4/10/20151 Re B.C. Motor Vehicle Act, 1985

4/10/20152 Some Preliminaries  By common law, legal offenses require two elements: 1. Actus Reus: “guilty act” (or omission) 2. Mens Rea: “guilty mind”  “actus non facit reum nisi mens sit rea” "a person cannot be convicted and punished in a proceeding of a criminal nature unless it can be shown that he had a guilty mind".

4/10/20153 Mens Rea  "a particular state of mind such as the intent to cause, or some foresight of, the results of the act or the state of affairs." (R v Daviault [1994] 3 SCR 63 at para. 74) (R v Daviault [1994] 3 SCR 63 at para. 74)R v DaviaultSCRR v DaviaultSCR

4/10/20154 Mens Rea, cont’d Four Traditional Categories Agent acts: 1. Purposely: has an actual, consciously formed intent to achieve the criminal consequence 2. Knowingly: has a conscious awareness that his conduct will produce the consequence 3. Recklessly: exhibits conscious disregard of the fact that conduct creating an unreasonable peril 4. Negligently displays inadvertence to peril that would have been apparent to a reasonable man reasonable manreasonable man

4/10/20155 Absolute Liability  Absolute liability offenses No mens rea requirement No mens rea requirement Actus reus sufficient to establish guilt Actus reus sufficient to establish guilt Often used in “regulatory offenses” – e.g. pollution controls, product liability, etc. Often used in “regulatory offenses” – e.g. pollution controls, product liability, etc. Reasons: efficiency; difficulty in proving mens rea; importance of regulating activity; deep pockets; fair that party causing risk (often for financial reward) shoulders burdens of risk Reasons: efficiency; difficulty in proving mens rea; importance of regulating activity; deep pockets; fair that party causing risk (often for financial reward) shoulders burdens of risk

4/10/20156 Criminal Law Offenses  Traditionally, common law criminal offenses require mens rea  Unjust to convict, punish, and impose stigma of criminality on, agent without mens rea – without “guilty mind”  Traditionally, knowledge and intention required  Recklessness sometimes accepted  “Criminal negligence” controversial

4/10/20157 Principles of Natural Justice  Concern procedural fairness  Attempt to ensure a fair decision “…the tribunal which adjudicates upon [a person’s] rights must act fairly, in good faith, without bias, and in a judicial temper, and must give to him the opportunity adequately to state his case.” Duke v. The Queen, [1972] S.C.R. 917 “…the tribunal which adjudicates upon [a person’s] rights must act fairly, in good faith, without bias, and in a judicial temper, and must give to him the opportunity adequately to state his case.” Duke v. The Queen, [1972] S.C.R. 917

4/10/20158 Principles of Natural Justice, cont’d Two Rules: 1. The Hearing Rule: audi alteram partem – opportunity to prepare and present evidence and to respond to evidence and arguments presented by opposing side  Right to face one’s accusers

4/10/20159 Principles of Natural Justice, cont’d 2. The Bias Rule: nemo judex in parte sua – no person may judge their own case – decision-maker must be impartial – decision based on balanced and considered assessment of all information considered assessment of all information and evidence before judge/adjudicator and evidence before judge/adjudicator – without bias, i.e., favouring one party – without bias, i.e., favouring one party over another over another – no conflict of interest – no conflict of interest

4/10/ “Due Process of Law”  Fifth Amendment, US Constitution “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb [double jeopardy]; nor shall be compelled in any criminal case to be a witness against himself [self incrimination], nor be deprived of life, liberty, or property, without due process of law [due process clause]; nor shall private property be taken for public use, without just compensation [takings clause].”

