Fundamental Justice

s7 – the right not to be deprived of life liberty security of the person except in
accordance with prinicples fundamental of justice
-heads off group of “legal rights” (ss7-14)
-if fundl justice complied with --> no breach'

Bill of Rights – wider scope – property (s1(a)) and fair hearing for determination of
rights and obligations (s2(e))

Benefit
“everyone” in the context of s7 does not include a coporation (Irwin Toy)
(But a Corporation can invoke s7 as a defence to a crminal prosecution by arguing
the law would offend s7 in its application to inidividuals – even if the defect is not
relevant to corporations eg.liberty)

“everyone” includes illegal immigrants in Canada (Singh v Min Immi)

− every human being who is physically present in Canada and by virtue of that
presence subject to its laws
− Court didnt care about the consequences -> refugee claimant has a right to a
hearing before an official / tribunal -> caused delays – but admin / utilitarian
reasons cannot vitiate individual rights

“everyone” does not include a foetus (R v Morgenthaler)

Burden
applies only to govt action as defined by s32 Charter

Life
excessive waiting in public health care system -> incr possibility of death =
violation of right to life

Liberty
depriv of liberty – fund justice reqd
any law that imposes penalty of imprisonment whether mandatory or not =
deprivation of liberty and must be in accord w/ fundl justice
stat duty to submit to fingerprinting; produce documents
or to not loiter around schools etc

not a depriv of liberty– no fund justice reqd:

if only a fine can be imposed
susp of drivers license
deportation of non-citizen (because no actual right to enter / remain in Can)

criminals in prison:
Cunningham v Canada – def sentenced to 12 years for mansl parole laws changed
allowing for condl release to be revoked = depriv of liberty (even though on
release he would be under supervision) but not a breach bc the new law complied
w/ fundl justice.
May v Ferndale – transfer from min to med security prison = deprivation of
residual liberty therefore fundl justice reqd – in this case failure to disclose info for
reasons for transfer = not a breach bc not sufficiently important – although
transfer held to be unlawful for other reasn -

beyond physical retraint-

Blencoe v BC – s7 applies wherever the law prevents a person from making fundl
peronal choices – but not a solid ruling – this case was about the effect of undue
delay in an HRC compl against B

-does not include economic liberty or right to work

Security of the Person

-reasonable force by way of correction (Youth and the Law case)
-heath risks of not having access to abortion; (Morgentaler)
also loss of a woman's control over termination of the pregnancy – implying
personal autonomy w/ respect to medical treatment (Morgentaler)
-excessive wait times for medical care – casuing unnecessary pain (Chaoulli)
-control over one's body (Rodriguez)
-removing children and placing them under wardship of the state affects sec of
person of the parent (NB v G(J))
-state induced psych stress (Blencoe)

(In the case of NB vG(J) – s7 applied and so fundl justice had to be afforded which
meant the state had to provide counsel to the parent whose children taken away
by the State)
-fund justice can soeties be satisfied by post -apprehension hearing (Winnipeg
Child Services v LW)

does not include rights that are wholly unconnected with the administration of
justice and does not impose a positive duty on govt to provide sec of the person

Property – deliberately ommitted

-means no guarnatee of compensatin or even fair procedures for taking of
property by govt
-no guarantee for purely economic interests
-and is the reason that the other 3 should be interpreted as economic liberty and
security

What are the “Principles of Fundl Justice”?: (listed in purple)

-rules of natural justice are procedural : a hearing, unbiased adjudication and fair
procedure
-but also covers substantice injustice (BC MV Reference)

Test for when a rule = princip of fundl justice:

1. the rule must be a legal principle
2. there must be signif societal consensus that it is fundl to the way the legal
 system ought fairly to operate
3. the rule must be identified w/ sufftt precisionto yield a manageable
standard
(- Malmo-Levine)

In Malmo-Levine – this test was applied to the “harm principle” and the court held
it did not satisfy any element of the test – in other words Palrt did not have to
show a risk of harm to others to impose a sentence of imprisonment for crimes
-but by the same token a law could not prohib marijuana w/o prov an exemption
for those who reqd it for therapeutic purposes – absolute prohib that threatened
health = breach of princips of fundl justice (R v Parker)
-and then further challenge to the new law that did allow for medical marijuana –
on the basis that it barred any avenue to legally obtaining it – this was held to be
in breach of the fundl justice principle that the state must obey and promote
compiance with the law (Hitzig v Canada).

