04/20/2304/20/23 11

Re B.C. Motor Vehicle Re B.C. Motor Vehicle Act, 1985Act, 1985

04/20/2304/20/23 22

Some PreliminariesSome Preliminaries

By common law, legal offenses require two By common law, legal offenses require two elements:elements:

1.1. Actus ReusActus Reus: “guilty act” (or omission): “guilty act” (or omission)

2.2. Mens ReaMens Rea: “guilty mind”: “guilty mind”

““actus non facit reum nisi mens sit reaactus non facit reum nisi mens sit rea””

"a person cannot be convicted and "a person cannot be convicted and punished in a proceeding of a criminal nature punished in a proceeding of a criminal nature unless it can be shown that he had a guilty unless it can be shown that he had a guilty mind". mind".

04/20/2304/20/23 33

Mens ReaMens Rea

"a particular state of mind such as the "a particular state of mind such as the intent to cause, or some foresight of, the intent to cause, or some foresight of, the results of the act or the state of affairs." results of the act or the state of affairs."

((R v DaviaultR v Daviault [1994] 3 SCR 63 at para. 74) [1994] 3 SCR 63 at para. 74)

04/20/2304/20/23 44

Mens Rea, cont’dMens Rea, cont’d

Four Traditional CategoriesFour Traditional CategoriesAgent acts:Agent acts:1.1. Purposely: Purposely: has an actual, consciously formed has an actual, consciously formed

intent to achieve the criminal consequenceintent to achieve the criminal consequence2.2. Knowingly: Knowingly: has a conscious awareness that his has a conscious awareness that his

conduct will produce the consequenceconduct will produce the consequence3.3. Recklessly: Recklessly: exhibits conscious disregard of the exhibits conscious disregard of the

fact that conduct creating an unreasonable perilfact that conduct creating an unreasonable peril4.4. NegligentlyNegligently displays inadvertence to peril that displays inadvertence to peril that

would have been apparent to a reasonable manwould have been apparent to a reasonable man

04/20/2304/20/23 55

Absolute LiabilityAbsolute Liability

Absolute liabilityAbsolute liability offenses offenses No mens reaNo mens rea requirement requirement Actus reus sufficientActus reus sufficient to establish guilt to establish guilt Often used in Often used in “regulatory offenses”“regulatory offenses” – e.g. – e.g.

pollution controls, product liability, etc.pollution controls, product liability, etc. ReasonsReasons: efficiency; difficulty in proving mens : efficiency; difficulty in proving mens

rea; importance of regulating activity; deep rea; importance of regulating activity; deep pockets; fair that party causing risk (often for pockets; fair that party causing risk (often for financial reward) shoulders burdens of riskfinancial reward) shoulders burdens of risk

04/20/2304/20/23 66

Criminal Law OffensesCriminal Law Offenses

Traditionally, common law criminal Traditionally, common law criminal offenses offenses requirerequire mens rea mens rea

Unjust to convict, punish, and impose Unjust to convict, punish, and impose stigma of criminality on, agent without stigma of criminality on, agent without mens rea – without “guilty mind”mens rea – without “guilty mind”

Traditionally, knowledge and intention Traditionally, knowledge and intention requiredrequired

Recklessness sometimes acceptedRecklessness sometimes accepted ““Criminal negligence” controversialCriminal negligence” controversial

04/20/2304/20/23 77

Principles of Natural JusticePrinciples of Natural Justice

Concern Concern procedural fairnessprocedural fairness Attempt to ensure a fair decision Attempt to ensure a fair decision

“…“…the tribunal which adjudicates upon [a the tribunal which adjudicates upon [a person’s] rights must act person’s] rights must act fairlyfairly, in , in good faithgood faith, , without without biasbias, and in a , and in a judicial temperjudicial temper, and , and must give to him the must give to him the opportunity adequately opportunity adequately to state his caseto state his case.” .” Duke v. The QueenDuke v. The Queen, , [1972] S.C.R. 917[1972] S.C.R. 917

04/20/2304/20/23 88

Principles of Natural Justice, Principles of Natural Justice, cont’dcont’d

Two Rules:Two Rules:

