Re B.C. Motor Vehicle Act

Re B.C. Motor Vehicle Act
Collection
Supreme Court Judgments
Date
1985-12-17
Report
[1985] 2 SCR 486
Case number
17590
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 17590
Decision Content
Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486
IN THE MATTER OF the Constitutional Question Act, R.S.B.C. 1979, c. 63
AND IN THE MATTER OF the Reference re Section 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.
File No.: 17590.
1984: November 15; 1985: December 17.
Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Right to life, liberty and security of the person and right not to be deprived thereof except in accordance with principles of fundamental justice ‑‑ Whether or not absolute liability offence with mandatory imprisonment in breach of that right ‑‑ Meaning of term “principles of fundamental justice” ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 ‑‑ Constitution Act, 1982, s. 52 ‑‑ Canadian Bill of Rights, s. 2(e) ‑‑ Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 94(1), (2).
Criminal law ‑‑ Absolute liability offence with mandatory imprisonment ‑‑ Charter right to liberty and right not to be deprived thereof except in accordance
with principles of fundamental justice ‑‑ Whether or not offence in breach of that Charter right.
The B.C. Motor Vehicle Act provided for minimum periods of imprisonment for the offence of driving on a highway or industrial road without a valid driver's licence or with a licence under suspension. Section 94(2) of the Act, moreover, provided that this offence was one of absolute liability in which guilt was established by the proof of driving, whether or not the driver knew of the prohibition or suspension. The Court of Appeal, on a reference by the provincial government, found s. 94(2) to be of no force or effect as it was inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms : "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." That decision was appealed to this Court.
Held: The appeal should be dismissed.
Per Dickson C.J. and Beetz, Chouinard, Lamer and Le Dain JJ.: A law with the potential of convicting a person who really has done nothing wrong offends the principles of fundamental justice and violates a person's right to liberty under s. 7 of the Charter if imprisonment is available as a penalty.
The analysis of s. 7 was limited to determining the scope of the words "principles of fundamental justice". That phrase is not a protected right but a qualifier to the protected right not to be deprived of "life, liberty and security of the person"; its function is to set the parameters of that right. Interpretation of the term must be with reference to the protected rights but not so as to frustrate or stultify them. An interpretation equating "fundamental justice" with "natural justice" would not only be wrong, in that it would strip the protected interests of most of their content, but also would be inconsistent with the affirmative purposive expression of those rights.
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 . These sections are illustrative of the meaning of "principles of fundamental justice" in criminal or penal law. They recognize principles given expression at common law, by international convention and in the very entrenchment of the Charter as essential elements for the administration of justice founded on the dignity and worth of the human person and the rule of law.
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. These principles are not limited to procedural guarantees, although many are of that nature. Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 must rest on an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our evolving legal system. The words "principles of fundamental justice", therefore, 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 .
The Minutes of the Proceedings of the Special Joint Committee were admissible but without much weight given the inherent unreliability of such speeches and statements. The comments of a few public servants, however distinguished, could not be determinative in light of the many actors and the role of the provinces in arriving at the Charter . To cast the interpretation of s. 7 in terms of the comments made at the Joint Committee Proceedings would freeze the rights, values and freedoms expressed in the Charter as of the moment of adoption and deny it growth and adjustment over time.
The Canadian Bill of Rights, too, was of little assistance in construing s. 7 . The words "principles of fundamental justice" in s. 2(e) of the Canadian Bill of Rights are placed explicitly in context of and qualify a "right to a fair hearing". Section 7 of the Charter does not create the same context: the words "principles of fundamental justice" are placed in context of and qualify much more fundamental rights. The distinction was important.
Absolute liability does not per se violate s. 7 of the Charter . An absolute liability offence violates s. 7 only if and to the extent that it has the potential to deprive life, liberty or the security of the person. There is no need that imprisonment be mandatory. The combination of imprisonment and absolute liability, however, violates s. 7 irrespective of the nature of the offence and can only be salvaged if the authorities demonstrate, under s. 1 , such a deprivation to be a justified limit in a free and democratic society. Generally, no imprisonment may be imposed for an absolute liability offence and an offence punishable by imprisonment cannot be an absolute liability offence.
