrariness or tardiness as used in some of these sections with a violation of the principles of fundamental justice as used in s. 7. Delay, for example, may be explained away or excused or justified on a number of grounds under s. 1. I prefer, therefore, to treat these sections as self‑standing provisions, as indeed they are.
I approach the interpretive problem raised by the phrase "the principles of fundamental justice" on the assumption that the legislature was very familiar with the concepts of "natural justice" and "due process" and the way in which those phrases had been judicially construed and applied. Yet they chose neither. Instead they chose the phrase "the principles of fundamental justice". What is "fundamental justice"? We know what "fundamental principles" are. They are the basic, bedrock principles that underpin a system. What would "fundamental principles of justice" mean? And would it mean something different from "principles of fundamental justice"? I am not entirely sure. We have been left by the legislature with a conundrum. I would conclude, however, that if the citizen is to be guaranteed his right to life, liberty and security of the person‑‑surely one of the most basic rights in a free and democratic society‑‑then he certainly should not be deprived of it by means of a violation of a fundamental tenet of our justice system.
It has been argued very forcefully that s. 7 is concerned only with procedural injustice but I have difficulty with that proposition. There is absolutely nothing in the section to support such a limited construction. Indeed, it is hard to see why one's life and liberty should be protected against procedural injustice and not against substantive injustice in a Charter that opens with the declaration:
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:
and sets out the guarantee in broad and general terms as follows:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
I cannot think that the guaranteed right in s. 7 which is to be subject only to limits which are reasonable and justifiable in a free and democratic society can be taken away by the violation of a principle considered fundamental to our justice system. Certainly the rule of law acknowledged in the preamble as one of the foundations on which our society is built is more than mere procedure. It will be for the courts to determine the principles which fall under the rubric "the principles of fundamental justice". Obviously not all principles of law are covered by the phrase; only those which are basic to our system of justice.
I have grave doubts that the dichotomy between substance and procedure which may have served a useful purpose in other areas of the law such as administrative law and private international law should be imported into s. 7 of the Charter . In many instances the line between substance and procedure is a very narrow one. For example, the presumption of innocence protected in s. 11(d) of the Charter may be viewed as a substantive principle of fundamental justice but it clearly has both a substantive and a procedural aspect. Indeed, any rebuttable presumption of fact may be viewed as procedural, as going primarily to the allocation of the burden of proof. Nevertheless, there is also an interest of substance to be protected by the presumption, namely the right of an accused to be treated as innocent until proved otherwise by the Crown. This right has both a societal and an individual aspect and is clearly fundamental to our justice system. I see no particular virtue in isolating its procedural from its substantive elements or vice versa for purposes of s. 7. A similar analysis may be made of the rule against double jeopardy protected in s. 11(h).
How then are we to decide whether attaching a mandatory term of imprisonment to an absolute liability offence created by statute offends a principle of fundamental justice? I believe we must turn to the theory of punishment for the answer.
3. Punishment and Fundamental Justice
It is now generally accepted among penologists that there are five main objectives of a penal system: see Nigel Walker, Sentencing in a Rational Society, 1969. They are:
(1) to protect offenders and suspected offenders against unofficial retaliation;
(2) to reduce the incidence of crime;
(3) to ensure that offenders atone for their offences;
(4) to keep punishment to the minimum necessary to achieve the objectives of the system; and
(5) to express society's abhorrence of crime.
Apart from death, imprisonment is the most severe sentence imposed by the law and is generally viewed as a last resort i.e., as appropriate only when it can be shown that no other sanction can achieve the objectives of the system.
The Law Reform Commission of Canada in its Working Paper 11, "Imprisonment and Release", in Studies on Imprisonment (1976), states at p. 10:
Justice requires that the sanction of imprisonment not be disproportionate to the offence, and humanity dictates that it must not be heavier than necessary to achieve its objective.
Because of the absolute liability nature of the offence created by s. 94(2) of the Motor Vehicle Act a person can be convicted under the section even although he was unaware at the time he was driving that his licence was suspended and was unable to find this out despite the exercise of due diligence. While the legislature may as a matter of government policy make this an offence, and we cannot question its wisdom in this regard, the question is whether it can make it mandatory for the courts to deprive a person convicted of it of his liberty without violating s. 7. This, in turn, depends on whether attaching a mandatory term of imprisonment to an absolute liability offence such as this violates the principles of fundamental justice. I believe that it does. I think the conscience of the court would be shocked and the administration of justice brought into disrepute by such an unreasonable and extravagant penalty. It is totally disproportionate to the offence and quite incompatible with the objective of a penal system referred to in paragraph (4) above.