1.1. The Hearing RuleThe Hearing Rule: : audi alteram partemaudi alteram partem – – opportunity to prepare and present evidence opportunity to prepare and present evidence and to respond to evidence and arguments and to respond to evidence and arguments presented by opposing sidepresented by opposing side Right to face one’s accusersRight to face one’s accusers

04/20/2304/20/23 99

Principles of Natural Justice, Principles of Natural Justice, cont’dcont’d

2. 2. The Bias RuleThe Bias Rule: : nemo judex in parte suanemo judex in parte sua – no person may – no person may judge their own casejudge their own case – decision-maker must be – decision-maker must be impartialimpartial

– – decision based on decision based on balanced balanced and and

considered assessment of all information considered assessment of all information

and evidence before judge/adjudicator and evidence before judge/adjudicator

– – without without biasbias, i.e., favouring one party, i.e., favouring one party

over another over another

– – no no conflict of interestconflict of interest

04/20/2304/20/23 1010

““Due Process of Law”Due Process of Law” Fifth Amendment, Fifth Amendment, US ConstitutionUS Constitution

““No person shall be held to answer for a capital, or No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in person be subject for the same offense to be twice put in jeopardy of life or limb jeopardy of life or limb [double jeopardy][double jeopardy]; nor shall be ; nor shall be compelled in any criminal case to be a witness against compelled in any criminal case to be a witness against himself himself [self incrimination][self incrimination], nor be deprived of life, liberty, , nor be deprived of life, liberty, or property, without due process of law or property, without due process of law [due process [due process clause]clause]; nor shall private property be taken for public ; nor shall private property be taken for public use, without just compensation use, without just compensation [takings clause][takings clause].”.”

04/20/2304/20/23 1111

““Due Process of Law”, cont’dDue Process of Law”, cont’d

Two varieties:Two varieties: Procedural Due ProcessProcedural Due Process = Principles of Natural = Principles of Natural

Justice; Fair proceduresJustice; Fair procedures

Substantive Due ProcessSubstantive Due Process =laws, regulations and =laws, regulations and gov’t acts must (1) be related to a gov’t acts must (1) be related to a legitimate legitimate government interestgovernment interest (e.g., crime prevention); and (2) (e.g., crime prevention); and (2) not contain provisions that result in the not contain provisions that result in the unfair or unfair or arbitrary treatmentarbitrary treatment of an individual. of an individual. • Concerns Concerns substancesubstance and and objectives objectives of laws, of laws,

regulations and gov’t acts, not just proceduresregulations and gov’t acts, not just procedures

04/20/2304/20/23 1212

Re B.C. Motor Vehicle Act, 1985Re B.C. Motor Vehicle Act, 1985

Reference caseReference case According to Motor Vehicle ActAccording to Motor Vehicle Act, R.S.B.C. 1979, , R.S.B.C. 1979,

anyone who drives while legally prohibited from anyone who drives while legally prohibited from doing so is guilty of an offence and liable to doing so is guilty of an offence and liable to either fine or imprisonmenteither fine or imprisonment

The The Act “creates an absolute liability offence in Act “creates an absolute liability offence in which guilt is established by proof of driving, which guilt is established by proof of driving, whether or not the defendant knew of the whether or not the defendant knew of the prohibition of suspension…” prohibition of suspension…” (198)(198)

04/20/2304/20/23 1313

QuestionQuestion: “Is s. 94(2) of the : “Is s. 94(2) of the Motor Vehicle ActMotor Vehicle Act, R.S.B.C. , R.S.B.C. 1979, as amended by the 1979, as amended by the Motor Vehicle Amendment Motor Vehicle Amendment ActAct, 1982, consistent with the , 1982, consistent with the Canadian Charter of Canadian Charter of Rights and FreedomsRights and Freedoms?” (198)?” (198)

B.C. Lieutenant Governor referred question to B.C. Court B.C. Lieutenant Governor referred question to B.C. Court of Appealof Appeal

