Consti Notes - Ch 47

8/8/2019 Consti Notes - Ch 47

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16 Haig v Canada (1993)- A Canadian citizen who had slipped through the cracks

of the residency requirements found himself unable to vote in a federalreferendum to approve amendments know as the Charlottetown accord. Beingunable to rely on s3 he argued that the failure of the federal parliament to makeprovision for him to vote was a breach of freedom of expression, guaranteed by

s2(b) of the Charter. The SCC had agreed that the casting of the ballot in areferendum was a form of expression but went on to hold that s2(b) does notimpose on the federal/provincial governments a positive duty to consult citizensby referendum. No right to vote!Access to Government 43.20Native Women’s Assn of Canada v Canada (1994 ) argued that the Government of Canada had denied their right to freedom of expression by providing funding/consulting with to other aboriginal groups but not to the NWAC over theCharlottetown accord. SCC held that: according to the principle in the Haig Case -“generally the government is under no obligation to fund or provide a specificplatform of expression to an individual or group.”

Baier v Alberta (2007 )- question of whether Alberta could enact a law thatdisqualified teachers and other employees of school boards from serving astrustees of school boards. The SCC held- upheld the law. The law did not preventthe teachers from expressing opinions on any issues relating to education ( oranything else) its purpose was to prevent them to be serving on school boards.-------------------------------------------------------------------------------------------------------------------------------------------------Life Liberty and Security of PersonConstitution Act, 1982, s.7 Hogg, chapter 47, “Fundamental Justice”Distribution of powers over legal rights 47.1

The term legal right does not have a precise legal or popular meaning.

“Legal rights” depends upon the characterization of each law. In characterizinga law, the laws impact on civil liberties is generally irrelevant or at least of onlysubordinate importance.

s91(27) Consti Act 1867 - are the federal powers in relation to criminal law orcriminal procedure. (various stages of arrest, trial, acquittal or conviction andsentence are federal)

s92(14) Consti Act 1867 - giver provincial authority over the administration of justice. This includes the constitution of criminal and civil courts, civil procedure,and extends to some aspects of the investigation and prosecution of crime.Constitution Act, 1982, s.7 – protects the right of “everyone” to life, liberty andsecurity of the person” and imposes the requirement that any deprivation be “in

accordance with the principles of fundamental justice” one right vs. two right interpretation - Hogg argues that the best view of s 7 is

not it confers the two rights interpretation because it gives s7 a extraordinarilybroad sweep. A better view is that s 7 only confers one right. The right not to bedeprived of life, liberty or security of the person except in accordance with theprinciples of justice.

Two right version - 1. a right to “life, liberty and security of the person” that isunqualified except by s1 of the Charter and 2. a right not to be deprived of life,liberty and security of person except in accordance with the principles of



fundamental justice. This two rights interpretation is supported by an Englishversion but not by the French grammatical version of this section.

The Canadian Bill of Rights s1(a)- guarantees : the right of the individual to life,liberty and security of person and enjoyment of property, and the right not to bedeprived thereof except by due process of law...

The Canadian Bill of Rights s2(e)- provides that no law of Canada is to be

construed or applied so as to: deprive a person of the right to a fair hearing inaccordance with the principles of fundamental justice for the determination of hisrights and obligations... s. 7 of the Charter- can be seen as an amalgam of thesetwo provisions but a narrow scope than either s1(a) which extends to the“enjoyment of property” or s2(e) which extends to any determination of “rightsand enjoyment”

s7 does not include property and does not include the determination of rightsand obligations respecting economic interests.

17Application of s 1 - 47.3

Could a law that did not conform to the principles of fundamental justice beupheld under s1? Could a violation of fundamental justice ever be reasonable limit that can be

demonstrably justified in a free and democratic society? Wilson J of the SCC –expressed the view several times that the answer to this

view would be no: a violation of fundamental justice could never be justified unders 1.Who can Benefit of s 7 - 47.4a) Corporations

s7 is applicable to “everyone” a word that is normally apt to include acorporation as well as an individual.

Irwin Toy v Que [1989] - SCC held that the context of s7 “ everyone” does notinclude a corporation because an artificial person (a corporation) is incapable of possessing “life, liberty or security of person” because these are attributes of anatural person.b) Immigrants

Singh v Minster of Employment and Immigration (1995) “everyone” includesimmigrants to Canada. Wilson J said that s7 right could be asserted by “everyhuman being who is physically present in Canada and by virtue of such presenceamenable to Canadian law.

This means that immigrant who claimed refugee status was entitled to ahearing before an official or tribunal to determine their case. Arguing that this

would be too expensive or a strain on the system was rejected by the court.c) foetus R v Morgentaler (No 2) “everyone” in s 7 does not include a foetus and so a

foetus is not entitled to a right to life. The SCC had in fact used s7 to strike downrestrictions on abortion because it infringed the security of the person of themother.Burden of s7- 47.5

section 7 like other Charter provisions applies only to “governmental action” asdefined in s32 Charter.





correctional service to transfer a prisoner to a min. security prison to a mediumsecurity prison. Court followed Cunningham and held the decision to transfer theprisoner was a deprivation of his “residual liberty” so s7 applied. The court heldthe failure of the Correctional Service to fulfill a statutory obligation to provideinformation as to the reasons of the transfer was not important. ( Stinchcome rulesof disclosure did not apply outside criminal proceedings where the innocence of

the accused was at stake.) It did make it unlawful so the prisoner was sent back tomin security. Blencoe v BC (2000)- Bastarache J- “asserted that liberty in s 7 is no longer

restricted to mere freedom from physical restraint”; it applies whenever a lawprevents a person from making “fundamental personal choices.”

