CENTENNIAL LECTURES Chapter 3 Fairness after the Charter

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CENTENNIAL LECTURES Chapter 3 Fairness after the Charter
CENTENNIAL
LECTURES
Chapter 3
Fairness after the Charter
These materials were prepared by A. Wayne MacKay,
Faculty of Law, Dalhousie University, for
Continuing Legal Education, October 1983.
I
INTRODUCTION
On
at least a short term basis the Charter of Rights and Freedomsl has
made a significant dent in the Canadian legal landscape. 2
Not only has it
produced a veritable cottage industry for both practicing lawyers and legal
academics - it has raised some of the most fundamental questions about
which institutions should shape public policy in Canada.
The courts have a
bold new mandate to measure the acts of both legislative and the executive
branches of government, against the new standards of the Charter.
When
government agencies are found wanting, they are to be checked and their
legal actions invalidated.
The cruise missile case is the most vivid
example of the new role courts are being asked to play.3
In some respects
the supremacy of Parliament in relation to matters of human rights, is
dead. 4
It is still too early to tell whether there will be a net improvement
in the protection of rights as a result of the Charter. 5
There will
undoubtedly be changes in the institutions of lawyering and judging and
these are already becoming apparent.
increased emphasis on public law.
Another observable result is an
This causes the traditional bastions of
private law to demonstrate mixed reactions of envy and concern.
The move
towards public law as opposed to private law predates the Charter but has
been accentuated by it. 6
Section 7 of the Charter raises the most intriguing and exciting
questions of the provisions of the Charter which are presently in effect.
This section states:
2
Everyone has· the right to life, liberty and security of
the person and the right not to be deprived thereof
except in accordance with tIle principles of fundamental
justice.
The section bristles with basic legal questions.
[1]
What is meant by "fundamental justice"?
[2]
Are there affirmative rights to life, liberty and
security of the person?
[3]
What is the line between a reasonable limit on these
rights and an unconstitutional deprivation of them?
[4]
Could an action contrary to "fundamental justice" ever
be justified as reasonable in a "free and democratic
society"?
[5]
How does the constitutional concept of "fundamental
justice" fit with the existing common law doctrines of
natural justice and fairness?
The purpose of this paper is primarily to address the last question
but in doing so the preceding questions must be examined as well,
One of
the unique features of the Canadian Charter is that it has to be
superimposed on a pre-existing legal structure.
It was adopted not as many
such documents are at the birth of the nation, but rather at a stage of
considerable national maturity.
The problems implicit in this
superimposition are amply displayed in an investigation of post Charter
fairness.
Considering section 7 in the context of the existing legal framework
raises a host of important practical questions for lawyers.
What is the
impact of section 7 on the existing law about fair procedures in
administrative law?
Does it simply "constitut1onalize" natural justice and
fairness and if so does this change anything?
Does it add a third category
of procedural rights, if indeed, there are two at the present time?
What
3
impact does it have on the range oE interests which
protections?
attr~ct
procedural
lfuat are the standing and remedial implications of making a
constitutional claim to "fundamental justice" as opposed to a common law
claim for faIrness?
At this early stage in Charter jurisprudence it would be both
presumptuous and unwise to venture definitive answers to these many
questions.
However, there is value in addressing the questions so lawyers
can assist the judges in venturing some answers.
Before attempting to
address any of these questions however, it is desirable to consider the
pre-Charter evolution of fair procedures.
The judicial invasion of the
traditional legislative domain began not with the Charter, but with the
evolution of fairness which mandates and defines the proper procedures for
administrative as well as judicial bodies. 7
II
PRE-CHARTER EVOLUTION OF FAIRNESS - The Traditional Legal Framework
for Fair Procedures
In legal terms fairness is a doctrine concerned primarily with proce-
dures.
Like much of our common law heritage it is British in origin.
The
important point is that it has been a procedural doctrine and not a
substantive one.
It is hoped that a decision made by following fair
procedures will be a substantively better decision; howe.ver, this link has
not been expanded into a doctrine of substantive due process as has
developed in the United States.
There are signs that the lines between
procedural and substantive review have recently been blurred by a broad
interpretation of fairness. 8
Procedures are the focus but there is a neW
4
policy role for the courts which allows them to consider at least
indirectly, the merits of a decision--formerly a matter exclusively within
the legislative domain. 9
Fairness as a procedural term is new; the classical common law
terminology is natural justice.
it might at first appear.