It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system. This is not to say that there is an inherently appropriate relationship between a particular offence and its punishment but rather that there is a scale of offences and punishments into which the particular offence and punishment must fit. Obviously this cannot be done with mathematical precision and many different factors will go into the assessment of the seriousness of a particular offence for purposes of determining the appropriate punishment but it does provide a workable conventional framework for sentencing. Indeed, judges in the exercise of their sentencing discretion have been employing such a scale for over a hundred years.
I believe that a mandatory term of imprisonment for an offence committed unknowingly and unwittingly and after the exercise of due diligence is grossly excessive and inhumane. It is not required to reduce the incidence of the offence. It is beyond anything required to satisfy the need for "atonement". And society, in my opinion, would not be abhorred by an unintentional and unknowing violation of the section. I believe, therefore, that such a sanction offends the principles of fundamental justice embodied in our penal system. Section 94(2) is accordingly inconsistent with s. 7 of the Charter and must, to the extent of the inconsistency, be declared of no force and effect under s. 52. I express no view as to whether a mandatory term of imprisonment for such an offence represents an arbitrary imprisonment within the meaning of s. 9 of the Charter or "cruel and unusual treatment or punishment" within the meaning of s. 12 because it is not necessary to decide those issues in order to answer the constitutional question posed.
I would dismiss the appeal and answer the constitutional question in the negative.
Cases cited
- 42 B.C.L.R. 364 42 B.C.L.R. 364 ¶ 5
- 3 W.W.R. 756 3 W.W.R. 756 ¶ 5
- R. v. Sault Ste. Marie item-2605-1978-05-01 1326 ¶ 8, ¶ 72, ¶ 92
- Amax Potash Ltd. Etc. v. The Government of Saskatchewan item-2675-1976-10-05 p 590 ¶ 14
- Kienapple v. R. item-4274-1974-02-11 ¶ 20
- R. v. Big M Drug Mart Ltd. 18125-1985-04-24 p 344 ¶ 21, ¶ 22, ¶ 24, ¶ 59
- Curr v. The Queen item-2704-1972-05-01 p 899 ¶ 21, ¶ 94, ¶ 113
- Hunter et al. v. Southam Inc. 17569-1984-09-17 ¶ 22, ¶ 26, ¶ 55, ¶ 59
- R. v. Therens 17692-1985-05-23 ¶ 22, ¶ 55
- Singh v. Minister of Employment and Immigration 17898, 17904, 17952, 17997, 18207, 18209, 18235-1985-04-04 p 205 ¶ 23, ¶ 56
- R. v. Cadeddu 40 O.R. (2d) 128 p 139 ¶ 25
- Law society of Upper Canada v. Skapinker 17537-1984-05-03 p. 366, pp. 366 ¶ 26, ¶ 28, ¶ 53, ¶ 55, ¶ 59
- Latham v. Solicitor General of Canada 2 F.C. 734 ¶ 35
- Right of Canada 35 C.R. (3d) 393 ¶ 35
