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 federal
referendum to approve amendments know as the Charlottetown accord. Being
unable to rely on s3 he argued that the failure of the federal parliament to make
provision 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 a
referendum was a form of expression but went on to hold that s2(b) does not
impose on the federal/provincial governments a positive duty to consult citizens
by referendum. No right to vote!
Access to Government 43.20
Native 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 the
Charlottetown accord. SCC held that: according to the principle in the Haig Case-
“generally the government is under no obligation to fund or provide a specific
platform of expression to an individual or group.”
Baier v Alberta (2007)- question of whether Alberta could enact a law that
disqualified teachers and other employees of school boards from serving as
trustees of school boards. The SCC held- upheld the law. The law did not prevent
the teachers from expressing opinions on any issues relating to education ( or
anything else) its purpose was to prevent them to be serving on school boards.
-------------------------------------------------------------------------------------------------------------------
------------------------------
Life Liberty and Security of Person
Constitution 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 characterizing
a law, the laws impact on civil liberties is generally irrelevant or at least of only
subordinate importance.
 s91(27) Consti Act 1867- are the federal powers in relation to criminal law or
criminal procedure. (various stages of arrest, trial, acquittal or conviction and
sentence 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 and
security 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 extraordinarily
broad sweep. A better view is that s 7 only confers one right. The right not to be
deprived of life, liberty or security of the person except in accordance with the
principles of justice.
 Two right version - 1. a right to “life, liberty and security of the person” that is
unqualified 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 English
version 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 be
deprived 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 in
accordance with the principles of fundamental justice for the determination of his
rights and obligations... s. 7 of the Charter- can be seen as an amalgam of these
two 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 “rights
and enjoyment”
 s7 does not include property and does not include the determination of rights
and obligations respecting economic interests.

17
Application of s 1 - 47.3
 Could a law that did not conform to the principles of fundamental justice be
upheld 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 under
s 1.
Who can Benefit of s 7 - 47.4
a) Corporations
 s7 is applicable to “everyone” a word that is normally apt to include a
corporation as well as an individual.
 Irwin Toy v Que [1989] - SCC held that the context of s7 “everyone” does not
include a corporation because an artificial person (a corporation) is incapable of
possessing “life, liberty or security of person” because these are attributes of a
natural person.
b) Immigrants
 Singh v Minster of Employment and Immigration (1995) “everyone” includes
immigrants to Canada. Wilson J said that s7 right could be asserted by “every
human being who is physically present in Canada and by virtue of such presence
amenable to Canadian law.
 This means that immigrant who claimed refugee status was entitled to a
hearing 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 down
restrictions on abortion because it infringed the security of the person of the
mother.
Burden of s7- 47.5
 section 7 like other Charter provisions applies only to “governmental action” as
defined in s32 Charter.
Life -47.6
 s7 protects “life, liberty and security of person” So far as “life” is concerned , it
is rarely discussed because governmental action rarely causes death.
 Obvious case is the death penalty-but this removed from Canada’s Criminal
Code in 1976.
 Chaoaulli v Que [2005]- The SCC held- that excessive waiting times for
treatment in the public health care system of Quebec increased the risk of death,
and were in violation of the right to life (as well as security of the person).
Liberty 47.7
a) physical liberty
 s7 protects “life liberty and security of the person”. What is included in
“liberty”?
 Re: ss 193 and 195.1 CC -“Liberty”- certainly includes freedom from physical
restraint. Any law that imposes the penalty of imprisonment, whether the
sentence is mandatory or discretionary is by virtue of that penalty a deprivation of
liberty and must conform to the principles of fundamental justice.
Examples that are not a deprivation of liberty:
 Re BC Motor Vehicle Act [1985] –a law that imposes only a penalty of a fine is
not a deprivation of liberty. (Larmer left open “imprisonment as an alternative to
non-payment could be)
 Buhlers v BC (1999)-the suspension of a driver’s license is not a deprivation of
liberty.
 Medovarski v Canada [2005]-the deportation of a non-citizen is not a
deprivation of liberty, attracting the rules of fundamental justice because a non-
citizen has no right to enter or remain in Canada.