Mr Blencoe’s liberty had been impaired because of the unreasonable delay hewaited for the BC Human rights Commission took in disposing sexual harassmentcharges against him. Court held:”in these circumstances, the state has notprevented [Mr Blencoe] from making any fundamental personal choices.”b) Economic Liberty

The framers of Canada’s Charter of Rights had deliberately omitted any

reference to property in s7 and they also omitted any guarantee of the obligationof contracts. The replacement of “due process” with “fundamental justice” wasintended to banish Lochner from Canada.

Re ss 193 and 195.1 CC - s7 –liberty must not be interpreted to includeproperty, not including freedom of contract and not including economic liberty.

Gosslin v Que per Larmer J- “ the restrictions on liberty and security of theperson that s7 is concerned with are those that occur as a result of an individual’sinteraction with the justice system and administration. “ –

because s7 leads of a group of rights s7-14 which deals with the criminal justicesystem-search, seizure, detention arrest trial, testimony, and imprisonment itseems that Larmer J’s line of reasoning excludes economic liberty.

“Liberty” does not include: R v Edwards Books and Art [1986]- liberty does not include the right to dobusiness, by selling goods on Sunday.

Re ss 193 and 195.1- right to work? the regulation of trades and professionalsshould be regarded as restrictions on economic liberty that are outside the scopeof s7.c) political liberty

liberty does not include freedom of conscience of religion, freedom of expression, freedom of assembly, freedom of association, the right to vote and bea candidate for election or the right to travel. These rights are all guaranteedelsewhere in the Charter of Rights and should be excluded by s7.

“Security of Person” 47.8 s 7 protects “life , liberty and security of person”? What is included in “securityof the person”

Canadian Foundation for Children, Youth and the Law v Canada (2004)-challenge on a defence in the CC which provides that a teacher or parent can use“reasonable” force “by way of correction” against children in their care.

This exposed children to what amounted to assault. Court held:- had nodifficulty in finding that the provision adversely affected the security of person of the children to who it applied ( The court upheld the provision on the ground that



there was no breach of the principles of fundamental justice. R v Morgentaler (no.2)- SCC held that CC restrictions on abortion which

required that an abortion be approved by a therapeutic abortion committee of anapproved hospital were unconstitutional. Evidence showed that hospitals wouldnot set up the required committees and caused delays in treatments whichincreased the risk of health to the mother. Held- The risk of health that was

caused by the law was deprivation of security of the person.19

Chaoulli v Quebec (2005) SCC held that excessive waiting times in the publichealth care system of Quebec caused unnecessary pain and stress to thosewaiting surgery and other medical procedures. This was a breach of the right tosecurity of person (as well as right to life, since the risk of death was sometimesincreased by prolonged delays.Facts- Quebec law forbade the purchase of private health insurance. The law wasdesigned to make the public health system exclusive. All 7 judges wereunanimous that the law caused a breach of security to person, there was an even

3-3 split on whether the law was a breach of the principles of fundamental justiceunder s7. The one judge confined her decision and held it was a breach to theQuebec Charter of rights which does not use the term “fundamental justice”. Thisbecame the majority position. Held- The Quebec law was struck down but doesnot go beyond this province. Bans on the purchase of private insurance or otherimpediments to access to private health care exists in other provinces andterritories, but it will take another case to determine whether they are a breach tothe Charter.Does security go beyond health and safety? Yes.

R v Morgentaler (no.2)- 3 out of 5 judges were willing to find deprivation of security of the person, not only a risk to the woman’s health created by the law

related delays, but also in the loss of her control over the termination of thepregnancy. This means that security of person would include some requirement of personal autonomy at least with respect to medical treatment.

confirmed in Rodriguez v BC (1993)- a person who was terminally ill challengedthe constitutionality of the CC offence of assisting a person to commit suicide. Itwas argued that that the law deprived a disabled person of the ability to commitsuicide which was not an offence. 8 of 9 judges of the SCC held that it was adeprivation of security of the person under s7. However the plaintiff was notsuccessful because 5 of 9 judges held the law did not offend the principles of

justice. New Brunswick v G.(J) (1999)- the SCC held an application by the state to

remove children from a parent and place them under the wardship of the stateaffected the security of the person of the parent. Security of the person wasaffected because the government action would constitute “a serious interferencewith the psychological integrity of the parent.” s7 was applied and the removalproceedings had to be conducted in accordance with the principles of fundamental justice.

Winnipeg Child and Family Services v KLW (2000)- the SCC held that awarrantless apprehension of a child deemed to be “in need of protection” was abreach of the parents security of the person, although a majority of the Court held



the principles of fundamental justice had not been breached. A post apprehensionhearing satisfied the principle of fundamental justice.

Blencoe v BC (2000) – SCC held - that state induced psychological stress wouldbe a breach of security of the person, but decided that the Commission’s delaysdid not have a sufficiently severe impact on the applicant psychological state toqualify the breach. Bastarache J- said the decision should not be construed as a

ruling that delays in Human rights proceedings can never trigger an individual’ss7 rights . Gosselin v Quebec (2002)- it was argued that s7 imposed on government a

positive obligation to provide adequate welfare benefits to those who werewithout other sources of income. Her challenge was on age discrimination s 15and on s7 and she failed on both grounds. Court held s.7 has not been extendedto economic rights nor has it been interpreted as imposing positive obligations onthe state to ensure that each person, enjoyed life, liberty or security of theperson.Property

s7 protects “life, liberty and security of person” The omission of property from

s7 was a striking and deliberate departure from the constitutional texts thatprovided the models for s7. The omission of property rights from s7 greatly reduces its scope. It means that

s7 affords no guarantee of compensation or even of a fair procedure for the takingof property by government.