-ss 11 and 12 do not apply to charges / punishments under foreign law -but s7
would be breached by extradition if the fugitive faced a punishment under foreign
law that would “shock the conscience” or be “simply unacceptable” (Can. v
Schmidt)
(note long (15-20 yr) mandatory sentences do not meet this criteria – even
though 7 yr min sent for sim offence in Can = cruel and unusual)

Residuary Theory
-SCC applies residuary theory of s7 to grant a right in circumstances that do not
fit within a more specific Charter guarntee:
eg. s11(c) gurantee of trial w/in a reasonable time – does not apply to pre-charge
delay or appellate delay – but SCC has held that delay at either end may afford a
remedy under s7

ie s7 may add additional content to ss8-14 (by application of “principles of

fundamental justice” which have not been precisely defined “basic tenets of the
legal system”)
Hogg: uncertainty - this means judges can rewrite ss8-14
Thomson Newspapers – added the following content to ss 11(c) and 13:
-right to remain silent
-right not to give an incriminating answer
-right to have all evidence from compelled tesitimony excluded from future
proceedings
(while L'H-Dub held there was no right to be added to s11(c) and 13

Absolute and Strict Liability

3 types of offence
1. Absolute liability – no fault or negligence reqt – simply doing the prohibited
act – even if D had no intention of breaking the law and exercised
 reasonable care to avoid doing so.
2. Strict liability – lack of reasonable care – simply doing the prohibited act -
but due diligence is a defence on balance of probabilities
3. Mens rea – offence requires pohibited act + guilty intent of intending to
break the law (or reckless as to whether or not they would do so)

Absolute Liability
= denial of principles of fundl justice (BC MVAct Reference)

BC MV Act Reference – absolute liab offence to drive while lic susp – since it
carried a term of imprisonment and denied fund justice = viol of s7 and
therefore of no force or effect
R v Hess – statutory rape prov of CC – absolute laib for having sex w/minor (under
14) – whether the accued knew age or not – carried penalty of imprisonment –
SCC foll BC MVAct ref finding abol liab offnece that carried imprisonment penalty
= breach of s7 – but law was not struck down – deleting the words “whether or
not he believes she is 14 or more” removed the absolute liability.

R v Pontes – although MV Act contained absol liab offence and an imprisonment

penalty it was saved by provision that notiwthstanding any penalties in the Act -
no person is liable to imprisonment for an absolute liability offence

presumption will be of strict liability even if only penalty is a fine.

remedial options for s7 violation:

strike down the offence
read defence of due diligence into the offence (ie interpret as strict liability
offence)
apply severence to convert into offence of mens rea (R v Hess)
apply severence to eliminate imprisonment option (R v Pontes)

Strict Liability Offences

“regulatory offences” (even w/ imprisonment penalty) – fundamental justice does
not require mens rea element
enough that due diligence defence is available and the burden of proof on
the accused is on the bal of prob

but for “true crimes” - fundamental justice requires mens rea element and the
burden of proof is on the Crown, BRD

Wholesale Travel – accused of mislead ads under Comp Act – SCC: mislead ads
not a “true crime” but a “reguatory offence” or “public welfare offence” - so not
unconstitutional to premise it on negligence – no moral blameworthiness
necessary – (even though it carried imprisonment of up to 5 yrs)

R v Finlay – storing firearm in a careless manner offence – w/imprisonment

penalties – the Court following R v Hundal held that in some cases negligence
can be sufft basis for fault reqt in s7. In that case for instance it was because the
offence did not have sufft stigma to require subj mens rea.

Summary:
offences that carry imprisonment must have a fault element
“true crime” --> there must be an element of subjective fault
“regulatory offence” -->negligence is sufft

Murder: s7 requires there be mens rea with respect to death (R v Vaillancourt)

s7 also requires that the mens rea is subjective (R v Martineau)
also applies to:
attempted murder (R v Logan)
war crimes / crimes against humanity outside Can.

Unforeseen Consequences
R v De Sousa – accused in fight glass shattered and injured bystander – neithr
intended nor foresaw that consequence – charged with unlawfully causing bodily
harm – carries imprison up to 10 yrs – so s7 invoked – SCC: word “unalwfully”
indicated the reqd intent (that which accompanied the statutory offence)
-no constitutioal reqt of intention, either objective/subjective, extends to the
consequences of an unlawful act in general.