Public interest cannot be a factor in determining if absolute liability offends the principles of fundamental justice but only as a justification under s. 1 . Administrative expediency, invoked as a justification for sacrificing s. 7 rights, should only succeed in cases arising out of exceptional conditions such as war, natural disasters or epidemics.
Section 94(2) enacts in the clearest of terms an absolute liability offence for which conviction will result in a person's being deprived of his liberty. Whether or not the provision is of limited or broad effect cannot change the fact that it is in violation of the Charter and at best could only be considered under s. 1 . Notwithstanding the desirability of keeping bad drivers off the roads or of punishing them, no evidence was adduced demonstrating this end or the risk of imprisonment of a few innocent people to be a reasonable and justifiable limit on s. 7 within the meaning of s. 1 of the Charter .
Per McIntyre J.: Section 94(2) of the Motor Vehicle Act is inconsistent with s. 7 of the Charter . Fundamental justice, as used in the Charter , involves more than natural justice, which is largely procedural, and includes a substantive element. On any definition of the term "fundamental justice", the imposition of minimum imprisonment for an offence which may be committed unknowingly and without intent and for which no defence can be made deprives or may deprive of liberty and offends the principles of fundamental justice.
Per Wilson J.: Section 94(2) of the Motor Vehicle Act violates s. 7 of the Charter and is not saved by s. 1 . This is because a mandatory sanction of imprisonment cannot be attached to an absolute liability offence without offending s. 7 .
The phrase "in accordance with the principles of fundamental justice" is not 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. Rather it protects 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 affirm a right to the principles of fundamental justice per se. Accordingly an absolute liability offence does not offend s. 7 unless it violates the right to either the life, liberty or security of the person through a violation of the principles of fundamental justice.
Section 1 of the Charter permits reasonable limits to be placed on the citizen's s. 7 right provided the limits are "prescribed by law" and can be demonstrably justified in a free and democratic society. If these limits are not imposed in accordance with the principles of fundamental justice, however, they can be neither reasonable nor justified under s. 1 . The phrase "except in accordance with the principles of fundamental justice" restricts the government's power to impose limits under s. 1 . A limit imposed on the s. 7 right in accordance with the principles of fundamental justice must still meet the tests in s. 1 .
The courts must determine the principles which fall under the rubric "principles of fundamental justice". It would seem, however, that the phrase must include the fundamental tenets of our justice system. The framers of the Charter obviously deliberately avoided the concepts of "natural justice" and "due process". There seems no good reason to restrict the principles of fundamental justice to procedural matters in light of the reference to the rule of law in the preamble. Indeed, no purpose is achieved by importing the dichotomy between substance and procedure into s. 7 .
The principles of sentencing, and especially that the minimum sentence required to obtain the objectives of the system be imposed, were key to determining that s. 94(2) offended fundamental justice. Imprisonment is the most severe sentence imposed by law, apart from death, and is generally reserved as a last resort for occasions when other sanctions cannot achieve the objectives of the system. Mandatory imprisonment for an absolute liability offence committed unknowingly and unwittingly and after the exercise of due diligence is excessive and inhumane. Such sanction offends the principles of fundamental justice embodied in our penal system and accordingly is inconsistent with s. 7 of the Charter .
Cases Cited
R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; Amax Potash Ltd. v. Government of Saskatchewan, [1977] 2 S.C.R. 576; Kienapple v. The Queen, [1975] 1 S.C.R. 729; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Curr v. The Queen, [1972] S.C.R. 889; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Therens, [1985] 1 S.C.R. 613; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; R. v. Cadeddu (1982), 40 O.R. (2d) 128; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; 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; R. v. Holman (1982), 28 C.R. (3d) 378; Gosselin v. The King (1903), 33 S.C.R. 255; Reference re Wartime Leasehold Regulations, [1950] S.C.R. 124; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Re: Anti‑Inflation Act, [1976] 2 S.C.R. 373; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Re: Authority of Parliament in relation to the Upper House, [1980] 1 S.C.R. 54; Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; Duke v. The Queen, [1972] S.C.R. 917; McNabb v. United States, 318 U.S. 332 (1942); Harding v. Price, [1948] 1 K.B. 695; Beaver v. The Queen, [1957] S.C.R. 531; R. v. MacDougall, [1982] 2 S.C.R. 605; Proprietary Articles Trade Association v. Attorney General for Canada, [1931] A.C. 310; R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5, referred to.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1970, App. III, preamble, s. 2(e).