Examples that are deprivations of liberty:
 R v Beare [1988]- statutory duty to submit to finger printing and imprisonment
are deprivations of liberty.
 Thompson Newspapers v Can [1990] – to produce documents is a deprivation
of liberty
 Stelco v Can [1990]- to give oral testimony a deprivation of liberty

18
 R v Heywood [1994]-to not loiter in or near school grounds, playgrounds, public
parks and bathing areas is a deprivation of liberty.
 Will a change in the terms of a criminal sentence amount to a deprivation of
liberty?
Cunningham v Canada (1993)-the amended Parole Act cancelled the conditional
release and required the continued detention of the prisoner for the rest of the
prisoner’s sentence. The SCC held that- although the amendment of the Parole
Board had not had the affect of lengthen the defendants 12 year sentence it had
altered the manner in which the sentences was to be served. Serving time on
mandatory supervision was a lesser deprivation of liberty that serving time in
prison. This change in the law should be treated as the deprivation of liberty
interest making s 7 applicable. However, the court went on to hold that it was not
a breach of the principles of the fundamental of justice. The defendant remained
in prison.
 May v Ferndale Institution (2005)- the court reviewed a decision by the
correctional service to transfer a prisoner to a min. security prison to a medium
security prison. Court followed Cunningham and held the decision to transfer the
prisoner was a deprivation of his “residual liberty” so s7 applied. The court held
the failure of the Correctional Service to fulfill a statutory obligation to provide
information as to the reasons of the transfer was not important. (Stinchcome rules
of 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 to
min 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 law
prevents a person from making “fundamental personal choices.”
 Mr Blencoe’s liberty had been impaired because of the unreasonable delay he
waited for the BC Human rights Commission took in disposing sexual harassment
charges against him. Court held:”in these circumstances, the state has not
prevented [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 obligation
of contracts. The replacement of “due process” with “fundamental justice” was
intended to banish Lochner from Canada.
 Re ss 193 and 195.1 CC - s7 –liberty must not be interpreted to include
property, not including freedom of contract and not including economic liberty.
 Gosslin v Que per Larmer J- “ the restrictions on liberty and security of the
person that s7 is concerned with are those that occur as a result of an individual’s
interaction with the justice system and administration. “ –
 because s7 leads of a group of rights s7-14 which deals with the criminal justice
system-search, seizure, detention arrest trial, testimony, and imprisonment it
seems 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 do
business, by selling goods on Sunday.
 Re ss 193 and 195.1- right to work? the regulation of trades and professionals
should be regarded as restrictions on economic liberty that are outside the scope
of 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 be
a candidate for election or the right to travel. These rights are all guaranteed
elsewhere 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 “security
of 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 no
difficulty 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 an
approved hospital were unconstitutional. Evidence showed that hospitals would
not set up the required committees and caused delays in treatments which
increased 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 public
health care system of Quebec caused unnecessary pain and stress to those
waiting surgery and other medical procedures. This was a breach of the right to
security of person (as well as right to life, since the risk of death was sometimes
increased by prolonged delays.
Facts- Quebec law forbade the purchase of private health insurance. The law was
designed to make the public health system exclusive. All 7 judges were
unanimous 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 justice
under s7. The one judge confined her decision and held it was a breach to the
Quebec Charter of rights which does not use the term “fundamental justice”. This
became the majority position. Held- The Quebec law was struck down but does
not go beyond this province. Bans on the purchase of private insurance or other
impediments to access to private health care exists in other provinces and
territories, but it will take another case to determine whether they are a breach to
the 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 the
pregnancy. 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 challenged
the constitutionality of the CC offence of assisting a person to commit suicide. It
was argued that that the law deprived a disabled person of the ability to commit
suicide which was not an offence. 8 of 9 judges of the SCC held that it was a
deprivation of security of the person under s7. However the plaintiff was not
successful 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 state
affected the security of the person of the parent. Security of the person was
affected because the government action would constitute “a serious interference
with the psychological integrity of the parent.” s7 was applied and the removal
proceedings had to be conducted in accordance with the principles of
fundamental justice.