It means that s7 affords no guarantee of fair treatment by courts, tribunals orofficials with power over purely economic interests of individuals or corporations.

Omission of property- from s7 also ensures a continuing role for the CanadianBill of Rights which continues to apply to federal(not provincial laws)

McBain v Lederman (1985)- is another example of the broad reach s2(e). Issue-whether the federal Human Rights Code violated fundamental justice in the

provisions establishing an adjudicatory tribunal. It was argued that this mode of appointment gave rise to a reasonable apprehension of bias because thecommission was also in effect the prosecutor of the complaint. The Court relied ons2(e) because the tribunal had the power to make determination of therespondents rights and obligations.

Civil litigation before courts/tribunals is usually about money or property orother purely economic interests. s7- does not apply to this type of litigation butCanadian Bill of Rights s2(e) does apply so long as the dispute is governed byfederal law.

20 Authorson v Canada (2003)- Veteran challenged a provision in the federalDepartment of Veterans Affairs Act that barred any claim to interest on moneysheld by the Department on behalf of disabled veterans. The plaintiff becamecompetent and the dept. paid him money that was owed to him which hadaccumulated over a 40 year period. No interest was paid on it. Plaintiff sued forinterest. plaintiff invoked s1(a) and s2(e) of the Canadian Bill of Rights-

The SCC denied relief under both provisions . s1(a)- plaintiff argued that he hadbeen deprived the “enjoyment of property” without “due process” because



parliament had take his right away to a fair hearing. Court refused to impose anyadditional procedural obligations on Parliament “ the only procedure due anycitizen of Canada is that proposed legislation receive three readings in the Senateand House of Commons and that it received a Royal Assent Court also refused tointerpret s1(a) as imposing a substantive obligation to provide compensation forexpropriated property. 2(e) impose its right to a “fair hearing”

Fundamental justice 47.10a) procedure and substance A deprivation of life, liberty, or security of the person is a breach of s7 of the

Charter only if the deprivation is not in accordance with the principles of fundamental justice.

the phrase appears in s2(e) included with fair hearing giving it a meaningsimilar to natural justice.

The rules of natural justice are rules of procedure only: they require a hearing,unbiased adjudication and fair procedure. Due process was omitted from s7 inorder to make it did not give rise to a Canadian doctrine of substantive dueprocess.

BC Motor Vehicle Reference (1985)- the SCC held that fundamental justice didindeed cover substantive as well as procedure justice. Larmer J gave threereasons for extending fundamental justice beyond procedure. 1. the first reason isthat the words “fundamental justice” are literally broader in scope than otherformulations that could have been used such as natural justice. 2. The secondreason is the expansions of the concept of fundamental justice has the effect of expanding the protection of life, liberty and security of person. 3. The third reasonfor extending fundamental justice beyond procedure into substance is much moredubious held that s7 is a kind of residuary clause for all legal rights. s8-14 aremerely “illustrative” of deprivations of fundamental justice that could be easily becaught by s7 since s8-14 go beyond merely procedural guarantees it follows that

s7 also must go beyond a merely procedural guarantee. 2 problems with the “residual theory” of s7- a) Wilson J pointed out that ss8-14of the Charter are not in fact drafted to be illustrations of s7 but are designed tostand alone. b) second difficulty is the fact s8-14 are not confined to life libertyand security of person as 7 is. Thus s8, protects property from unreasonablesearch or seizure , is not premised on a denial of life, liberty or security of thepersons; this is why s8 protections for “any person charged with an offence”b) definition of fundamental justice

BC Motor Vehicle Reference – only definition of fundamental justice. Larmer Jassertion that the “ principles of fundamental justice are to be found in the basictenets of the legal system”

Larmer J- “those words (fundamental justice) cannot be given any exhaustivecontent or simple enumerative definition but will take on concrete meaning as thecourts address allege violations of s7”

there is very little agreement on what the “basic tenants of the legal system”example- Thompson Newspapers v Canada (1990) – five judges gave five differentopinions as to the applicable basic tenets of the legal system.

Cunningham v Canada (1993) - SCC had to decide whether it was breach of theprinciples of justice occurred. McLachin J made no reference to the basic tenets of the legal system. “ The question is whether, from a substantive point of view, the



change in the law strikes the right balance between the accused interests and theinterests in society”

In other words when a law deprives an individual of life, liberty or security of the person, the courts must determine whether Parliament or Legislature struck“the right balance” between the competing values that the legislators had soughtto reconcile.

Rodriquez v BC (1993)- Sponkia J asserted that the principles of fundamental justice must be “fundamental” in the sense that they would have generalacceptance among reasonable people. McLachlin J, L’Heureux –Dube J and thesubstantial agreement of Cory J-in their view a law would violate fundamental

justice if the law was “arbitray” or “unfair” R v Malmo-Levine (2003) marihuana- The court denied that “striking the right

balance” between individual and societal interests was a requirement of afundamental justice. The court created 3 requirements for a rule to qualify as abasic tenet of legal system and therefore as a principle of fundamental justice .

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First- the rule must be a “legal principle”. Second- there must be a “significantsocietal consensus that is fundemenal to the way in which the legal system oughtto fairly operate.” Third- the rule must be capable of being “identified withsufficient precision to yield a manageable standard.

Harm Principle- The SCC held that the harm principle did not satisfy the 3requirements. Therefore Parliament was open to impose a sentence of imprisonment for crimes that did not involve harm to others. (cannibalism,bestiality duelling and consensual incest.