This latter phrase is not as expansive as
It does not incorporate the divine overtones of
natural law but is a specific procedural doctrine.
with two branches.
It is a single rule
Before a person's rights are affected he or she has the
right to be heard before an unbiased decision-maker.
Most cases examine
the threshold and content of hearing rights but there are also cases on the
meaning and application of the bias rule. IO
Professor John Willis has described administrative law as a
theological subject. 11
Historically, there are religious overtones to the
concept of natural justice.
At least one commentator suggests that God
gave Adam and Eve the first hearing, before He expelled them from the
Garden of Eden. 12 The right to a hearing is at the foundation of the
British concept of justice and a fudamental value in the Anglo-Canadian
legal system.
waived
The rule against bias appears less deep rooted as it can be
or pre-empted by statute.
Natural justice has been described as
the common law equivalent of American due process. l3
The veracity of this
assertion will be tested by exploring whether the protection of rights can
best be achieved by COmmon law or constitutional devices.
This will be a
theme which runs throughout this paper.
The explosion of administrative agencies is a recent phenomenon.
Natural justice arose in an environment inhabited by courts and a few
S
tribunals which also tended to act in a judicial fashion.
Thus it should
not be surprising that natural jOlstice was linked with the exercise of
judicial functions.
Administrative or executive decisions were considered
immune from the rules of natural justice. l4
Such an approach is a logical
extension to the principle of supremacy of Parliament.
How can judicial decision-making be distinguished from administrative?
Administrative boards can act judicially; courts do not have a
monopoly on such conduct.
act in a judicial fashion.
at different times.
However, there are many tribunals which do not
Tribunals can also act in different capacities
A single municipal councilor housing authority may
act legislatively, administratively or judicially at different times.
Dickson J. speaking for the Supreme Court of Canada, in Minister of
National Revenue v. Coopers and Lybrand,lS identifies the following factors
as relevant to the labelling of functions.
It is possible, I think, to formulate several criteria
for determining whether a decision or order is one
required by law to be made on a judicial or quasijudicial basis. The list is not intended to be
exhaustive.
(1) Is there anything in the language in which the
function is conferred or in the general context in
which it is exercised which suggests that a
hearing is contemplated before a decision is
reached?
(2) Does the decision or order directly or indirectly
affect the rights and obligations of persons?
(3) Is the adversary process involved?
(4) Is there an obligation to apply substantive rules
to many individual cases rather than, for example,
the obligation to implement social and economic
policy in a broad sense?
The application of legal rules or standards and the existence of a lis
inter partes are the hallmarks of judicial action.
The landmark decision
6
of Ridge v. Ba1dwin16 advocated a focus upon whether rights are affected,
rather than upon the nature of the tribunal.
This case expanded the cate-
gory of judicial action but has not been followed consistently.
Creating
rights rather than determining their scope has been described as a classic
legislative function. 17
Pursuit of a broad policy objective that affects
many people is usually labelled as administrative action. 18
Expropriation
is one common example of a government function considered to be
administrative in nature.
Procedural rights used to depend upon convincing
a court to apply the desired 1abel. 19
proposition.
It was an all or nothing
Many decisions were considered administrative rather than
judicial action because of their broad impact.
This all or nothing phenomenon extended not only to the threshold
application of natural justice, but also to its content.
Since procedutal
protections were applied only to judicial bodies, the procedures were
adjudicative and court-like.
Powers Procedure Act, 1971. 20
This view was codified in the Statutory
Notice, rights to counsel, cross-examination
and disclosure were usually part of this procedural content.
Some rights
such as notice are so basic as to apply to all decision makers 21 but others
such as cross examination may not be appropriate for mass adjudication or
broad policy implemenation.
A bias towards court style procedures
continued in spite of the line of cases led by Ridge v. Baldwin,22 which
called for a more flexible application of natural justice, with the content
of procedures tailored to the individual board.
Had the courts taken this
flexible and expansive approach to natural justice, there would have been
no need for a new doctrine of procedural fairness.
7
Like its predecessor natural justice, the concept of fairness Was icrported to Canada from the United Kingdom.
Judges had long accepted that
all decision-makers were subject to a duty of fairness, in the sense that
they must act honestly and exercise their powers in a bona fide fash-ion. 23
However, it was not at all clear that this duty of fairness had a
procedural content.
It was a duty of honesty and good faith and courts
rarely found a decision-maker in breach of that duty.
In 1967 with the case of Re H.K.,24 Lord Parker C.J. held that the
concept of fairness did have a procedural content.
meet this duty than to just to act honestly.