 Winnipeg Child and Family Services v KLW (2000)- the SCC held that a
warrantless apprehension of a child deemed to be “in need of protection” was a
breach 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 apprehension
hearing satisfied the principle of fundamental justice.
 Blencoe v BC (2000) – SCC held- that state induced psychological stress would
be a breach of security of the person, but decided that the Commission’s delays
did not have a sufficiently severe impact on the applicant psychological state to
qualify 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’s
s7 rights.
 Gosselin v Quebec (2002)- it was argued that s7 imposed on government a
positive obligation to provide adequate welfare benefits to those who were
without other sources of income. Her challenge was on age discrimination s 15
and on s7 and she failed on both grounds. Court held s.7 has not been extended
to economic rights nor has it been interpreted as imposing positive obligations on
the state to ensure that each person, enjoyed life, liberty or security of the
person.
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 that
provided 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 taking
of property by government.
 It means that s7 affords no guarantee of fair treatment by courts, tribunals or
officials with power over purely economic interests of individuals or corporations.
 Omission of property- from s7 also ensures a continuing role for the Canadian
Bill 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 the
commission was also in effect the prosecutor of the complaint. The Court relied on
s2(e) because the tribunal had the power to make determination of the
respondents rights and obligations.
 Civil litigation before courts/tribunals is usually about money or property or
other purely economic interests. s7-does not apply to this type of litigation but
Canadian Bill of Rights s2(e) does apply so long as the dispute is governed by
federal law.

20
 Authorson v Canada (2003)- Veteran challenged a provision in the federal
Department of Veterans Affairs Act that barred any claim to interest on moneys
held by the Department on behalf of disabled veterans. The plaintiff became
competent and the dept. paid him money that was owed to him which had
accumulated over a 40 year period. No interest was paid on it. Plaintiff sued for
interest. 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 had
been deprived the “enjoyment of property” without “due process” because
parliament had take his right away to a fair hearing. Court refused to impose any
additional procedural obligations on Parliament “ the only procedure due any
citizen of Canada is that proposed legislation receive three readings in the Senate
and House of Commons and that it received a Royal Assent Court also refused to
interpret s1(a) as imposing a substantive obligation to provide compensation for
expropriated property. 2(e) impose its right to a “fair hearing”
Fundamental justice 47.10
a) 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 meaning
similar 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 in
order to make it did not give rise to a Canadian doctrine of substantive due
process.
 BC Motor Vehicle Reference (1985)- the SCC held that fundamental justice did
indeed cover substantive as well as procedure justice. Larmer J gave three
reasons for extending fundamental justice beyond procedure. 1. the first reason is
that the words “fundamental justice” are literally broader in scope than other
formulations that could have been used such as natural justice. 2. The second
reason 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 reason
for extending fundamental justice beyond procedure into substance is much more
dubious held that s7 is a kind of residuary clause for all legal rights. s8-14 are
merely “illustrative” of deprivations of fundamental justice that could be easily be
caught 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 ss8-14
of the Charter are not in fact drafted to be illustrations of s7 but are designed to
stand alone. b) second difficulty is the fact s8-14 are not confined to life liberty
and security of person as 7 is. Thus s8, protects property from unreasonable
search or seizure , is not premised on a denial of life, liberty or security of the
persons; 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 J
assertion that the “ principles of fundamental justice are to be found in the basic
tenets of the legal system”
 Larmer J- “those words (fundamental justice) cannot be given any exhaustive
content or simple enumerative definition but will take on concrete meaning as the
courts 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 different
opinions as to the applicable basic tenets of the legal system.
 Cunningham v Canada (1993)- SCC had to decide whether it was breach of the
principles 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 the
interests 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 sought
to reconcile.
 Rodriquez v BC (1993)- Sponkia J asserted that the principles of fundamental
justice must be “fundamental” in the sense that they would have general
acceptance among reasonable people. McLachlin J, L’Heureux –Dube J and the
substantial 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 a
fundamental justice. The court created 3 requirements for a rule to qualify as a
basic tenet of legal system and therefore as a principle of fundamental justice .

21
 First- the rule must be a “legal principle”. Second- there must be a “significant
societal consensus that is fundemenal to the way in which the legal system ought
to fairly operate.” Third- the rule must be capable of being “identified with
sufficient precision to yield a manageable standard.
