Ref. Re Sect. 94(2) of Motor Vehicle Act (1985), 63 N.R. 266 (SCC)
MLB headnote and full text
In The Matter Of the Constitutional Question Act, R.S.B.C. 1979, c. 63 and
In The Matter Of the Reference Re Section 94(2) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, as amended by the Motor Vehicle Amendment Act, S.B.C. 1982, c. 36
(17590)
Indexed As: Reference Re Section 94(2) of the Motor Vehicle Act (B.C.)
Supreme Court of Canada
Dickson, C.J.C., Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ.
December 17, 1985.
Summary:
The British Columbia Motor Vehicle Act, R.S.B.C. 1979, c. 63, s. 94(1), provided that a person who drove while prohibited from driving or while his licence was suspended was guilty of an offence and liable to a fine and imprisonment. Section 94(2), as amended by S.B.C. 1982, c. 36, provided that s. 94(1) created an absolute liability offence in which guilt was established by proof of driving whether or not the driver knew of the prohibition or suspension. The Attorney General of British Columbia pursuant to s. 1 of the Constitutional Question Act (B.C.), asked the British Columbia Court of Appeal to determine whether s. 94(2) was consistent with the Canadian Charter of Rights and Freedoms.
The British Columbia Court of Appeal, in a decision reported [1983] 3 W.W.R. 756; 42 B.C.L.R. 364; 147 D.L.R.(3rd) 539; 4 C.C.C.(3d) 243; 33 C.R.(3d) 22; 5 C.R.R. 148; 19 M.V.R. 63, held that s. 94(2) was inconsistent with the Charter. The Attorney General appealed.
The Supreme Court of Canada dismissed the appeal.
Civil Rights – Topic 686
Liberty – Principles of fundamental justice – Deprivation of – What constitutes – The Supreme Court of Canada held that absolute liability offences combined with the penalty of imprisonment violate the right to liberty other than in accordance with the principles of fundamental justice contrary to s. 7 of the Canadian Charter of Rights and Freedoms.
Civil Rights – Topic 726
Liberty – Charter – Denial of liberty – What constitutes – The Supreme Court of Canada held that absolute liability offences combined with the penalty of imprisonment violate the right to liberty other than in accordance with the principles of fundamental justice contrary to s. 7 of the Canadian Charter of Rights and Freedoms.
Civil Rights – Topic 768
Liberty – Offences – Absolute liability – Validity – The Supreme Court of Canada held that absolute liability offences combined with the penalty of imprisonment violate the right to liberty other than in accordance with the principles of fundamental justice contrary s. 7 of the Canadian Charter of Rights and Freedoms – The court, however, disagreed with the proposition that absolute liability offences per se violate s. 7.
Civil Rights – Topic 768
Liberty – Offences – Absolute liability – Validity – Motor Vehicle Act (B.C.), s. 94(2) – S. 94(1) provided that a person who drove while prohibited from driving or while his licence was suspended was guilty of an offence and liable to a fine and imprisonment – S. 94(2) provided that s. 94(1) created an absolute liability offence in which guilt was established by driving, whether or not the driver knew of the prohibition or suspension – The Supreme Court of Canada affirmed that s. 94(2) was inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms (right not to be deprived of liberty except in accordance with the principles of fundamental justice).
Civil Rights – Topic 8348
Charter – Applications – Exceptions – Reasonable limits prescribed by law (Charter, s. 1) – The Motor Vehicle Act (B.C.), s. 94(1), provided that a person who drove while prohibited from driving or while his licence was suspended was guilty of an offence and liable to a fine and imprisonment – S. 94(2) provided that s. 94(1) created an absolute liability offence in which guilt was established by driving, whether or not the driver knew of the prohibition or suspension – The Supreme Court of Canada affirmed that s. 94(2) was inconsistent with s. 7 of the Charter (right not to be deprived of liberty except in accordance with the principles of fundamental justice) – The court held further that s. 94(2) could not be saved under s. 1 of the Charter.
Civil Rights – Topic 8348
Charter – Application – Exceptions – Reasonable limits prescribed by law – (Charter, s. 1) – The Supreme Court of Canada stated that the combination of imprisonment and absolute liability violated s. 7 of the Charter – See paragraph 78 – The court stated “section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as national disasters, the outbreak of war, epidemics, and the like” – See paragraph 86 – Wilson, J., held that a law which violated a person’s right to liberty could not be saved by s. 1 – See paragraph 120.
Civil Rights – Topic 8461
Canadian Charter of Rights and Freedoms – Interpretation – General – The Supreme Court of Canada discussed generally the nature of constitutional adjudication under the Charter – See paragraphs 7 to 22.
Civil Rights – Topic 8467
Charter – Interpretation – Interrelationship among Charter rights – ss. 7 to 14 – The Supreme Court of Canada held that ss. 8 to 14 of the Charter provide an invaluable key to the meaning of the phrase “principles of fundamental justice” (s. 7) – The Court stated that s. 7 should not be interpreted more narrowly then the rights in ss. 8 to 14 – The Court stated that ss. 7 to 14 could have been fused into one section with the words “and without limiting the generality of the foregoing” inserted at the end of s. 7 before ss. 8 to 14 – See paragraphs 26 to 34, 65 – Wilson, J., disagreed that ss. 8 to 14 shed much light on the interpretation of s. 7 – See paragraph 122.
