Week 2 – January 13
Section 7 Fundamental Justice I
Cases: Motor Vehicle Reference, Canada v. PHS (Bedford)
One of the themes that is in s.7 and 15 is this notion of dialogue and it refers to a dialogue between the courts and the legislature its not a direct dialogue but
it’s the court indicating that the legislation is right or wrong and how they may fix the legislation. Courts generally take the position that it’s not their job to
legislate but they tell you if the legislation is working or not. An example of dialogue is in the Bedford case.
S.7 of the principles of Fundamental justice says everyone has the right to life liberty and security. This section of the charter guarantees everyone the right
to life liberty and security of the person against the government but it’s not an absolute right. S.7 has its own limitations(limiting clause). You can’t be
deprived of that right unless it’s in accordance with the principles of fundamental justice.
Any time you are put in jail you are deprived of your liberty but it doesn’t give you a constitutional right under s.7 to challenge it, you can only challenge if you
being put in jail doesn’t correspond with your rights to life liberty and security. First you need to show that your liberty, life and security is being compromised,
then show that its not in accordance with the principles of fundamental justice, then you have to go to s.1.
In motor vehicle how did the court interpret s.7?
In BC they made a law that said if you drive with a suspended license you automatically go to jail it didn’t matter if you knew the license was suspended or
not. It was an absolute liability offence; all the crown has to prove is that your license is suspended. Absolute liability offences remove an mens rea
requirement because you don’t you’re your license is suspended you don’t know that your breaking the law.
(mens reaguilty mind) (actus rea – guilty act) to be convicted of a crime they both need to be met. Absolute liability doesn’t incorporate the mens and actus
rea portion of commiting a crime. This case raises that issue and is very significant because it was decided 3 years after the charter and was an opportunity
for the SCC to indicate how seriously they were going to take the Charter. It is also an indication of the SCC being in power and taking the charter seriously
in taking down laws. Motor vehicle is important because of its findings but also because it reflected the courts position in taking down laws.
The principles of fundamental justice were declared what the court says it means. This is the first time that the courts had a chance to deal with this and they
spent a lot of time outlining what the principles are. At Para 23 they say that s.7 protects 3 distinct rights life, liberty(if your put in jail, and restrict it in other
ways) and security of a person (general term; doesn’t have to be decided in court but is considered an independent right).
What are these principles of fundamental justice?
p. 26 – not an idea of natural justice and is more then that. To figure out what they are the court says to look at the legal rights section 714 of the charter
which includes rights to be secure against search and seizure, right to have trial within a reasonable time etc. the court says that s.7 guarantees the rights
but s.814 is examples of how the state can violate those rights. Justice La Mer says s.814 allows us to unlock what s.7 means.
p.31 he declares what the principles of fundamental justice are. “They are to be found in the basic tenets of our legal system..charter itself” he said that the
principles of fundamental justice are things that courts have always recognized as part of what a fair and proper justice system, it is not parliaments duty to
make the principles but judges know better then anyone what the basic tenets of the justice system are and its their duty to declare what these principles
are. Judges decide what s.7 principles are.
para 65 – some rights are procedural (fair trials etc.) much of what is contained in s.7 is procedural but this is not to say that the pricinples are limited to
soley being procedural they are based on historical roots. It means that the charter s.7 is called a living tree and whats important about that is that they wont
state exactly what the principles are because they may change over time. As we learn more about laws and their effects and justice systems our concepts of
principles of fundamental justice may change so its better to decide their meaning for each case as they arrive. The court doesn’t want to set out what things
are without having a proper foundation and case to base them on. The court is saying that the principles will mean different things but it is their job to decide
what they mean.
In this case all they have to do is tell you if the idea of absolute liability is consistent with the principles of fundamental justice. Because the mens and actus
rea isn’t met at the same time it is not a criminal offence and in motor vehicle case this absolute liability makes you guilty of a criminal offence without the
mens rea it is not consistent with the principles of fundamental justice.
There are reasons why we have absolute liability offences in para 8485. Administratively easier to have absolute liability offence because its hard to prove
what people intended, and they can continue to use this with health and safety regulations etc. because it doesn’t lead to jail time as in criminal offences.