 Harm Principle- The SCC held that the harm principle did not satisfy the 3
requirements. 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 prohibited
for those who had medical use for the drug? –Ontario Court of Appeal answered
no. The possession of marihuana could not be prohibited (with imprisonment as a
possible penalty) if the prohibition did not include an exception for those with
medical needs. Court suspended for a year and the federal government
responded with Marihunana Medical Access Regulations.
 Hitzig v Canada(2003)- challenge on medical marihuana regulations- Ontario
Court of Appeal held they were unconstitutional because it did not provide a legal
source. “To require those persons to purchase the drug from criminals was
“inconsistent with the fundamental principle that the state must obey and
promote 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 was
argued 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 best
interests. The SCC had accepted the 3 requirements of fundamental justice that
was stipulated in Malmo-Levine.
“Residuary Theory”- the effect of the residuary theory is that the precise language
of 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 right
against self-incrimination. The scope of the right was not taken from the precise
language 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 additional
contents s7 7 added to s11(c) and 13
I. a right to remain silent
II. a right not to give an incriminating answer
III. a right to have all evidence derived from the compelled testimony excluded
from the subsequent proceedings
IV. a right to have only that derivative evidence that could not have been
discovered apart from the compelled testimony excluded from subsequent
proceedings
V. 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 47.11
a) categories of offences
R 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 prohibited
act. There is no requirement of fault, either mens rea or negligence. They could
convicted 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 act
however, it is a defence if the defendant proves to the civil standard of the
balance of probabilities that he or she exercised reasonable care ( due diligence)
to avoid committing the crime. There is a fault requirement of negligence because
the accused is liable only if he or she cannot prove the exercise of reasonable
care.
3) offences of mens rea- in which the offence consists not only of doing the
prohibited act, but of doing so with the intent (mens rea) of intending to break the
law ( 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 guilt
is establish by proof of driving whether or not the defendant knew of the
prohibition 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 conviction
would mean a deprivation of “liberty”. The offence was declared to be in violation
of s7 and of no force of effect.
 R v Hess(1990)-another absolute liability case which challenged the statutory
rape provision in the CC. It made it an offence for a male person to have
intercourse with a female person under the age of 14 “whether or not he believes
that 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

22
be innocent. The offence carried a penalty of imprisonment. SCC held- that the
penalty 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 offence
in 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- held
that the quoted phrase meant that a duly diligent driver could be unaware of the
prohibition and could innocently commit the offence of driving while prohibited.
However, the amended act stated “no person is liable to imprisonment for an
absolute 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 is
not affected. As long as imprisonment is not a penalty Parliament can still make
offences of absolute liability.
 For regulatory offences that are punishable by fine it is an issue of statutory
interpretation not constitutional law as to whether the offences of absolute
liability or of strict liability. However because of the injustice of punishing a person
who has acted without fault and has taken reasonable precautions to comply with
the law the presumption is of strict liability.
 Levis v Tetreault –if the offence is a regulatory one, strict liability complies with
s7 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 Competition
Act. The act made it clear that there was no requirement of mens rea, the only
defence was one of due diligence (reasonable care) and the burden of proving
due 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 offence
carrying a punishment of jail was needed by was satisfied with the defence of due
diligence. SCC held- that 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 establish
standards of conduct for activity that could be harmful to others.
Fundamental Justice is satisfied if there is a defence of reasonable care ( due
diligence) and the burden of proving reasonable care ( to the civil standard) may
be cast on the defendant.
 R V Hundel (1993)- the accused had driven his truck through a red light and
collided with another car killing the other driver. He argued that he did not have
time 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 an
objective departure by the accused from the appropriate standard of care. The
fact that the accused believed that he was driving safely was irrelevant.
 R v Nova Scotia Pharmaceutical Society (1992)- the SCC rejected a challenge to
the Competition Act offence of conspiring to lessen competition unduly. The Act
expressly eliminated the element of mens rea by providing that it was not
necessary for the prosecution to prove that the accused intended that his actions
would 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 a
careless manner”. The max penalty was 2 years. Was negligence a sufficient fault
requirement for the CC. Larmer CJ repeated the dictum in Hundal that- “ in the
appropriate context negligence can be an acceptable basis of liability which
meets the fault requirement of s7.