Civil Rights – Topic 8469
Charter – Interpretation – United States experience – The Supreme Court of Canada, when discussing whether the phrase “principles of fundamental justice” had a substantive aspect, cautioned that the substantive/procedural dichotomy is largely based on the American experience with respect to procedural due process – The Court distinguished the Charter from the American Constitution and stated that this distinction must not be ignored when considering the procedural versus the substantive issue – See paragraph 18.
Civil Rights – Topic 8474
Charter – Interpretation – Precedent – Bill of Rights cases – The Supreme Court of Canada held that a judicial interpretation of the phrase “principles of fundamental justice” as it appeared in s. 2(e) of the Canadian Bill of Rights was of little assistance in interpreting the same phrase in s. 7 of the Charter – See paragraphs 55 to 59.
Civil Rights – Topic 8547
Charter – Interpretation – Particular phrases – Principles of fundamental justice – The Supreme Court of Canada discussed the scope of the phrase “principles of fundamental justice” as it appeared in s. 7 of the Charter – See paragraphs 23 to 69, 100, 123 to 126.
Civil Rights – Topic 8547
Charter – Interpretation – Particular phrases – Principles of fundamental justice – The Canadian Charter of Rights and Freedoms, s. 7, provided that 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 – The Supreme Court of Canada stated that “the term ‘principles of fundamental justice’ is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameter of that right” – See paragraph 63 – Wilson, J., disagreed with this proposition – See paragraph 105.
Civil Rights – Topic 8547
Interpretation – Particular phrases – Principles of fundamental justice – The Supreme Court of Canada stated that “it would be wrong to interpret the term ‘fundamental justice’ [Charter, s. 7] as being synonymous with natural justice …” – The court held that such an interpretation would give the phrase “fundamental justice” too narrow a meaning – See paragraphs 26 to 34, 100.
Civil Rights – Topic 8547
Charter – Interpretation – Particular phrases – Principles of fundamental justice – The Supreme Court of Canada held that the phrase “principles of fundamental justice” as used in s. 7 of the Charter involved more than natural justice (which is largely procedural) and included a substantive element as well – See paragraphs 23 to 24, 100, 124, 125.
Civil Rights – Topic 8590
Charter – Practice – Evidence and proof – Admissibility and weight of Senate Committee Minutes re interpretation of Charter – The Supreme Court of Canada held that the Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada were admissible as extrinsic aids to the interpretation of Charter provisions – The court concluded, however, that such materials should not be given anything but minimal weight – See paragraphs 39 to 54.
Motor Vehicles – Topic 4165
Offences – Intent or mens rea – Offences of absolute liability – Motor Vehicle Act (B.C.), s. 94(2) – S. 94(1) provided that a person who drove while prohibited from driving or while his licence was suspended was guilty of an offence and liable to a fine and imprisonment – S. 94(2) provided that s. 94(1) created an absolute liability offence in which guilt was established by driving, whether or not the driver knew of the prohibition or suspension – The Supreme Court of Canada affirmed that s. 94(2) was inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms (right not to be deprived of liberty except in accordance with the principles of fundamental justice) – The court held further that s. 94(2) could be saved under s. 1 of the Charter.
Statutes – Topic 1651
Interpretation – Extrinsic aids – Legislative history – Minutes of Joint Committee of Senate and House of Commons – The Supreme Court of Canada held that the Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the constitution of Canada were admissible as extrinsic aids to the interpretation of the Canadian Charter of Rights and Freedoms – The court concluded, however, that such material should not be given anything but minimal weight – See paragraphs 39 to 54.
Words and Phrases
Principles of fundamental justice
– The Supreme Court of Canada discussed the meaning of this phrase as it appeared in s. 7 of the Canadian Charter of Rights and Freedoms – See paragraphs 23 to 69, 100, 123 to 126.
Cases Noticed:
R. v. City of Sault Ste-Marie, [1978] 2 S.C.R. 1299; 21 N.R. 295; 40 C.C.C.(2d) 353; 85 D.L.R.(3d) 161; 3 C.R.(3d) 30, consd. [paras. 8, 73, 93].
Amax Potash Ltd. et al. v. Province of Saskatchewan, [1977] 2 S.C.R. 576; 11 N.R. 222, refd to. [para. 14].
R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 20].
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161, consd. [paras. 21, 22, 24, 60].
Curr v. R., [1972] S.C.R. 889, refd to. [para. 21].
Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, consd. [para. 22].
R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, consd. [paras. 22, 56].
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, consd. [paras. 23, 57].
R. v. Cadeddu (1982), 40 O.R.(2d) 128 (H.C.), refd to. [para. 25].
Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321; 11 C.C.C.(3d) 481; 9 D.L.R.(4th) 161, consd. [paras. 26, 28, 54, 60].