More was required to
On the facts of Re U.K., the
immigration officer had to allow the immigrant to explain why he felt the
statutory criteria were satisfied.
Furthermore, the officer had to arti-
culate his objections, so the immigrant could attempt to dispel them.
This
new approach to fairness was followed in several cases including two
landmark cases decided by Lord Denning. 25
One important result of this neW development was that even those
decisions which were not labeled as judicial were now subject to review.
This fact was clearly enunciated in Bates v. Lord Hailsham 26 where Megarry
J. stated:
Let me accept that in the sphere of the so called
quasi-judicial the rules of natural justice run and in
the administrative or executive field there is a
general duty of fairness.
This neat dichotomy was not always accepted in later English cases but
does appear to represent the Canadian view on fairness.
Later English
cases have adopted a more unified approach to procedural protections.
They
8
suggest that natural justice and fairness are different points on a single
continuum.
Lord Morris in Furnell v. Whangeri High School made this
representative statement:
Natural justice is but fairness writ large and
judicially. It has been described" as fair play in
action." Nor is it a leaven to be associated with
judicial or quasi-judicial occasions •••• 27
Professor Clive Lewis has suggested that the unified approach to
procedural protections is the predominant one in the United Kingdom. 28 Thus
fairness in the United Kingdom is not a distinct and separate concept from
the older concept of natural justice.
The single question that must be
asked in each particular setting is what procedures are approrpiate?
As
Professor Lewis suggests, this invites courts to openly balance the
competing considerations rather than to hide behind labels.
Whether
fairness is an outgrowth of natural justice or a new doctrine has important
implications for the imposition of substantive standards.
Although the Canadian tree of fairness grew from its British roots,
its branches did not always bend in the same direction.
Some of the
differences can be explained by the different judicial traditions in the
two countries.
Canadian courts have lacked a clear direction in respect to
administrative law.
Professor Hogg has described the Canadian scene as a
"wilderness of single instances.,,29
In the decade since Hogg's study there
has been considerable progress, especially at the Supreme Court of Canada
level.
A predicatable approach to matters procedural however, is still
lacking.
One of the earliest cases breaking down the old classification process
was the Nova Scotian case of Scott v. Rent Review Commission. 30 The issue
...
9
in dispute Was the disclosure of financial information to tenants.
Without
such information the tenants argued that they could play no meaningful role
in the hearings.
They won their claim under the banner of fairness.
It
would not have been difficult to argue that no such classification was
necessary.
Fairness applied regardless of the classification.
The real breakthrough came with the Supreme Court of Canada decision
in Re Nicholson and Haldimand-Norfolk. 3l
Drawing upon the British author-
ities this case concluded that there is a procedural content to the duty of
fairness.
Laskin C.J. explains that fairness extends to administrative
actions which were previously immune from judicial review.
The late Chief
Justice also hints that fairness and natural justice are distinct concepts
with differing procedural contents, but that point is not clear.
This separation theme Was followed in Re Webb and the Ontario Housing
Corporation. 32
In exploring what procedures were appropriate for the
removal of a subsidized tenancy, the court discussed fairness as a concept
distinct from natural justice.
It also emphasized that the procedural
content of fairness was much less than full natural justice.
Although it
is better than nothing, fairness may be second class natural justice. 33
The use of the term "benefits" rather than rights or privileges as a
description of subsidized tenancy in Re Webb is an important issue for
later examination, when the protected interests in section 7 are discussed.
Another Supreme Court of Canada decision supports the separate treatment of fairness and natural justice.
In Martineau v. Matsqui Institu-
tion 34 a disciplined prison inmate who had been denied access to the
10
Federal Court of Appeal pursuant to section 28 of the Federal Court Act,35
sought review in the Federal Court Trial Division under section 18.
The
Court ruled that there Was a duty of fairness owed even in respect to
prison discipline.
However, Pigeon J. in his judgment, indicated that the
procedural content would be minimal. 36
A separation of fairness and
natural justice, depending upon classification of the decision-maker, is
encouraged by the jurisdictional tangle of the Federal Court Act.
Administrative decisions must be reviewed for fairness in the Trial
Division, while review of jUdicial decisions for breach of natural justice,
must proceed in the Federal Court of Appeal.
Labelling is mandated by the
statute.
A New Zealand judge in an unusual remark expressed the fear that
justice might degenerate into mere fairness. 37
If the content of fairness
is too abbreviated, there may be some foundation for the judge's fears.