R v Parker (2000)- marihuana for medical use Could possession be prohibitedfor those who had medical use for the drug? –Ontario Court of Appeal answeredno. The possession of marihuana could not be prohibited (with imprisonment as a

possible penalty) if the prohibition did not include an exception for those withmedical needs. Court suspended for a year and the federal governmentresponded with Marihunana Medical Access Regulations.

Hitzig v Canada(2003)- challenge on medical marihuana regulations- OntarioCourt of Appeal held they were unconstitutional because it did not provide a legalsource. “To require those persons to purchase the drug from criminals was“inconsistent with the fundamental principle that the state must obey andpromote compliance with the law” The court struck down these new regulations.

Canadian Foundation for Children, Youth and the Law v Canada (2004)-challenge on a defence for an assault charge for teachers and parents. It wasargued that the best interests of the child was a principle of fundamental justice

and that the exposure of children to corrective force was not in their bestinterests. The SCC had accepted the 3 requirements of fundamental justice thatwas stipulated in Malmo-Levine.“Residuary Theory”- the effect of the residuary theory is that the precise languageof s8 to 14 becomes relatively unimportant.• Thomson Newspapers v Canada (1990)- SCC held that-“the principles of fundamental justice in s7 could still contain some “residual” elements of the rightagainst self-incrimination. The scope of the right was not taken from the preciselanguage of s11 and 13 but from the vague language of s7 which refers to the



principles of fundamental justice. 5 different theories as to what additionalcontents s7 7 added to s11(c) and 13I. a right to remain silentII. a right not to give an incriminating answerIII. a right to have all evidence derived from the compelled testimony excludedfrom the subsequent proceedings

IV. a right to have only that derivative evidence that could not have beendiscovered apart from the compelled testimony excluded from subsequentproceedingsV. no right additional to s11(c ) and 13.all judges s/he were articulating a principle or tenant of the justice system .Absolute and Strict Liability 47.11a) categories of offencesR v City of Sault Ste Marie (1978) Dickson divided offences into 3 categories.1) offences of absolute liability-which the offence consists of doing the prohibitedact. There is no requirement of fault, either mens rea or negligence. They couldconvicted even if they had no intention of breaking the law and also exercised

reasonable care to avoid doing so.2)offences of strict liability- the offence consists simply of doing the prohibited acthowever, it is a defence if the defendant proves to the civil standard of thebalance of probabilities that he or she exercised reasonable care ( due diligence)to avoid committing the crime. There is a fault requirement of negligence becausethe accused is liable only if he or she cannot prove the exercise of reasonablecare.3) offences of mens rea- in which the offence consists not only of doing theprohibited act, but of doing so with the intent (mens rea) of intending to break thelaw ( or being reckless as to whether or not the law would be broken)b) absolute liability offence

This came under the BC Motor Vehicle Reference (1985)-driving without license –the subsection stated the offence was an “absolute liability offence for which guiltis establish by proof of driving whether or not the defendant knew of theprohibition or suspension . SCC held -that absolute was a denial of the principles of fundamental justice-since it carried a short term of imprisonment and a convictionwould mean a deprivation of “liberty”. The offence was declared to be in violationof s7 and of no force of effect.

R v Hess(1990)- another absolute liability case which challenged the statutoryrape provision in the CC. It made it an offence for a male person to haveintercourse with a female person under the age of 14 “whether or not he believesthat she is 14 years of age or more” This offence was absolute liability since it

was no defence for the accused to show that he reasonably believed his act to

22be innocent. The offence carried a penalty of imprisonment. SCC heldthat thepenalty of imprisonment was a breach of fundamental justice in violation of s7.the result was not to strike down the offence entirely.

R v Pontes (1995)- the SCC had to classify an amended version of the offencein the BC Motor Vehicles Act of driving while prohibited fro driving. The CC stated-



“automatically without notice” prohibited from driving for 12 months. Cory J- heldthat the quoted phrase meant that a duly diligent driver could be unaware of theprohibition and could innocently commit the offence of driving while prohibited.However, the amended act stated “no person is liable to imprisonment for anabsolute liability offence” Therefore no penalty of imprisonment for the offence of driving with prohibited-therefore no breach of liberty under s7.

Pontes- makes clear that s7 has no application to large fines because liberty isnot affected. As long as imprisonment is not a penalty Parliament can still makeoffences of absolute liability.

For regulatory offences that are punishable by fine it is an issue of statutoryinterpretation not constitutional law as to whether the offences of absoluteliability or of strict liability. However because of the injustice of punishing a personwho has acted without fault and has taken reasonable precautions to comply withthe law the presumption is of strict liability.

Levis v Tetreault – if the offence is a regulatory one, strict liability complies withs7 of the Charter. Another option is to use the power of severance ( or reading in)to convert the offence into one of mens rea. What saved the offence is R v Hess is

the power to use severance to eliminate the penalty of imprisonment.c) Strict Liability Offences- R v Wholesale Travel Group (1991)- in this case the accused corporation was

charged with the offence of false or misleading advertising under the CompetitionAct. The act made it clear that there was no requirement of mens rea, the onlydefence was one of due diligence (reasonable care) and the burden of provingdue diligence rested on the accused.

Accused relied on BC Motor Vehicle Reference Act to argue a violation of fundamental justice and the crown agreed that a fault element for an offencecarrying a punishment of jail was needed by was satisfied with the defence of duediligence. SCC heldthat the crime was not a “true crime” but merely a regulatory

offence or public welfare offence. Characteristics of a “true crime” was that it was“inherently wrongful conduct” A regulatory offence was designed to establishstandards of conduct for activity that could be harmful to others.Fundamental Justice is satisfied if there is a defence of reasonable care ( duediligence) and the burden of proving reasonable care ( to the civil standard) maybe cast on the defendant.