4/10/ “Due Process of Law”, cont’d  Two varieties: Procedural Due Process = Principles of Natural Justice; Fair procedures Procedural Due Process = Principles of Natural Justice; Fair procedures Substantive Due Process =laws, regulations and gov’t acts must (1) be related to a legitimate government interest (e.g., crime prevention); and (2) not contain provisions that result in the unfair or arbitrary treatment of an individual. Substantive Due Process =laws, regulations and gov’t acts must (1) be related to a legitimate government interest (e.g., crime prevention); and (2) not contain provisions that result in the unfair or arbitrary treatment of an individual. Concerns substance and objectives of laws, regulations and gov’t acts, not just proceduresConcerns substance and objectives of laws, regulations and gov’t acts, not just procedures

4/10/ Re B.C. Motor Vehicle Act, 1985  Reference case  According to Motor Vehicle Act, R.S.B.C. 1979, anyone who drives while legally prohibited from doing so is guilty of an offence and liable to either fine or imprisonment  The Act “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…” (198)

4/10/  Question: “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?” (198)  B.C. Lieutenant Governor referred question to B.C. Court of Appeal  BC Court found s. 94(2) to be of no force or effect as it was inconsistent with s. 7 of Charter  Question now before Supreme Court of Canada (SCC) on appeal from AG of BC

4/10/ Judgment per Lamer, J.  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.” (198)  “…values subject to constitutional adjudication now pertain to the rights of individuals as well as the distribution of government powers.” (198)  “…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.”

4/10/  “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.” (198)

4/10/  Concern among critics that, unless “principles of fundamental justice” read as equivalent to “principles of natural justice,” then: Courts will be led to “question wisdom of enactments” Courts will be led to “question wisdom of enactments” Courts become judicial “super-legislatures” (199) Courts become judicial “super-legislatures” (199) Violation of democratic principle Violation of democratic principle

4/10/  AG of Ontario states: “…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.”

4/10/  Lamer’s response: 1. Elective representatives chose to entrench Charter, thereby extending scope of constitutional/judicial review (199) 2. Principles of fundamental justice (conceptually) wider category than principles of natural justice 3. Courts have historically considered more than natural justice when assessing statutes “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” (199)

4/10/ Therefore, concerns about extending scope of fundamental justice beyond natural justice unfounded Conclusion: SCC free to consider whether, Charter’s reference to “principles of fundamental justice” extends beyond “principles of natural justice” Conclusion: SCC free to consider whether, Charter’s reference to “principles of fundamental justice” extends beyond “principles of natural justice”

4/10/  Next Question: Which approach should court take when interpreting Charter’s rights provisions – in particular, Sec. 7? “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.”

4/10/  Answer: Already provided in Hunter v Southam & R v Big M Drug Mart… Purposive Interpretation “The meaning of a right or freedom guaranteed by the Charter [is] to be ascertained by an analysis of the purpose of such a guarantee; it [is] to be understood, in other words, in light of the interests it was meant to protect.” (199)

4/10/  What are the “interests” Sec. 7 was meant to protect?  Answer: Provided in Sections 8 – 14  “Sections 8 – 14…address specific deprivations of the “right” to life, liberty and security of the person in breach of the principles of fundamental justice” (200)

4/10/  “…they are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person…” (200)  “It would be incongruous to interpret s. 7 more narrowly than the rights in ss. 8-14…” (200)  “…Clearly, some of those sections embody principles that are beyond what could be characterized as “procedural.” (200)

4/10/ For example,  8. Everyone has the right to be secure against unreasonable search or seizure.  9. Everyone has the right not to be arbitrarily detained or imprisoned.  12. Everyone has the right not to be subjected to any cruel or unusual treatment or punishment.

4/10/  Sections 8-14, provide “an invaluable key to the meaning of “principles of fundamental justice.” (200)  Principles of fundamental justice have been “developed over time as presumptions of the common law”  Others have “found expression in the international conventions of 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.” (200)  “The principles of fundamental justice are to be found in the basic tenets of our legal system.” (200) 4/10/201526

4/10/ Original Intent  Clearly open for framers to have used the phrase “principles of natural justice” instead of “principles of fundamental justice”  Appeal to “extrinsic evidence” of framers’ intent (Committee reports, Hansard, etc.) inconclusive  “nearly impossible of proof” (201)  “Indeterminate nature of the data” (202)