Recognising a duty of fairness and then shrinking its procedural content
may simply raise false expectations.
Indeed, fairness may return to its
origins as a simple duty to act in good faith.
However, there are cases
which take a broader approach to the concept of fairness, viewing it as
part of the continuum of natural justice. 38
C.J. in Nicholson are open to this broader
the late Chief Justice intended.
The seminal comments of Laskin
interpretati~n
and may be what
It is unlikely that the he intended
fairness to be used as a means of challenging the substance of the
administrative decision but intentions are not always controlling.
Problems of procedure and substance surface in regard to the interpretation of the common law concept of fairness.
Whether fairness will
.
11
remain true to its procedural roots in natural justice, or expand into
substantive review, is not at present clear.
Further confusion is added by
the evolution of the traditional grounds for substantive review of administrative decisions under the umbrella of abuse of discretion.
Agreement is
also lacking upon whether increased judicial review is desirable or, if
desirable, whether it should proceed under the banner of fairness.
There has been an increasing awareness that procedure and substance
are really points on a single continuum and not completely distinct ideas.
Professor Grey argues that this has been the core of recent developments in
administrative law.
It stands to reason that in the context of new flexible
administrative law, it would not be the court's intention to embark on a technical definition of procedure
and substance and that certain minimal and similar
rules of justice would apply to both. Thus "substantive fairness" is not only not a heresy but is an
essential component of the new orthodoxy.39
Professor Mullan agrees that there are signs of a substantive
extension of fairness, but is more inclined to view this as heresy rather
than orthodoxy.40
He examines in detail four recent cases which use a
result oriented interpretation of fairness to challenge the reasonableness
of a particular decision. 41
In Mullan's view the broad interpretation of
fairness which allows it to invade substantive review,
undesirable.
~s
unjustified and
In the latter part of his article he argues that the same
results can be achieved by using the more traditional grounds for abuse of
discretion or emerging branches of that review, such as no evidence and
unreasonableness. 42
Review under the old labels according to Mullan, would
12
produce a better balance between judicial review and curial deference than
subjective rulings about fairness.
To date there have been few cases in Canada which have adopted the
substantive view of fairness and thereby challenged the merits of an
administrative decision. 43
This may reflect a more traditional view of the
role of the judge in the administrative process.
Such a view is well
expressed in the following quotation.
However, judges are not supposed to base their decisions on arguments of policy, that is, on what will
promote desirable social goals, be they comfort for the
sick, shelter for the homeless, education for children,
mitigation of industrial unrest, or--and this is the
major problem--the equitable assessment of priorities
in the use of limited resources. Judges must reach
their decisions by reasoning from the established
rules, resolving difficult questions by reference to
principles of law rather than social aims. There are
many reasons for this. "liard cases make bad law," in
that the same point of law may arise in a case where
the desirable social goal will be promoted by the
opposite decision; in presuming to assess what is the
desirable social goal, the judge is usurping a task
which should be performed by democratically elected and
accountable bodies; and the result will be arbitrary
and unpredictable, which is unforgiveable in a system
which allows the judges to lay down the law through
decisions on facts which have already happened. 44
Both the comments of Mullan and the excesses of the American due
process explosion emphasize problems with a full-blown doctrine of substantive fairness.
However, much of Mullan's argument depends upon the
efficacy of the existing bases for reviewing administrative discretion.
Indeed, the review for unreasonableness which Mullan advocates may provide
no more predictability or curial deference than the fairness review he
attacks.
Fairness as a vehicle for improving decisions made by the state
•
13
will also be affected by the development of constitutional rights under the
Charter.
However, even the most liberal interpretation of the Charter is
unlikely to supplant the need for a flexible common law concept of
fairness.
In spite of the revolutionary potential in fairness, Canadian courts
have proceeded cautiously and prudently on a case by case basis.
They have
recognized the value of an important new legal tool by which to do justice
in the individual case.
It is true, however, that having found a duty of
fairness they have often defined its content narrowly.
for future expansion.
There is still room
Courts have also carefully balanced the advantages
of greater procedural protections against the financial and bureaucratic
costs of due process.
Fairness provides an example of the flexible
evolution of the common law.
Interpretation of the Charter is also likely
to follow the familiar Canadian course of gradualism.
There has been very little empirical study to determine whether
fairness has actually produced meaningful input into the decision process
for those whose interests are being affected.
If unfair and uninformed
decisions are now reached after the trappings of proper procedures, the net
gain is minimal.