- R. v. Holman 28 C.R. (3d) 378 ¶ 35
- Gosselin v. The King scr-33-255 p 264 ¶ 38
- Reference re Wartime Leasehold Regulations scr-1950-124 ¶ 38
- Reference re Upper Churchill Water Rights Reversion Act 17064-1984-05-03 p 317, p. 319 ¶ 39, ¶ 41, ¶ 48, ¶ 50
- Re: Anti-Inflation Act item-2696-1976-07-12 ¶ 40
- Re Residential Tenancies Act item-2515-1981-05-28 ¶ 41
- Re: Authority of Parliament in relation to the Upper House item-5637-1979-12-21 ¶ 44
- A.G. (Can.) v. Can. Nat. Transportation, Ltd. 16998-1983-10-13 ¶ 45
- Re: Residential Tenancies Act 1979 Re: Residential Tenancies Act 1979, supra, at p. 721 p. 721 ¶ 50
- Duke v. The Queen item-2705-1972-06-29 ¶ 54
- Beaver v. The Queen scr-1957-531 ¶ 72
- R. v. MacDougall 16617-1982-11-23 ¶ 90, ¶ 91, ¶ 92
- Holdsworth Holdsworth, supra ¶ 112
- Kenny's Outlines of Criminal Law Kenny's Outlines of Criminal Law, supra ¶ 115
- Proprietary Articles Trade Association v. Attorney General for Canada A.C. 310 ¶ 115
- R. v. Pierce Fisheries Ltd. item-4879-1970-06-26 ¶ 116
Statutes and regulations cited
-
Canadian Charter of Rights and Freedoms ¶ 2, ¶ 4, ¶ 5, ¶ 6, ¶ 7, ¶ 8, ¶ 10, ¶ 11, ¶ 14, ¶ 15, ¶ 16, ¶ 19, ¶ 21, ¶ 22, ¶ 26, ¶ 30, ¶ 31, ¶ 38, ¶ 46, ¶ 50, ¶ 51, ¶ 52, ¶ 53, ¶ 55, ¶ 56, ¶ 57, ¶ 58, ¶ 59, ¶ 63, ¶ 65, ¶ 74, ¶ 75, ¶ 77, ¶ 78, ¶ 79, ¶ 80, ¶ 81, ¶ 83, ¶ 90, ¶ 94, ¶ 97, ¶ 98, ¶ 99, ¶ 101, ¶ 103, ¶ 106, ¶ 107, ¶ 111, ¶ 118, ¶ 119, ¶ 121, ¶ 123, ¶ 124, ¶ 130
- s. 7 ¶ 2, ¶ 7, ¶ 8, ¶ 9, ¶ 10, ¶ 15, ¶ 21, ¶ 22, ¶ 23, ¶ 24, ¶ 28, ¶ 29, ¶ 31, ¶ 37, ¶ 53, ¶ 54, ¶ 57, ¶ 58, ¶ 59, ¶ 63, ¶ 65, ¶ 66, ¶ 67, ¶ 74, ¶ 75, ¶ 77, ¶ 78, ¶ 79, ¶ 80, ¶ 81, ¶ 82, ¶ 83, ¶ 85, ¶ 86, ¶ 87, ¶ 90, ¶ 93, ¶ 94, ¶ 97, ¶ 99, ¶ 101, ¶ 103, ¶ 104, ¶ 105, ¶ 106, ¶ 107, ¶ 108, ¶ 109, ¶ 110, ¶ 111, ¶ 117, ¶ 118, ¶ 119, ¶ 121, ¶ 123, ¶ 124, ¶ 128, ¶ 130
- s. 94(2) ¶ 5, ¶ 8, ¶ 76, ¶ 79, ¶ 80, ¶ 89, ¶ 90, ¶ 94
- s. 19 ¶ 6, ¶ 99
- 92.1 ¶ 6
- s. 1 ¶ 8, ¶ 18, ¶ 19, ¶ 77, ¶ 79, ¶ 80, ¶ 82, ¶ 83, ¶ 85, ¶ 87, ¶ 90, ¶ 93, ¶ 94, ¶ 101, ¶ 105, ¶ 106, ¶ 119, ¶ 121
- s. 33 ¶ 18, ¶ 19, ¶ 119
- s. 9 ¶ 27, ¶ 130
- s. 8 ¶ 27, ¶ 28, ¶ 29, ¶ 30, ¶ 31, ¶ 63, ¶ 121
- s. 14 ¶ 27, ¶ 28, ¶ 29, ¶ 30, ¶ 31, ¶ 63, ¶ 121
- s. 10 ¶ 55
- s. 94(1) ¶ 79
- Section 94(2) ¶ 88, ¶ 92, ¶ 130
- section 94(2) ¶ 92
- section 90(2) ¶ 92
- Section 82(3) ¶ 92
- s. 11(d) ¶ 98, ¶ 124
- s. 11(h) ¶ 124
- s. 52 ¶ 130
- s. 12 ¶ 130
-
Canadian Bill of Rights
-
Unresolved citations
- s. 1 of the Constitutional Question Act ¶ 4
- s s. 94(2) of the Motor Vehicle Act ¶ 4
- Subsection (1) ¶ 6
- the Constitution ¶ 7, ¶ 12, ¶ 14, ¶ 34, ¶ 35, ¶ 42, ¶ 43, ¶ 60
- s. 94(2) of the Motor Vehicle Act ¶ 8, ¶ 97, ¶ 99, ¶ 101, ¶ 110, ¶ 128
- s. 94 of the Motor Vehicle Act ¶ 106, ¶ 117
- Subsection (2) ¶ 117