R V Hundel (1993)- the accused had driven his truck through a red light andcollided with another car killing the other driver. He argued that he did not havetime to safely stop through the amber light so he felt it was the right course of action. Court sited – Wholesale Travel and stated that “in appropriate context,negligence can be an acceptable basis of liability which meets the fault

requirement of s7 of the Charter. All that the crown needed to establish was anobjective departure by the accused from the appropriate standard of care. Thefact that the accused believed that he was driving safely was irrelevant.

R v Nova Scotia Pharmaceutical Society (1992)- the SCC rejected a challenge tothe Competition Act offence of conspiring to lessen competition unduly. The Actexpressly eliminated the element of mens rea by providing that it was notnecessary for the prosecution to prove that the accused intended that his actionswould have the effect of lessening completion unduly. This did not violate s7.“Ought to have know” was enough to satisfy the minimum requirement for s7.



R v Finlay (1993)- the SCC reviewed the CC offence of storing a firearm “in acareless manner”. The max penalty was 2 years. Was negligence a sufficient faultrequirement for the CC. Larmer CJ repeated the dictum in Hundal that- “ in theappropriate context negligence can be an acceptable basis of liability whichmeets the fault requirement of s7.Murder 47.12

murder used to include the felony murder rule. There was no requirement thatthat the accused intended to cause death or that he knew that his actions werelikely to cause the death or even that he ought to have know that his actions werelikely to cause the death. All that was needed as proof was the felony, the use orcarrying of the weapon and the causing death.

R v Valliancourt (1987)- charge with murder as the result of a poolroomrobbery. The accused knew the accomplice was carrying a gun but did not foreseethat a death was likely to occur (subjective) and there was reasonable doubt thathe “ought to have know” (objective standard). SCC held that the felony-murderrule was a violation of fundamental justice under s7 of the Charter.

R v Martineau (1990)- the SCC held that a high level of mens rea (subjective

forseeability) that was required by s7 This was ruling brough challenge to s21(2) CC which defines a “party tooffence” which uses the phrase “knew or ought to have known ”

R v Logan ( 1990)- two accused robed a store with a gun in which a thirdperson shot and injured the clerk. The two were convicted as parties under s21(2)to the crime of attempted murder. SCC held- since the attempted murder was oneof those few offences for which s7 stipulated a requirement of subjective mensrea and because the “social stigma associated with the conviction”

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Offences for which subjective mens rea is constitutionally required:I. murder( Martineau)II. attempted murder ( Logan)III. war crimes and crimes against humanity committed outside Canada( R v Finta[1994])Hogg disagrees with the use of “social stigma associated with the conviction”

radical constitutional consequences flow from such a vague, unproved andunprovable notion as social stigma. He believes that that certain offences carryconstitutional requirements of subjective mens rea then those offences should beidentified, not by reference by namesUnforeseen Consequences 47.13

R v De Sousa(1992)- the accused through a bottle in a fight and injured aninnocent bystander. The accused neither intended nor foresaw the injury. Whatwas the mental element for causing bodily harm? Sopinka J- held that there was“no constitutional requirement that intention, either on an objective or subjectivebasis extended to the consequences of unlawful acts in general”

Sopinka J in DeSousa distinguished the line of cases involving murder andattempted murder on the basis that murder and attempted murder were among“those few offences which due to their stigma and penalty require fault based onsubjective standard”



“it is acceptable to distinguish between criminal responsibility for equallyreprehensible acts on the basis of the harm that is actually caused.”

R v Creighton (1993)- SCC had to determine what was the mental element of the offence of manslaughter by unlawful act. The court upheld theconstitutionality of the CC requirement of objective foresight of bodily harm as themental element of unlawful act manslaughter. Foresight of the death was not

required, despite the fact that the maximum penalty for manslaughter wasimprisonment for life.Involuntary Acts 47.14a) automatism

A tenant of the legal system should not be convicted of a criminal offence of anact that is not voluntary. The courts have become persuaded that a person canengage in very complex behaviour while in a state of “automatism” and thatautomatic behaviour cannot be an offence because it is involuntary.

R v Parks (1992)- accused drove 23 km and killed his mother in-law and injuredhis father in law.. He was charged with murder and attempted murder. Hisdefence of sleep walking which was supported by 5 psychiatric exports. The also

stated that he was not of a disease of the mind. R v Stone (1999)- accused after taunting by his wife, stabbed her to death. heargued he was provoke which suffered a “psychological blow” causing him tocommit the act. He was found guilty of manslaughter instead of murder. Heappealed that he should have been acquitted. SCC held- this defence was notavailable because a “normal” person would not have shift into a state of automatism as the result of the wife’s taunts.b) duress

The CC by s17 makes duress an excuse for the commission of an offence: anoffence committed “under compulsions” is excused from criminal liability.However, s17 stipulates that the compulsion must take the form of “threats of

immediate death or bodily harm from a person who is present when the offence iscommitted . R v Ruzic (2001)- accused arrived at airport with heroin strapped to body. She

was charge with false passport and drugs. She pleaded guilty to both crimes butclaimed that she was forced to commit the offences because her mother wasgoing to be harmed by a man in Belgrade. This was believed by the jury whoacquitted her. The Crown appealed on the ground of limiting conditions of s17were not satisfied. Corwn argued that- since the offences occurred in Toronto thethreats were no “immediate” and he was not “present when the offences werecommitted” The SCC affirmed the acquittal of the accused s7 of the Charter wasapplicable because the offences carried the penalty of imprisonment Lebel J- held

it would be a breach of the principles of fundamental of justice to convict a personof a crime when that person had not acted voluntarily.c) Intoxication

R v Daviault (1994)- the SCC held that s7 requires that extreme intoxication bea defence to a criminal charge. If it requires specific intent extreme intoxicationmay negative the additional intent and lead to the acquittal of the accused butthe accused would normally escape criminal responsibility because the accusedcould still be convicted of a lesser offence (simple assault).