BC Court found s. 94(2) to be of no force or effect as it BC Court found s. 94(2) to be of no force or effect as it was inconsistent with s. 7 of Charterwas inconsistent with s. 7 of Charter

Question now before Supreme Court of Canada (SCC) Question now before Supreme Court of Canada (SCC) on appeal from AG of BCon appeal from AG of BC

04/20/2304/20/23 1414

Judgment per Lamer, J.Judgment per Lamer, J. Case raises “fundamental questions of constitutional Case raises “fundamental questions of constitutional

theory, including the nature and the very legitimacy of theory, including the nature and the very legitimacy of constitutional adjudication under the Charter as well as constitutional adjudication under the Charter as well as the appropriateness of various techniques of the appropriateness of various techniques of constitutional interpretation.” (198)constitutional interpretation.” (198)

“…“…values subject to constitutional adjudication now values subject to constitutional adjudication now pertain to the rights of individuals as well as the pertain to the rights of individuals as well as the distribution of government powers.” (198)distribution of government powers.” (198)

“…“…it is the it is the scopescope of constitutional adjudication which has of constitutional adjudication which has been altered rather than its been altered rather than its naturenature, , at least as regards at least as regards the right to consider the content of legislationthe right to consider the content of legislation..””

04/20/2304/20/23 1515

““In neither case, be it before or after the In neither case, be it before or after the Charter, have the courts been enabled to Charter, have the courts been enabled to decide upon the decide upon the appropriateness of appropriateness of policiespolicies underlying legislative enactments. underlying legislative enactments. In both instances, however, the courts are In both instances, however, the courts are empowered, indeed required, to empowered, indeed required, to measure measure the content of legislation against the the content of legislation against the guarantees of the Constitutionguarantees of the Constitution.” (198).” (198)

04/20/2304/20/23 1616

Concern among critics that, unless Concern among critics that, unless “principles of fundamental justice” read as “principles of fundamental justice” read as equivalent to “principles of natural justice,” equivalent to “principles of natural justice,” then:then: Courts will be led to “question wisdom of Courts will be led to “question wisdom of

enactments”enactments” Courts become judicial “super-legislatures” Courts become judicial “super-legislatures”

(199)(199) Violation of democratic principleViolation of democratic principle

04/20/2304/20/23 1717

AG of Ontario states:AG of Ontario states:

“…“…the judiciary is neither representative the judiciary is neither representative of, nor responsive to, the electorate on of, nor responsive to, the electorate on whose behalf, and under whose authority whose behalf, and under whose authority policies are selected and given effect in policies are selected and given effect in the laws of the land.”the laws of the land.”

04/20/2304/20/23 1818

Lamer’s responseLamer’s response::1.1. Elective representatives chose to entrench Charter, Elective representatives chose to entrench Charter,

thereby extending scope of constitutional/judicial thereby extending scope of constitutional/judicial review (199)review (199)

2.2. Principles of fundamental justice (conceptually) Principles of fundamental justice (conceptually) wider category than principles of natural justicewider category than principles of natural justice

3.3. Courts have historically considered more than Courts have historically considered more than natural justice when assessing statutesnatural justice when assessing statutes

““Since way back in time and even recently the courts Since way back in time and even recently the courts have developed the common law beyond procedural have developed the common law beyond procedural safeguards without interfering with the “merits or safeguards without interfering with the “merits or wisdom” of enactments” (199)wisdom” of enactments” (199)

04/20/2304/20/23 1919

4.4. Therefore, concerns about extending scope of Therefore, concerns about extending scope of fundamental justice beyond natural justice fundamental justice beyond natural justice unfoundedunfounded

ConclusionConclusion: SCC free to consider whether, : SCC free to consider whether, Charter’sCharter’s reference to “principles of reference to “principles of fundamental justice” extends beyond fundamental justice” extends beyond “principles of natural justice”“principles of natural justice”

04/20/2304/20/23 2020

Next QuestionNext Question: Which approach should : Which approach should court take when interpreting Charter’s court take when interpreting Charter’s rights provisions – in particular, Sec. 7?rights provisions – in particular, Sec. 7?