Latham v. Solicitor General of Canada (1984), 39 C.R.(3d) 78 (Fed. T.D.), refd. to. [para. 35].
Re Mason; Mason v. R. in right of Canada (1983), 35 C.R.(3d) 393 (Ont. H.C.), refd to. [para. 35].
R. v. Holman (1982), 28 C.R.(3d) 378 (B.C. Prov. C.), refd to. [para. 35].
Gosselin v. R. (1903), 33 S.C.R. 255, refd to. [para. 39].
Reference Re Validity of Wartime Leasehold Regulations, [1950] S.C.R. 124, refd to. [para. 39].
Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; 53 N.R. 268; 47 Nfld. & P.E.I.R. 125; 139 A.P.R. 125, consd. [paras. 40, 42, 49, 51].
Reference re Anti-inflation Act, [1976] 2 S.C.R. 373; 9 N.R. 541, refd to. [para. 41].
Reference re Residential Tenancies Act 1979, [1981] 1 S.C.R. 714; 37 N.R. 158, refd to. [paras. 42, 51].
Re Authority of Parliament in relation to the Upper House Reference, [1980] 1 S.C.R. 54, refd to. [para. 45].
Canadian National Transportation Limited and Canadian National Railway Company v. Attorney General of Canada, [1983] 2 S.C.R. 206; 49 N.R. 241, refd to. [para. 46].
Duke v. R., [1972] S.C.R. 917, not appld. [paras. 55, 58].
McNabb v. U.S. (1942), 318 U.S. 332, refd to. [para. 66].
Harding v. Price, [1948] 1 K.B. 695, refd to. [para. 72].
Beaver v. R., [1957] S.C.R. 531, refd to. [para. 73].
R. v. MacDougall, [1982] 2 S.C.R. 605; 44 N.R. 560, consd. [paras. 91 to 94].
Proprietary Articles Trade Association and others v. Attorney General for Canada and others, [1931] A.C. 310, refd to. [para. 116].
R. v. Pierce Fisheries Ltd. (1970), 5 C.C.C. 193, refd to. [para. 117].
Statutes Noticed:
Canadian Bill of Rights, R.S.C. 1970, App. III, preamble [para. 30]; sect. 1(a) [para. 55]; sect. 2(e) [paras. 55, 58].
Canadian Charter of Rights and Freedoms, preamble [paras. 30, 124]; sect. 1 [paras. 78 to 99; 102 to 107; 120 to 122]; sect. 7 [paras. 12, 122]; sect. 8, sect. 9, sect. 10, sect. 11, sect. 12, sect. 13, sect. 14 [paras. 26 to 34, 123].
Motor Vehicle Act, R.S.B.C. 1979, c. 63, sect. 94(1), sect. 94(2) as amended by Motor Vehicle Amendment Act, S.B.C. 1982, c. 36.
Authors and Works Noticed:
Allen, Legal Duties (1931), p. 239 [para. 114].
Archbold’s Criminal Pleading, Evidence and Practice (30th Ed. 1938), p. 900 [para. 114].
Blackstone, Commentaries on the Laws of England (17th Ed. 1830), pp. 53, 57 [para. 114].
Holdsworth, A History of English Law (1923-1938), vol. II, p. 50 et seq. [para. 113].
Kenny’s Outlines of Criminal Law (1952), pp. 4 [para. 116]; 22, 23 [para. 114].
Law Reform Commission (Canada), Working Paper II – Imprisonment and Release (Studies on Imprisonment, 1976), p. 10 [para. 128].
Laskin, Canadian Constitutional Law (3rd Ed. 1969), p. 85 [para. 12].
Lederman, Courts and the Canadian Constitution (1966), p. 186 [para. 12].
Magnet, Presumption of Constitutionality (1980), 18 Osg. Hall J. 87, p. 99 [para. 50].
Walker, Nigel, Sentencing in a Rational Society (1969) [para. 127].
Williams, Glanville, Criminal Law, The General Part (2nd Ed. 1961), p. 30 [para. 71].
Counsel:
Allan Stewart, Q.C., for the appellant, Attorney General of British Columbia;
Graham R. Garton, for the Attorney General of Canada;
Ian MacDonnell and M.D. Lepofsky, for the Attorney General for Ontario;
Andrew Petter and James MacPherson, for the Attorney General of Saskatchewan;
William Henkel, Q.C., and D.W. Kinloch, for the Attorney General of Alberta;
Charles Stein, for the respondent;
J.J. Camp and P.G. Foy, for the Intervener British Columbia Branch, Canadian Bar Association.
This appeal was heard on November 15, 1984, before Dickson, C.J.C, Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ., of the Supreme Court of Canada. The decision of the Supreme Court of Canada was rendered on December 17, 1985, and the following opinions were filed:
Lamer, J. – see paragraphs 1 to 99;
McIntyre, J. (concurring in separate reasons) – see paragraphs 100, 101;
Wilson, J. (concurring in separate reasons) – see paragraphs 102 to 132);
Dickson, C.J.C., Beetz, Chouinard and Le Dain, JJ., concurred with Lamer, J.