Canadian Charter of Rights and Freedoms , preamble, ss. 1 , 7 , 8 , 9 , 10 , 11 , 12 , 14 , 33 .
Constitutional Act, 1867, ss. 91(27), 92(14).
Constitutional Act, 1982, s. 52(1).
Constitutional Question Act, R.S.B.C. 1979, c. 63, s. 1.
Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 94 (am. by Motor Vehicle Amendment Act, 1982, 1982 (B.C.), c. 36, s. 19).
Authors Cited
Abel, A. S. "The Neglected Logic of 91 and 92" (1969), 19 U. of T. L.J. 487, 487‑521.
Allen, Sir Carleton Kemp. Legal Duties and Other Essays in Jurisprudence, Oxford, Clarendon Press, 1931.
Archbold, John Frederick. Pleading, Evidence & Practice in Criminal Cases, 30th ed. by Robert Ernest Ross and Maxwell Turner, London, Sweet & Maxwell, Ltd., 1938.
Blackstone, Sir William. Commentaries on the Laws of England, 17th ed., by E. Christian, London, T. Tagg, 1830.
Canada. Law Reform Commission of Canada. Working Paper 11, "Imprisonment and Release" in Studies on Imprisonment, Ottawa, Law Reform Commission of Canada, 1976.
Holdsworth, Sir William S. A History of English Law, 3rd ed., vol. 2, London, Methuem & Co. Ltd., 1923.
Kenny, Courtney Stanhope. Outlines of Criminal Law, 16th ed. by J. W. Cecil Turner, Cambridge, University Press, 1952.
Laskin, B. Canadian Constitutional Law, 3rd ed. rev., Toronto, Carswells, 1969.
Lederman, W. R., ed. The Courts and the Canadian Constitution, Toronto, McClelland & Stewart Ltd., 1964.
Magnet, J. E. "The Presumption of Constitutionality" (1980), 18 Osgoode Hall L.J. 87, 87‑145.
Tremblay, L. "Section 7 of the Charter : Substantive Due Process?" (1984), 18 U.B.C.L. Rev. 201, 201‑254.
Walker, Nigel. Sentencing in a Rational Society, Western Printing Services Ltd., Bristol, 1969.
Williams, G. Criminal Law, The General Part, 2nd ed., London, Stevens & Sons Ltd., 1961.
APPEAL from a judgment of the British Columbia Court of Appeal (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, in the matter of a reference concerning the constitutional validity of s. 94(2) of the Motor Vehicle Act of British Columbia. Appeal dismissed.
Allan Stewart, Q.C., for the appellant the Attorney General of British Columbia.
Graham R. Garton, for the intervener the Attorney General of Canada.
Ian MacDonnell and M. D. Lepofsky, for the intervener the Attorney General for Ontario.
Andrew Petter and James MacPherson, for the intervener the Attorney General for Saskatch­ewan.
William Henkel, Q.C., and D. W. Kinloch, for the intervener the Attorney General for Alberta.
C. G. Stein, for those contending for a negative answer (respondent).
J. J. Camp and P. G. Foy, for the intervener the British Columbia Branch of the Canadian Bar Association.
The judgment of Dickson C.J. and Beetz, Chouinard, Lamer and Le Dain JJ. was delivered by
1. Lamer J.‑‑
Introduction
2. 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).
3. In other words, absolute liability and imprisonment cannot be combined.
The Facts
4. 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 ?
5. 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
6. 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.
7. 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".
8. 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.
9. 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.
Section 7
1. Introduction
10. 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
11. 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 .
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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".
18. 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.
19. 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.
20. 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).
21. 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.
22. 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
23. 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.
24. 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.
25. 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).
26. 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.
27. 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.
28. 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).
29. 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".
30. 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 ).
31. 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.
32. 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.
33. 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.
34. 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
35. 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.)
36. 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 w