24 SCC heldthat s7 and 11(d)- of the Charter were offended by the rule that self

induced intoxication was no defence to a criminal charge. Cory J- held that unders7 the requirement of mens rea for a crime of general intent could only be theintention to commit the prohibited act. The accused must establish the defence of

extreme intoxication on the balance of probabilities. By reversing the usual onusof proof in a criminal case, Cory J created a new rule R v MacAskill (1931)- that the defence of intoxication required evidence that

the accused was so intoxicated that he was incapable of forming the requiredspecific intent.

R v Robinson (1996)- the SCC turned its attention to offences of specific intent. This was a murder case which required specific intent. The accused had beendrinking and he hit the head of the victim with a stone. SCC Held- If adrunkenness raised a reasonable doubt as to whether the accused in factpossessed the requisite specific intent, the accused was entitled to be acquittedeven if there was no doubt that the accused possessed the capacity to form a

requisite intent.Overbroad Laws 47.15 R v Heywood (1994) – SCC established a new doctrine of “overbreadth” which

applies to a law which is broader than necessary to accomplish its purpose.Overbreadth is a breach of the principles of fundamental justice and therefore abasis for finding of unconstitutionality in a law that affects life, liberty or securityof persons. In this case anyone previously convicted of sexual assault was notallowed to be “found loitering in or near a school ground, playground public parkor bathing area. “ In this case the law was overboard because:1. its geographic scope was too wide, because parks and bathing areas includeplaces where children were not likely to be found 2. its duration was too long

because it applied for life without any possibility for review and3. the class of persons to whom it applied would not be continuing danger tochildren.

Overbreadth is not the same as vagueness . Overbreadth law- can be perfectlyclear and still use means that went further than necessary to accomplish the law’spurpose.

Overbreadth and Vaguness have this in Common :either deficiency results inthe invalidity of the entire law, including the part that is consistent with thepurpose of the law and clear in its application.

a law which restricts freedom for no reason offends the principles of fundamental justice. Overbreadth-raises serious practical and theoretical

difficulties and confers exceedingly discretionary power of review on the court. Ontario v Canadian Pacific (1995 )- offence under EPA for discharging smokeinto the air. Lamrer CJ solved the problem by invoking the presumption of constitutionality and adopting an artificial narrow interpretation of the Act –exempting the wild

R v Clay (2003) possession of marihuana- law criminalizing marihuana whichincludes the penalty of imprisonment and therefore impaired liberty under s7)offended the principles of fundamental justice because it was overbroad. The SCCdid not agree. It was obvious that the law caught people who were in possession



of marihuana in the privacy of a home who were not about to drive a car oroperate machinery.

R v Demers- a committee was designed for people who were found to be unfitfor trial. This committee would review their case annually. People unfit weregetting trapped in the system because there was not power by the courts to ordera discharge even if the person was not a public threat. Since the law made no

provision for an absolute discharge for the permanently unfit accused. It wasoverbroad.Disproportionate law 47.16

R v Malmo- Levine (2003)- the SCC established a new doctrine of “disproportionaity” which is a breach of the principles of fundamental justice. Thisdoctrine of disproportainalty requires the court to determine:1) whether a law pursues a “legitimate interest” and if it does2) whether the law is grossly disproportionate to the state interestArbitrary laws 47.17

Chaoulii v Quebec ( AG) [2005]- a challenge was brought forth on Quebec’sprohibition on the purchase of private health care insurance. The purpose was to

make public health care exclusive. On the issue of fundamental justice the courtwas evenly divided. For McLachlin CJ and Major J ( writing with the agreementBastarache) the Quebec law prohibiting health insurance offended the principlesof fundamental justice because it was arbitrary. They gave a different test of disproportionality laid down in Malmo-Levine. A law is arbitrary if it “lacks a realconnection on the facts to the purpose the law is said to serve.” This was the casehere because evidence showed that other developed countries with universalpublic health care plans permitted parallel access to private care without injury tothe public health care system.

25Vague Laws 47.18 a law violates the principles of fundamental justice which causes a breach of s

7 if the law is a deprivation of life, liberty or security of person. A vague lawoffends two values that are fundamental to the legal system. First, the law doesnot provide fair notice to persons of what is prohibited which makes it difficult forthem to comply with the law. Secondly the law does not provide clear standardsfor those entrusted in enforcement which may lead to arbitrary enforcement.

Prostitution Reference (1990)- SCC acknowledged that the prohibition was“broad and far reaching, denied that it was so vague that a court could not give“sensible meaning to its terms.

United Nurses of Alberta v Alberta (1992)- The SCC held that it was not arequirement of fundamental justice that a criminal offence be codified in statorform. Although the elements of the common law offence were not as clear ascould be achieved in a statutory definition, the offence was neither vague norarbitrary”’

R v Nova Scotia Pharmaceutial Society (1992)- the word “unduly” was attackedunder s7 on the ground that the word was unconstitutionally vague. Thisargument was rejected by the SCC.

Ontario v Canadian Pacific (1995)- EPA and the use of the words



“contaminent”, into the “natural environment” and “for any use that can be madeof it” were so vague that the offence was void for vagueness under s7.a) standard of precisionwhat is the constitutional standard of precision that a law must meet in order toavoid the vice of vagueness?