4/10/ Original Intent, cont’d  Court also notes what it considers an undesirable consequence of heavy reliance on intentions of framers: “…the rights, freedoms and values embodied in the Charter in effect become frozen in time to the moment of adoption with little or no possibility of growth, development and adjustment to changing social needs.” (202) Dead hand of the past Dead hand of the past

4/10/ Original Intent, cont’d “If the newly planted “living tree” which is the Charter is to have the possibility of growth and adjustment over time, care must be taken to ensure that historical materials…do not stunt its growth.” (202) “Consequently, [s. 7’s] words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meanings as the courts address alleged violations of s. 7” (202)

4/10/  Conclusion: Reference to “principles of fundamental justice” in Sec. 7 extends well beyond procedural/natural justice.  New Questions: 1. Do absolute liability offences violate right to life, liberty and security of the person? Answer: Yes, imprisonment restricts liberty

4/10/  2. Are such restrictions of liberty consistent with the principles of fundamental justice? Answer: No. As the court ruled in R. v City of Sault Ste. Marie, “absolute liability in penal law offends the principles of fundamental justice” (202) “there is a generally held revulsion against punishment of the morally innocent.” (202)

An Aside: Penal v Criminal Law  Note SCC’s reference to ‘penal law’  Traditionally: Criminal law v Civil Law  Criminal law: State v Defendant; punishment  Civil Law: Private law; Plaintiff v Defendant; compensation; damages  “Penal law” in Canada: laws that can result in punishment – criminal and non-criminal 4/10/201532

 Why important to distinguish Criminal v Penal?  Criminal: Federal jurisdiction  BUT: Some punishable offences are created by Provincial legislatures  If considered criminal, then “ultra vires”  BC Motor Vehicle Act penal but not criminal 4/10/201533

4/10/ Reasonable Limitations Clause: Section 1  Next Question: Is this “fundamentally unjust” violation of the right to liberty, nevertheless one of those: “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society?” (Sec. 1)

 Answer: No Administrative expediency an inadequate reason of public interest Administrative expediency an inadequate reason of public interest Sec 1 “may” justify violation “only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.” (203) Sec 1 “may” justify violation “only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.” (203) 4/10/201535

4/10/ Less invasive means of “ridding the roads of British Columbia of bad drivers” available (203) Less invasive means of “ridding the roads of British Columbia of bad drivers” available (203) Strict liability offence, “open to the defence of due diligence” (203) Strict liability offence, “open to the defence of due diligence” (203) (N.B. Absolute & Strict liability often identified with one another; SCC distinguishes the two) (N.B. Absolute & Strict liability often identified with one another; SCC distinguishes the two)

4/10/ Concurring Judgment of Wilson, J.  Concurs that BC Motor Vehicle Act violates Sec. 7 & no justification under Sec. 1  Act offends principles of fundamental justice  But, absolute liability offenses per se do not offend principles of fundamental justice

4/10/  Rather: Mandatory imprisonment for absolute liability offenses violates principles of fundamental justice “While the legislature may as a matter of government policy make an [absolute liability] offence, and we cannot question its wisdom in this regard, the question is whether it can make it mandatory for the courts to deprive a person convicted of it of his liberty without violating s. 7.” (205)

4/10/ “…the conscience of the court would be shocked and the administration of justice brought into disrepute by such an unreasonable and extravagant penalty. It is totally disproportionate to the offence and quite incompatible with the objective[s] of a penal system…” (205) “…such a sanction offends the principles of fundamental justice embodied in our penal system.” (205)

4/10/ Exclusionary Rules  Re: “administration of justice” being “brought into disrepute”, c.f. Charter 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

4/10/  More robust versions available, e.g.,  US rule: Evidence illegally seized by law enforcement officers in violation of a suspect's right to be free from unreasonable search and seizure cannot be used against the suspect in a criminal prosecution. "fruit of the poisonous tree" "fruit of the poisonous tree"fruit of the poisonous treefruit of the poisonous tree

 Traditionally, under common law no exclusionary rule  If evidence is “probative” then may be used – even though police authorities in violation of their duty  Probative = tending to prove point at issue, e.g. defendant committed actus reus 4/10/201542