““7. Everyone has the right to life, liberty 7. Everyone has the right to life, liberty and security of the person and the right and security of the person and the right not to be deprived thereof not to be deprived thereof except in except in accordance with the principles of accordance with the principles of fundamental justicefundamental justice.” .”

04/20/2304/20/23 2121

AnswerAnswer: Already provided in : Already provided in Hunter v Hunter v SouthamSoutham & & R v Big M Drug MartR v Big M Drug Mart… …

Purposive InterpretationPurposive Interpretation““The meaning of a right or freedom guaranteed The meaning of a right or freedom guaranteed

by the Charter [is] to be ascertained by an by the Charter [is] to be ascertained by an analysis of the analysis of the purposepurpose of such a guarantee; it of such a guarantee; it [is] to be understood, in other words, in light of [is] to be understood, in other words, in light of the the interests interests it was meant to protect.” (199)it was meant to protect.” (199)

04/20/2304/20/23 2222

What are the “interests” Sec. 7 was meant What are the “interests” Sec. 7 was meant to protect?to protect?

AnswerAnswer: Provided in Sections 8 – 14: Provided in Sections 8 – 14 ““Sections 8 – 14…address specific Sections 8 – 14…address specific

deprivations of the “right” to life, liberty and deprivations of the “right” to life, liberty and security of the person in breach of the security of the person in breach of the principles of fundamental justice” (200)principles of fundamental justice” (200)

04/20/2304/20/23 2323

“…“…they are designed to protect, in a specific they are designed to protect, in a specific manner and setting, the right to life, liberty and manner and setting, the right to life, liberty and security of the person…” (200)security of the person…” (200)

““It would be incongruous to interpret s. 7 more It would be incongruous to interpret s. 7 more narrowly than the rights in ss. 8-14…” (200)narrowly than the rights in ss. 8-14…” (200)

“…“…Clearly, some of those sections embody Clearly, some of those sections embody principles that areprinciples that are beyond what could be beyond what could be characterized as “procedural.” characterized as “procedural.” (200)(200)

04/20/2304/20/23 2424

For exampleFor example,, 8.8. Everyone has the right to be secure Everyone has the right to be secure

against unreasonable search or seizure. against unreasonable search or seizure. 9.9. Everyone has the right not to be Everyone has the right not to be

arbitrarily detained or imprisoned. arbitrarily detained or imprisoned. 12.12. Everyone has the right not to be Everyone has the right not to be

subjected to any cruel or unusual subjected to any cruel or unusual treatment or punishment. treatment or punishment.

04/20/2304/20/23 2525

Sections 8-14, provide “an invaluable key to the Sections 8-14, provide “an invaluable key to the meaning of “principles of fundamental justice.” meaning of “principles of fundamental justice.” (200)(200)

Principles of fundamental justice have been Principles of fundamental justice have been “developed over time as presumptions of the “developed over time as presumptions of the common law”common law”

Others have “found expression in the Others have “found expression in the international conventions of human rights”international conventions of human rights”

““All have been recognized as essential All have been recognized as essential elements of a system for the elements of a system for the administration of justice which is founded administration of justice which is founded upon a belief in “the dignity and worth of upon a belief in “the dignity and worth of the human person.” (200) the human person.” (200)

““The principles of fundamental justice are The principles of fundamental justice are to be found in the basic tenets of our legal to be found in the basic tenets of our legal system.”system.” (200) (200)

04/20/2304/20/23 2626

04/20/2304/20/23 2727

Original Intent Original Intent

Clearly open for framers to have used the Clearly open for framers to have used the phrase “principles of natural justice” instead of phrase “principles of natural justice” instead of “principles of fundamental justice”“principles of fundamental justice”

Appeal to “extrinsic evidence” of framers’ intent Appeal to “extrinsic evidence” of framers’ intent (Committee reports, Hansard, etc.) (Committee reports, Hansard, etc.) inconclusiveinconclusive

““nearly impossible of proof”nearly impossible of proof” (201) (201)

““Indeterminate nature of the data” (202)Indeterminate nature of the data” (202)