R v Nova Scotia Pharmaceutical Society (1992)- The law should be “intelligible”

and should sufficiently delineate “an area of risk” and whether the law provides“an adequate basis for legal debate” ( Hogg sees this last one leastuseful.)However the SCC has employed in subsequent cases. Gontheir J- there isno requirement that the law be “absolute certain” because no law can meet thatstandard.

Canadian Foundation for Children Youth and Law v Canada- “reasonable force”by way of correction in s43 of the CC. It appeared vague and many lower courtsthat found that s43 did not provide meaningful standards. The SCC ignored thisbody of law and instead relied on expert evidence. “on the basis of expertevidence”- so interpreted she held that s43 “sets real boundaries and delineates arisk zone for criminal sanction” that is sufficiently clear standard to avoid the

charge of unconstitutional vagueness.b) application to other Charter rights R v Morales(1992) the SCC held that the doctrine of vagueness also applies to s

11(e) of the Charter. Larmer CJ for the majority of the court said there cannot be just cause for denial of bail within the meaning of s11(e) if the statutory criteriafor denying bail are vague and imprecise. s8 and s9 can be expected to be vagueas well.Wrong Laws 47.19

R v Gamble (1988)- the person was tried and convicted of murder andimprisoned under laws that had been enacted. She should have been tried withoffences which existed during the time of the offence. This affected her eligibility

for parole. Wilson J- for the SCC held- the continued detention of the prisonerwithout the eligibility for parole was a breach of s7. A basic tenant of the legalsystem is that” an accused must be tried and punished under the law in force atthe time the offence was committed. She was eligible to apply for paroleimmediately.Right to Silence 47.20

R v Hebert (1990)- the accused had been arrested and advised of his rightcounsel. He did retain counsel and advise the police he did not want to make astatement. He then was placed in custody with an undercover cop to whom theaccused made an incriminating statement. SCC held-that the statement had beenobtained in breach of the Charter. In effect the police had used a trick to subvert

the accuser’s election not to make a statement to the police. The reason why itwas under s7 and not s10(b)( right to counsel) is because court took the right tosilence route. Note: If it was a voluntary statement to another prisoner or even anundercover cop the result would have been different.

R v Broyles (1991)- was another jailhouse confession. The accused made astatement while in custody to a friend who visited him in the jail. The friend hadbeen recruited as police informer. The difference between Herbert and this case isthat it was a police informer. SCC held it was abreach to his right and thestatement was excluded.



s7 contains residual of the right to silence which supplements s11(c) and 13. s11(c) which applies only to the accused in a criminal trial (making the accused

a non-compellable witness) is supplemented by s7 which applies to any witness inany proceeding and which makes the witness non-compellable if the true purposeof calling the witness was to obtain incriminating evidence against the witness.

R v Fitzpatrick ( 1995) concerned the requirement of the federal Fisheries Act

that records be kept by fishers and supplied to government on a daily basisdetailing their daily catch of fish. Could these records be used in trial as evidenceagainst him? SCC held- there was no breach of s11(c) and no breach of s7because in the context of the regulatory scheme to which the accused

26had voluntarily submitted by engaging in the business of fishing fundamental

justice did not prove an immunity against the use of statutory compelledinformation.A statutory compulsion to give testimony is a deprivation of liberty under s7.

The s7 right against self incrimination may give rise to 3 different kinds of immunity .a) “use immunity”- which protects the witness from having the compelledtestimony used to incriminate him or her in a subsequent proceeding. This isprovided to a witness who testifies in any proceedings by s13 and to personsother than witness by s7 –illustrated by R v White ( 1999)b) “derivative use immunity”- which protects the witness from having thecompelled testimony used to obtain other evidence (derivative or secondary) toincriminate him or her in a subsequent proceedings unless the derivate evidenceis discoverable independently of the compelled testimony.c)-the third is an exemption from testifying in the first place which applies if an

attempt is made to use a statutory compulsion to obtain testimony from thepredominate purpose of obtaining evidence for the prosecution of the witness thisis illustrated in R v Jarvis ( 2002)

R v White ( 1999)- whether reports made to police under the compulsion of aprovincial law could be used against the person reporting them. SCC held-because the accident reports were provided under compulsion their admissioninto evidence against the accused would violate a principle of fundamental justiceunder s7 –a principle against self-incrimination. The court distinguished on thegrounds that driving is not freely undertaken in precisely the same way as one isfree to participate in a regulated industry such as commercial fishery.

R v Jarvis ( 2002)- Tax related case. The taxpayer was vulnerable to the penalty

of imprisonment meaning s7 was applicable. SCC held-the CRA during theinvestigative phase-tax officials could not continue to use the audit power tocollect evidence for criminal prosecution. If more material was needed it wouldhave to be done through a search warrant.

Section 13- which applies only to self incriminatory evidence given by a witness(making it inadmissible to incriminate the witness in other proceedings)FAIR TRIAL 47.21a) The right to a fair trial

The principles of fundamental justice obviously require that a person accused



of a crime receive a fair trial. s7 overlaps with s11(d)- which also guarantees a person charged with an

offence “ a fair and public hearing by an independent and impartial tribunal” s7 is wider than s11 (d) because it also applies to civil/administrative

proceedings where they affect life liberty and security of persons. example- New Brunswick v G.(J).[1999]- SCC held: that an application by the

state to remove children from the custody of a parent affected the parent’ssecurity of the person and made s7 applicable. Principles of fundamental justicerequired a fair hearing be provided and that the parent be provided with statefunded representation .