Murder 47.12
 murder used to include the felony murder rule. There was no requirement that
that the accused intended to cause death or that he knew that his actions were
likely to cause the death or even that he ought to have know that his actions were
likely to cause the death. All that was needed as proof was the felony, the use or
carrying of the weapon and the causing death.
 R v Valliancourt (1987)- charge with murder as the result of a poolroom
robbery. The accused knew the accomplice was carrying a gun but did not foresee
that a death was likely to occur (subjective) and there was reasonable doubt that
he “ought to have know” (objective standard). SCC held that the felony-murder
rule 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 to
offence” 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 third
person 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 one
of those few offences for which s7 stipulated a requirement of subjective mens
rea and because the “social stigma associated with the conviction”

23
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 and
unprovable notion as social stigma. He believes that that certain offences carry
constitutional requirements of subjective mens rea then those offences should be
identified, not by reference by names
Unforeseen Consequences 47.13
R v De Sousa(1992)- the accused through a bottle in a fight and injured an
innocent bystander. The accused neither intended nor foresaw the injury. What
was the mental element for causing bodily harm? Sopinka J- held that there was
“no constitutional requirement that intention, either on an objective or subjective
basis extended to the consequences of unlawful acts in general”
 Sopinka J in DeSousa distinguished the line of cases involving murder and
attempted murder on the basis that murder and attempted murder were among
“those few offences which due to their stigma and penalty require fault based on
subjective standard”
 “it is acceptable to distinguish between criminal responsibility for equally
reprehensible 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 the
constitutionality of the CC requirement of objective foresight of bodily harm as the
mental element of unlawful act manslaughter. Foresight of the death was not
required, despite the fact that the maximum penalty for manslaughter was
imprisonment for life.
Involuntary Acts 47.14
a) automatism
 A tenant of the legal system should not be convicted of a criminal offence of an
act that is not voluntary. The courts have become persuaded that a person can
engage in very complex behaviour while in a state of “automatism” and that
automatic behaviour cannot be an offence because it is involuntary.
 R v Parks (1992)- accused drove 23 km and killed his mother in-law and injured
his father in law.. He was charged with murder and attempted murder. His
defence 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. he
argued he was provoke which suffered a “psychological blow” causing him to
commit the act. He was found guilty of manslaughter instead of murder. He
appealed that he should have been acquitted. SCC held- this defence was not
available 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: an
offence 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 is
committed .
 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 but
claimed that she was forced to commit the offences because her mother was
going to be harmed by a man in Belgrade. This was believed by the jury who
acquitted her. The Crown appealed on the ground of limiting conditions of s17
were not satisfied. Corwn argued that- since the offences occurred in Toronto the
threats were no “immediate” and he was not “present when the offences were
committed” The SCC affirmed the acquittal of the accused s7 of the Charter was
applicable 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 person
of a crime when that person had not acted voluntarily.
c) Intoxication
 R v Daviault (1994)- the SCC held that s7 requires that extreme intoxication be
a defence to a criminal charge. If it requires specific intent extreme intoxication
may negative the additional intent and lead to the acquittal of the accused but
the accused would normally escape criminal responsibility because the accused
could still be convicted of a lesser offence (simple assault).
24
 SCC held- that 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 under
s7 the requirement of mens rea for a crime of general intent could only be the
intention to commit the prohibited act. The accused must establish the defence of
extreme intoxication on the balance of probabilities. By reversing the usual onus
of 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 required
specific 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 been
drinking and he hit the head of the victim with a stone. SCC Held- If a
drunkenness raised a reasonable doubt as to whether the accused in fact
possessed the requisite specific intent, the accused was entitled to be acquitted
even 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 a
basis for finding of unconstitutionality in a law that affects life, liberty or security
of persons. In this case anyone previously convicted of sexual assault was not
allowed to be “found loitering in or near a school ground, playground public park
or bathing area. “ In this case the law was overboard because:
1. its geographic scope was too wide, because parks and bathing areas include
places where children were not likely to be found 2. its duration was too long
because it applied for life without any possibility for review and
3. the class of persons to whom it applied would not be continuing danger to
children.