04/20/2304/20/23 2828

Original Intent, cont’dOriginal Intent, cont’d

Court also notes what it considers an Court also notes what it considers an undesirable consequence of heavy undesirable consequence of heavy reliance on intentions of framers:reliance on intentions of framers:

“…“…the rights, freedoms and values the rights, freedoms and values embodied in the Charter in effect become embodied in the Charter in effect become frozen in time frozen in time to the moment of adoption to the moment of adoption with little or no possibility of growth, with little or no possibility of growth, development and adjustment to changing development and adjustment to changing social needs.” (202)social needs.” (202) Dead hand of the pastDead hand of the past

04/20/2304/20/23 2929

Original Intent, cont’dOriginal Intent, cont’d

““If the newly planted If the newly planted “living tree” “living tree” which is the which is the Charter is to have the possibility of growth and Charter is to have the possibility of growth and adjustment over time, care must be taken to adjustment over time, care must be taken to ensure that historical materials…do not stunt its ensure that historical materials…do not stunt its growth.” (202)growth.” (202)

““Consequently, [s. 7’s] words cannot be given any Consequently, [s. 7’s] words cannot be given any exhaustive content or simple enumerative exhaustive content or simple enumerative definition, but will definition, but will take on concrete meanings as take on concrete meanings as the courts address alleged violations of s. 7the courts address alleged violations of s. 7” ” (202)(202)

04/20/2304/20/23 3030

ConclusionConclusion: Reference to “principles of : Reference to “principles of fundamental justice” in Sec. 7 extends well fundamental justice” in Sec. 7 extends well beyond procedural/natural justice.beyond procedural/natural justice.

New QuestionsNew Questions: :

1. Do absolute liability offences violate 1. Do absolute liability offences violate right to life, liberty and security of the right to life, liberty and security of the person?person?

AnswerAnswer: Yes, imprisonment restricts liberty: Yes, imprisonment restricts liberty

04/20/2304/20/23 3131

2. Are such restrictions of liberty 2. Are such restrictions of liberty consistent with the principles of consistent with the principles of fundamental justice?fundamental justice?

AnswerAnswer: No. As the court ruled in : No. As the court ruled in R. v City of R. v City of Sault Ste. MarieSault Ste. Marie,,

““absolute liability in penal law offends the absolute liability in penal law offends the principles of fundamental justice” (202)principles of fundamental justice” (202)

““there is a generally held revulsion against there is a generally held revulsion against punishment of the morally innocent.” (202)punishment of the morally innocent.” (202)

An Aside: An Aside: Penal v Criminal LawPenal v Criminal Law

Note SCC’s reference to ‘penal law’Note SCC’s reference to ‘penal law’ Traditionally: Criminal law v Civil LawTraditionally: Criminal law v Civil Law Criminal law: State v Defendant; Criminal law: State v Defendant;

punishmentpunishment Civil Law: Private law; Plaintiff v Civil Law: Private law; Plaintiff v

Defendant; Defendant; compensation; damagescompensation; damages ““Penal law” in Canada: Criminal & Penal law” in Canada: Criminal & NonNon--

criminal laws that can result in criminal laws that can result in punishmentpunishment

04/20/2304/20/23 3232

Why important to distinguish Criminal v Why important to distinguish Criminal v Penal?Penal?

Criminal: Criminal: FederalFederal jurisdiction jurisdiction BUTBUT: Some : Some punishablepunishable offences are offences are

created by created by Provincial Provincial legislatureslegislatures If considered criminal, then “If considered criminal, then “ultra viresultra vires”” BC Motor Vehicle Act BC Motor Vehicle Act penal but not penal but not

criminalcriminal

04/20/2304/20/23 3333

04/20/2304/20/23 3434

Reasonable Limitations Clause: Reasonable Limitations Clause: Section 1Section 1

Next QuestionNext Question: Is this “fundamentally unjust” : Is this “fundamentally unjust” violation of the right to liberty, nevertheless one violation of the right to liberty, nevertheless one of those: of those:

““reasonable limits prescribed by law as can be reasonable limits prescribed by law as can be demonstrably justified in a free and democratic demonstrably justified in a free and democratic society?” (Sec. 1)society?” (Sec. 1)