The B.C government tries to justify this law in s.1 by saying that they have a big problem with people driving with suspended licenses and its important for
safety. The court says the bottom line is that the risk of imprisonment of innocent people is not justified in a free and democratic society. The court didn’t strike down the law because it was never passed but it was significant because 3 years into the charter the SCC was making big
movements in striking laws down. It shows that they have more thought and reasoning towards laws then the legislation. The significance of this case is also
that the court said that they will tell the legislation what the principles of fundamental justice are because they know what they are and can comprehend
them better because they are judges. This means that s,7 have a substantive component to it which means that the court has the ability to determine if laws
are right or wrong and if they do or don’t violate the charter that politicans may not understand.
Some same principles are Motor vehicle. If the charter is a living tree does it mean that its okay for the court to change its mind? Are courts bound by the
decisions of the supreme court?
This is a test case that involved a number of people that were advocates of prostitution and wanted to challenge 3 laws of prostitution. Prostitution is legal in
Canada what Canada has legislated aspects of prostitution legal.
1. Keeping a common bawdy house – against the law to carry out acts of prostitution in particular location on a regular basis.
2. Living off the avails of prostitution – you are not a prostitute but you are getting money from someone who is (pimping). There are other people who
may live on the avails of prostitution like drivers or body guards are considered in this area. Anyone who is paid by a prostitute is considered living on
3. Communication of prostitution – this is aimed at street prostitution, it is against the law for a person to communicate that they wish to sell or buy sex.
This was a test case so they carefully found 3 people to bring this case. Each of the them testified at the hearing about their experiences with prostitution
and many experts were called. Justice himmel decided that these laws violated s.7 of the charter and were to be struck down. It was then appealed and the
court of appeal agreed with the superior court. It then went to the superior court of Canada.
Prostitution is a challenging issue to think about and their were a lot of interveners in the case with many different views.
There were two important preliminary issues that were important for the charter
1. The issue of stare decisis which means that you are bound by decisions of a higher court.
2. What weight do you give findings by the trial judge? In this case the judge who heard the evidence wrote conclusions of the impacts of prostitution,
how much weight should higher courts give to these conclusions?
The SCC had decided this issue in 1990 and were alleged to violate s.7 and they found that the laws were constitutional. Isn’t this a binding precedent?
Why should it change?
The court said at para .41 that when this was raised by the trial judge in 1990 she could revisit those issues because the legal issues they are dealing with
now are different from the previous issues. She also said that what the know about prostitution and the laws and the impacts of the laws are different and
understood and they know more about it now then before. The court said that a lower court is not entitled to ignore a binding precedent but their may be a
reason that they can and that’s if a new issue is raised or there is a change in the circumstances or the evidence. In 1990 the argument was that prostitution
laws prevented women from making money and their economic rights were challenged and in this case the challenge was that the laws were making life
dangerous for prostitutes and ties in with the other issue about evidence.
One of the major things that change between 1990 and 2010 was that tragically Canada became aware of what happened with Robert Pickton who preyed
on women who were street prostitutes and killed them. The reality of that situation was that many women were aboriginal led to apologies by the police, a
royal commission, and we are now aware a lot more about the impacts of these laws then we did before and creates a different basis of evidence and we
cant assume the decision in 1990 has to stand.
This goes back to the charter being a living tree and when things change you have to accommodate you cant ignore it because its already been dealt with.
The second issue is that if findings are binding upon upper courts they have to take those findings and take them into consideration. (listen to feed).
The SCC can look at evidence and come to their own conclusion usually and they said then when this sort of evidence is put before a judge the judge has to
weigh all that evidence based on the facts of the case and those findings have to be respected by higher courts because higher courts would have to hear
all the evidence again and because the social legislative facts are tied into facts that are directed to the case. Basically if you launch a charter case the
findings of the trial judge are binding as the case goes forward.
What are the s.7 rights that are violated?
Liberty – because you go to jail for not abiding by these laws. This is an issue because the people that may violate these laws are not always prostitutes and
it effects them as well. Para 58, 59, 60. The applicants are arguing that not only does it violate liberty is also violates their security. Security – prostitution is legal and these laws make it illegal and dangerous to practice prostitution. The applicants arguing that these laws heighten the risk
they face as prostitutes, which is a legal activity. The prohibitions do not impose conditions on how the operate and go a step further and impose dangerous
conditions, instead of safer ones.
The judge heard that people involved in prostitution are not allowed to do the activity safely because of the law and this is the main concern and made the
Sometimes living off the avails may be pimps but sometimes it can be people that can help them like drivers or body guards so it prevents them from having
any proper and safe guidelines to help them. The evidence shows th