 Overbreadth is not the same as vagueness . Overbreadth law- can be perfectly
clear and still use means that went further than necessary to accomplish the law’s
purpose.
 Overbreadth and Vaguness have this in Common :either deficiency results in
the invalidity of the entire law, including the part that is consistent with the
purpose 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 smoke
into 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 which
includes the penalty of imprisonment and therefore impaired liberty under s7)
offended the principles of fundamental justice because it was overbroad. The SCC
did 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 or
operate machinery.
 R v Demers- a committee was designed for people who were found to be unfit
for trial. This committee would review their case annually. People unfit were
getting trapped in the system because there was not power by the courts to order
a 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 was
overbroad.
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. This
doctrine of disproportainalty requires the court to determine:
1) whether a law pursues a “legitimate interest” and if it does
2) whether the law is grossly disproportionate to the state interest
Arbitrary laws 47.17
 Chaoulii v Quebec ( AG) [2005]- a challenge was brought forth on Quebec’s
prohibition on the purchase of private health care insurance. The purpose was to
make public health care exclusive. On the issue of fundamental justice the court
was evenly divided. For McLachlin CJ and Major J ( writing with the agreement
Bastarache) the Quebec law prohibiting health insurance offended the principles
of 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 real
connection on the facts to the purpose the law is said to serve.” This was the case
here because evidence showed that other developed countries with universal
public health care plans permitted parallel access to private care without injury to
the public health care system.

25
Vague 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 law
offends two values that are fundamental to the legal system. First, the law does
not provide fair notice to persons of what is prohibited which makes it difficult for
them to comply with the law. Secondly the law does not provide clear standards
for 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 a
requirement of fundamental justice that a criminal offence be codified in stator
form. Although the elements of the common law offence were not as clear as
could be achieved in a statutory definition, the offence was neither vague nor
arbitrary”’
 R v Nova Scotia Pharmaceutial Society (1992)- the word “unduly” was attacked
under s7 on the ground that the word was unconstitutionally vague. This
argument 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 made
of it” were so vague that the offence was void for vagueness under s7.
a) standard of precision
what is the constitutional standard of precision that a law must meet in order to
avoid 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 least
useful.)However the SCC has employed in subsequent cases. Gontheir J- there is
no requirement that the law be “absolute certain” because no law can meet that
standard.
 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 courts
that found that s43 did not provide meaningful standards. The SCC ignored this
body of law and instead relied on expert evidence. “on the basis of expert
evidence”- so interpreted she held that s43 “sets real boundaries and delineates a
risk 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 criteria
for denying bail are vague and imprecise. s8 and s9 can be expected to be vague
as well.
Wrong Laws 47.19
 R v Gamble (1988)- the person was tried and convicted of murder and
imprisoned under laws that had been enacted. She should have been tried with
offences 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 prisoner
without the eligibility for parole was a breach of s7. A basic tenant of the legal
system is that” an accused must be tried and punished under the law in force at
the time the offence was committed. She was eligible to apply for parole
immediately.
Right to Silence 47.20
 R v Hebert (1990)- the accused had been arrested and advised of his right
counsel. He did retain counsel and advise the police he did not want to make a
statement. He then was placed in custody with an undercover cop to whom the
accused made an incriminating statement. SCC held-that the statement had been
obtained 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 it
was under s7 and not s10(b)(right to counsel) is because court took the right to
silence route. Note: If it was a voluntary statement to another prisoner or even an
undercover cop the result would have been different.
 R v Broyles (1991)- was another jailhouse confession. The accused made a
statement while in custody to a friend who visited him in the jail. The friend had
been recruited as police informer. The difference between Herbert and this case is
that it was a police informer. SCC held it was abreach to his right and the
statement 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 in
any proceeding and which makes the witness non-compellable if the true purpose
of 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 basis
detailing their daily catch of fish. Could these records be used in trial as evidence
against him? SCC held- there was no breach of s11(c) and no breach of s7
because in the context of the regulatory scheme to which the accused

26
had voluntarily submitted by engaging in the business of fishing fundamental
justice did not prove an immunity against the use of statutory compelled
information.