AnswerAnswer: No: No

Administrative expediency an inadequate reason of Administrative expediency an inadequate reason of public interestpublic interest

Sec 1 “may” justify violation “only in cases arising out Sec 1 “may” justify violation “only in cases arising out of exceptional conditions, such as natural disasters, of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.” (203)the outbreak of war, epidemics, and the like.” (203)

04/20/2304/20/23 3535

04/20/2304/20/23 3636

Less invasive means of “ridding the roads of Less invasive means of “ridding the roads of British Columbia of bad drivers” available British Columbia of bad drivers” available (203)(203)

Strict liability offenceStrict liability offence, “open to the defence of , “open to the defence of due diligence” (203)due diligence” (203)

((N.B.N.B. Absolute & Strict liability often identified Absolute & Strict liability often identified with one another; SCC distinguishes the two)with one another; SCC distinguishes the two)

04/20/2304/20/23 3737

Concurring Judgment of Concurring Judgment of Wilson, J.Wilson, J.

Concurs that BC Concurs that BC Motor Vehicle Act Motor Vehicle Act violates Sec. 7violates Sec. 7

Act offends principles of fundamental Act offends principles of fundamental justicejustice

Absolute liability offenses per se do not Absolute liability offenses per se do not offend principles of fundamental justiceoffend principles of fundamental justice

04/20/2304/20/23 3838

BUT: BUT: Mandatory imprisonmentMandatory imprisonment for absolute for absolute liability offenses violates principles of liability offenses violates principles of fundamental justicefundamental justice

““While the legislature may as a matter of While the legislature may as a matter of government policy make an [absolute liability] government policy make an [absolute liability] offence, and we cannot question its wisdom in offence, and we cannot question its wisdom in this regard, this regard, the question is whether it can make the question is whether it can make itit mandatory for the courts to deprive a person mandatory for the courts to deprive a person convicted of it of his liberty without violating s. convicted of it of his liberty without violating s. 7.7.” (205)” (205)

04/20/2304/20/23 3939

“…“…the conscience of the court would be shocked the conscience of the court would be shocked and the and the administration of justice brought into administration of justice brought into disrepute disrepute by such an unreasonable and by such an unreasonable and extravagant penalty. It is totally disproportionate extravagant penalty. It is totally disproportionate to the offence and quite incompatible with the to the offence and quite incompatible with the objective[s] of a penal system…” (205)objective[s] of a penal system…” (205)

“…“…such a sanction offends the principles of such a sanction offends the principles of fundamental justice embodied in our penal fundamental justice embodied in our penal system.” (205)system.” (205)

04/20/2304/20/23 4040

Exclusionary RulesExclusionary Rules Re: “administration of justice” being “brought into disrepute”, c.f. Re: “administration of justice” being “brought into disrepute”, c.f.

CharterCharter

24.24. (1) Anyone whose rights or freedoms, as guaranteed by this (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the excluded if it is established that, having regard to all the circumstances, circumstances, the admission of it in the proceedings would bring the admission of it in the proceedings would bring the administration of justice into disreputethe administration of justice into disrepute. .

04/20/2304/20/23 4141

More robust versions available, e.g., More robust versions available, e.g., US rule: US rule: Evidence illegally seized by law Evidence illegally seized by law

enforcement officers in violation of a suspect's enforcement officers in violation of a suspect's right to be free from unreasonableright to be free from unreasonable searches and searches and seizures seizures cannot be used against the suspect in cannot be used against the suspect in a criminal prosecution.a criminal prosecution. "fruit of the poisonous tree" "fruit of the poisonous tree"

Traditionally, under common law absence Traditionally, under common law absence of exclusionary ruleof exclusionary rule

If evidence is “probative” then may be used If evidence is “probative” then may be used – even though police authorities in violation – even though police authorities in violation of their dutyof their duty

Probative = tending to prove point at issue, Probative = tending to prove point at issue, e.g. defendant committed actus reuse.g. defendant committed actus reus

04/20/2304/20/23 4242