R v Creighton – SCC upheld CC reqt of objective foresight of bodily harm as the

mental reqiorement for unalwful act manslaughter (the court did not require
foresight of the death – even though the max penalty was life imprisonment)

Automatism
*voluntariness is a principle of fundamental justice protected by s7 --> atleast for
all offences that carry penalty of imprisonment
-any attempt to abolish or restrict this defence is threrfore uncostitutioal and
would have to be justifed under s1.
sleepwalking – (R v Parks)
psychological blow – (R v Stone)
(too limit it a little – Bastarache J held it should have to be proved by the defence
on the bal of prob)

Duress
CC s17 – excuse for offence – where threats of immediate death or bodily harm
from a person who is present when offence committed. R v Ruzic – SCC: struck
down immeidacy and presence reqts bc s7 reqd a person not be convicted of a
crime for an involuntary act

Intoxication
R v Daviault – SCC held s7 req extreme intox to be a defence to a crim charge –
sex assault drank so much could have been in an automatism-like state – to
eliminate the mental reqt from the crime = breach of s7
-Court held onus on accused on bal of prob to show extreme intox.
but parlt enacted an amendment making self-induced extreme intox a marked
departure from the standard of reasonable care – and thereby constituting the
fault reqt for violent offences. (s33.1CC)
Hogg: this is still offensive for the same reason the CL rule was struckk down in R
v Daviault
+ would have to be upheld under s1 if it was challenged

-intox is a defence to specific intent offences

-R v MacAskill – SCC reqd the accused was so intoxd that he was incapable of
forming the specific intent - but in R v Robinson – this offended s 7 and s11(d) –
accused could be convicted even if reasonable doubt that he in fact possessed the
intent

Overbroad Laws
R v Heywood – when a law is broader than necessary to accomplish its purpose
overbreadth = breach of fund justice --> therefore if law that affects life liberty or
security of the person is overbroad then = unconsititutional
Disprorotionate Laws
Malmo-Levine – disprop = breach fo princip of fundl justice
1. does the law pursue a legit state interest
2. is the law grossly disprop to the state interest

Arbitrary laws
Chaoulli – was the prohibition on the purchase of private health care insurance a
breach of the principles of fundl justice?
in half the court's opinion it was “arbitrary” = lacks a real connection on the facts
to the purpose the law is said to serve = this is a breach of fundl justice

Void for Vagueness

violates 2 fudnl justice principles:
-does not provide fair notice of what is prohibited
-does not provide clear standards for those enforcing the law --> may lead to
arbitrary enforcement
Prsotitution Reference – broad and vague law but it was not so vague that “a
court could not give sensible meaning to its terms”
United Nurses – not too vague just because the law wasnt codified

standard of precision: intelligibility; delineates an area of risk; adequate basis for

legal debate

application to other Charter rights:

R v Morales – applied doctrine vagueness to s11(e) – no just cause for denying
bail if statutory criteria for denying bail too vague
-so vagueness appllies to any Charter right that carries an implicit reqt that laws
not be too vague
*and of course s1 can never be satisfied if a law is vague

wrong laws: R v Gamble – covicted under new version of the law – contd detention
of prisoner w/o eligiblility for parole = breach of s7 and princip of fundl justice was
that an accused be tried and punished under the law in force at the time of the
offence

Right to silence (R v Herbert – undercover tried t subvert accused's election to

remain silent by tricking him = breach and statement excluded)

R v Osmar - but mere fact of trickery by police does not envoke right to silence
(accused confessing t gangster (really cops) not being coerced (in this case he
was not yet arrested as the accused in Herbert was)

-ultimate question : did the accused exercise free will in making the statement?

statutory compulsion to give testimony = deprivation of liberty under s7 --> gives

rise to the right against self-incrimination which is a princip of fundl justice
gives rise to 3 difft inds of immunity:
1. “use immunity” protects witnesses from having compelled testimony used
against them
2. “derivative use immunity” protects witness from having compelled
testimony used to obtain other evidence agaisnt them (unless that evidence
is discoverable anyway) and
3. constitutional exemption from testifying if purpose is to obtain evidence for
prosecution of the witness

“Fair Trial” includes:

fair trial is also guaranteed by s 11(d) but there it only applies to crim offences –
s7 provides the same right in relation to civil and administrative proceedings
where the s7 rights are affected.

Charkoui v Can. - process for issue of security certificates – decl that non citizen is
a threat to natl security – named person never knew case against them therefore
not able to challenge the case = not a fair hearing and breach of fundl justice

full answer and defence ( R v Cook – right to make full answer and defence
protected by his right to crossX witnesses the Crown did choose to call and upon
whose evidence the jury found him guilty)

pre-trial disclosure by the Crown – R v Stinchcombe – all information relevant to

accused's case (but only where innocence is still an issue is the standard this
high: May v Ferndale)
w/o which they may be impaired from making a full answer and defence.

pretrial disclosure by 3rd parties – defence must apply for a disclosure order; and
est on bal of prob that the records are “likely relevant” to making full answer and
defence. Then judge privately inspects them to determine whether disclosure
order should be made. This is based on 5 factors: see 47.21(d)
Sol-client privilege – innocence at stake test:
1. judge determines whether evidence could raise a reasonable doubt as to
guilt;
2. then the jdge inspects the evidence to see if it would likely do so.
-R v McClure