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 compelled
testimony used to incriminate him or her in a subsequent proceeding. This is
provided to a witness who testifies in any proceedings by s13 and to persons
other than witness by s7 –illustrated by R v White ( 1999)
b) “derivative use immunity”- which protects the witness from having the
compelled testimony used to obtain other evidence (derivative or secondary) to
incriminate him or her in a subsequent proceedings unless the derivate evidence
is 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 the
predominate purpose of obtaining evidence for the prosecution of the witness this
is illustrated in R v Jarvis ( 2002)
 R v White ( 1999)- whether reports made to police under the compulsion of a
provincial law could be used against the person reporting them. SCC held-
because the accident reports were provided under compulsion their admission
into evidence against the accused would violate a principle of fundamental justice
under s7 –a principle against self-incrimination. The court distinguished on the
grounds that driving is not freely undertaken in precisely the same way as one is
free 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 the
investigative phase-tax officials could not continue to use the audit power to
collect evidence for criminal prosecution. If more material was needed it would
have 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 47.21
a) 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’s
security of the person and made s7 applicable. Principles of fundamental justice
required a fair hearing be provided and that the parent be provided with state
funded representation.
 Winnipeg Child and Family Services v KLW ( 2000)- held that the warrantless
apprehension 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 which
would create a risk of harm to the child. The principles of fundamental justice
were 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 requesting
state has sufficient evidence. This process is a denial of liberty to the fugitive and
the hearing must conform to the principles of fundamental justice. The fugitive is
not entitled to a full-dress criminal trial because determination of guilt will be
dealt with later.
 extradition judge- all that s/he can do is determine whether the requesting
state has a prima facie case against the fugitive.
 fugitive is entitled- to know the case against her , she is not entitled to the full
disclosure 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 case
against 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 the
principles 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 going
over 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 witness
cannot 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 fact
the trial judge had been given a discretion to deny the use of a video tape or
screen 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 minsters
to issue the certificate declaring a non-citizen named in the certificate to be a
threat 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 nature
of the case against him. There was no hearing on the original issue. The judge
was also under obligation not to disclose to the name person the information upon
which the certificate had been based.
 SCC held that- the issue of the security certificate was a deprivation of liberty
under 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 denies
the named person the opportunity to know the case put against him or her and
hence 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 rationally
connected to the objective. But… the law failed the least dramatic means test
because Parliament could have adopted better procedures to protect secrecy that
were less intrusive on individuals rights.
 She pointed to a system of “special counsel” that had been used in Canada was
used in other countries in national security cases.
 She did not say this was the only way stating “precisely what is to be done is
for parliament to decide.”
b) Full answer and defence 47.21(b)
R v Seaboyer ( 1991)- SCC held- that both s7 and 11(d) guaranteed an accused
“the right to present full and answer and defence” and that this right was reduced
by a “rape shield” provision in the CC-which restricted the right of a person
charged with a sexual assult to cross examine the complainant about their past
sexual activity McLachlin J- this provision would occasionally have the effect of
excluding relevant evidence that was required to enable the accused to make full
answer 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 the
accsued’s right to make full answer and defence. SCC Held the Crown has
discretion as to the witness ( did not call victim) it chose to call and the accused
right to make full answer and defence was protected by his evidence the jury had
found the accused guilty. The argument that the accused would be surprised at
trial was rejected because of pre-trial right to full exposure. SCC acknowledged –
there might be rare cases where the suppression of potentially exculpatory
evidence 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 all
information 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 disclose
irrelevant information or privileged information. The crown retains discretion as to
the timing of disclosure, since premature disclosure could impede investigations.

28
d) Pre-trial disclosure by third parties
R v O’Conner ( 1995)
R v McClure ( 2001)
R v Brown ( 2002)
e) preservation of evidence
R v La ( 1997)
R v Carosella ( 1997)
f) statutory limits on pre trial disclosure
R v O’Conner ( 1995)
FAIR ADMINSTRIAVE PROCEDURES 47.22
BC 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 Rights
Constitution Act, 1982, s.15, s.28
Hogg, 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. 483
Remedies