Winnipeg Child and Family Services v KLW ( 2000)- held that the warrantlessapprehension by the state of a child “in need of protection” was not a breach of the principles of fundamental justice. A requirement of a warrant issued by a

judge or a hearing before a judge prior to apprehension would lead to delay whichwould create a risk of harm to the child. The principles of fundamental justicewere satisfied by a post-apprehension hearing.

extradition of a fugitive- to face trial in another country starts with the arrest of

the fugitive and a hearing before the judge to determine whether the requestingstate has sufficient evidence. This process is a denial of liberty to the fugitive andthe hearing must conform to the principles of fundamental justice. The fugitive isnot entitled to a full-dress criminal trial because determination of guilt will bedealt with later.

extradition judge- all that s/he can do is determine whether the requestingstate has a prima facie case against the fugitive.

fugitive is entitled- to know the case against her , she is not entitled to the fulldisclosure of all relevant prosecution evidence that is requested in a criminal trial.

“No” to the US - Despite the fact the US had made out a prima facie caseagainst the fugitives, the SCC stayed the proceedings on the grounds that the

extradition of the fugitives in light of these threats would be a breach of theprinciples of fundamental justice . Right to a fair trial does not mean that all existing rules and procedure are

constitutionalized. Court upheld these so they would reduce the stress on a young witness and

enhance the reliability of their evidence.

27 example –R v. L ( D.O.)[1993] SCC upheld a provision of the CC that allows for

the videotaping of the evidence of a witness who is under the age of 18 so that

the trial the witness need only adopt the contents of the tape instead of goingover the whole story again. R v. Levogiannis [1993]- SCC upheld another provision that allows a witness

under the age of 18 to testify from behind a one-way screen so the witnesscannot see the accused (although the accused can see the witness)Note: if the fairness of the trial is prejudice-court has taken comfort from the factthe trial judge had been given a discretion to deny the use of a video tape orscreen in that case.Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350



the SCC took a more radical departure from the traditional trial format. Issue- was the process for the issue of a “security certificates” under the

federal Immigration and Refugee Protection Act. The Act empowered 2 minstersto issue the certificate declaring a non-citizen named in the certificate to be athreat to national security. The certificate authorized the arrest and detention of the person. The certificate was then brought to a judge to review on the standard

of reasonableness then if found to be reasonable the person would be deported. The Problem- the person named in the certificate at no stage know the natureof the case against him. There was no hearing on the original issue. The judgewas also under obligation not to disclose to the name person the information uponwhich the certificate had been based.

SCC held that- the issue of the security certificate was a deprivation of libertyunder s7 and that the review process did not satisfy the principles of fundamental

justice because it did not provide the named person a fair hearing. McLachlin CJ- acknowledged that- “the procedures required to meet the

demands of fundamental justice depend on the context.” and she acknowledged “national security considerations can limit the extent of disclosure of information to

the affected person” but she held “ the secrecy required by these scheme deniesthe named person the opportunity to know the case put against him or her andhence to challenge the government’s case.

She then applied the Oakes Test and s1 of the Charter. There was no doubt that protecting secret information respecting intelligence

sources and national security and withholding of such information was rationallyconnected to the objective. But… the law failed the least dramatic means testbecause Parliament could have adopted better procedures to protect secrecy thatwere less intrusive on individuals rights.

She pointed to a system of “special counsel” that had been used in Canada wasused in other countries in national security cases.

She did not say this was the only way stating “precisely what is to be done isfor parliament to decide.”b) Full answer and defence 47.21(b)R v Seaboyer ( 1991)- SCC heldthat both s7 and 11(d) guaranteed an accused“the right to present full and answer and defence” and that this right was reducedby a “rape shield” provision in the CC-which restricted the right of a personcharged with a sexual assult to cross examine the complainant about their pastsexual activity McLachlin J- this provision would occasionally have the effect of excluding relevant evidence that was required to enable the accused to make fullanswer and defence .R v Cook(1997) – Crown calling witness The SCC rejected the argument that the

inability of the accused( assault) to cross examine his accuser was a denial of theaccsued’s right to make full answer and defence. SCC Held the Crown hasdiscretion as to the witness ( did not call victim) it chose to call and the accusedright to make full answer and defence was protected by his evidence the jury hadfound the accused guilty. The argument that the accused would be surprised attrial was rejected because of pre-trial right to full exposure. SCC acknowledged –there might be rare cases where the suppression of potentially exculpatoryevidence by the Crown amounted to an abuse of process, but the onus is of proving misconduct lay on the accused and had not been discharged in this case



R v Stinchcombe ( 1991)-SCC held that pre-trial disclosure by the Crown, of allinformation relevant to the conduct of the defence is a constitutional obligation,entailed by the accused to make a full answer Crown has no duty to discloseirrelevant information or privileged information. The crown retains discretion as tothe timing of disclosure, since premature disclosure could impede investigations.

28d) Pre-trial disclosure by third partiesR v O’Conner ( 1995)R v McClure ( 2001)R v Brown ( 2002)e) preservation of evidenceR v La ( 1997)R v Carosella ( 1997)f) statutory limits on pre trial disclosureR v O’Conner ( 1995)

FAIR ADMINSTRIAVE PROCEDURES 47.22BC Motor Vehicle Reference Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, per McLachlin

C.J./Major J. and Binnie/Lebel JJ., paragraphs 102-279 Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350

Equality RightsConstitution Act, 1982, s.15, s.28Hogg, chapter 55, “Equality”

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497

R. v. Kapp, [2008] 2 S.C.R. 483Remedies

Documents

Consti Notes - Ch 47