Indeed, such a charade is counter-productive as it
produces an illusion of justice where none exists.
The
~eal
impact of
fairness, as with the newly guaranteed Charter rights will only be
discovered by hard empirical study.
Although the jury is still out, I
would predict that the practical impact of both fairness and the Charter
will be considerably less than legal commentators 45 and public
pronouncements would suggest.
The promises of judicial protection in
14
respect to both common law fairness and the Charter may have been too
extravagant.
Certainly the fan-fare surrounding the Charter Was designed
to raise expectations but the actual process of Charter-making provides a
more sobering view of what can reasonably be anticipated in the way of due
process protections under our new Constitution.
III
THE PROCESS OF CHARTER-MAKING
Much has been written about the making of the Charter and that
information shall not be repeated here. 46
Suffice.to say that the Charter
arose out of political compromise and interest group lobbying rather than a
careful articulation of political and legal ideals.
It is instructive· to
briefly consider the origins of the perplexing section 7.
It is an amalgam
of two separate provisions of the Canadian Bill of Rights 47 sections l(a)
and 2(e).
1.
It is hereby recognized and declared that in Canada
there have existed and shall continue to exist without
discrimination by reason of race, national origin,
colour, religion or sex, the following human rights and
fundamental freedoms, namely,
(a) the right of the individual to life, liberty,
security of the person and enjoyment of property, and
the right not to be deprived thereof except by due
process of law;
..
2.
Every law of Canada shall, unless it is expressly
declared by an Act of the Parliament of Canada that it
shall operate notwithstanding the Canadian Bill of
Rights, be so construed and applied as not to abrogate
or infringe or to authorize the abrogation, abridgement
or infringement of any of the rights or freedoms herein
recognized and declared, and in particular, no law of
Canada shall be construed or applied so as to •••
(e) 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.
15
The narrow reading given to these provisions in the Bill of Rights is
well known to both lawyers and legal academics. 48
Courts Were reticent to
give real content to the concept of "due process" under the Bill of Rights
but when they did it was a very limited content.
In Duke v. The Queen49
Fauteux, C.J. attempted a definition of "fundamental justice" which has
been much quoted in the early Charter cases on section 7.
He stated:
Without attempting to formulate any final definition of
those words, I would take them to mean, generally, that
the tribunal which adjudicates upon his rights must act
fairly, in good faith, without bias and in a judicial
temper, and must give him the opportunity adequately to
state his case. 50
This quotation has been used to buttress the argument that the phrase
"fundamental justice" has procedural and not substantive connotations.
In another much cited Bill of Rights case Mr. Justice Laskin (as he
then was) clearly rejected a substantive interpretation to "due process'· in
the Bill of Rights.
He reached this conclusion in Curr v. The Queen 51 on
the basis that the Bill was not a constitutional document and that to give
it substantive impact would be contrary to the principle of the supremacy
of Parliament.
Speaking for the Court the late Chief Justice made the
following comments:
The phrase "due process of law" has its context in the
words of s. l(a) that proceed it. In the present
case, the connection stressed was with '·the right of
the individual to ••• security of the person". It is
obvious that to read "due process of law" as meaning
simply that there must be some legal authority to
qualify or impair security of the person would be to
see it as declaratory only. On this view, it should
not matter whether the legal authority is found in
enacted law or in unenacted or decisional law •••• I am
unable to appreciate what more can be read into s. l(a)
from a procedural standpoint than is already
comprehended by s. 2(e) ("a fair hearing in accordance
with the principles of fundamental justice·') and by
l
16
s. 2(f) ("a fair and public hearing by an independent
and impartial tribuna1,,).52
Later the Supreme Court of Canada
~as
again called upon to
a~judicate
on the meaning of "due process" in Miller v. The Queen,53 which was· a case
involving the dea1th penalty.
Mr. Justice Ritchie speaking for the Court
defined the phrase as follows:
The declaration of the right of the individual not to
be deprived of life which is contained in s. lea) is
clearly qualified by the words "except by due process
of law", which appear to me to contemplate a process
whereby an individual may be deprived of life. At the
time when the Bill of RIghts was enacted there did not
exist and had never existed in Canada the right not to
be deprived of life in the case of an individual who
had been convicted of "murder punishable by death" by
the duly recorded verdict of a properly instructed jury
and, in my view, the "existing right'" guaranteed by
s. l(a) can only relate to individuals who have not
undergone the process of such a trial and conviction. 54
The net effect of these and related cases was to render '"due process
of law'" as equivalent to '"in accordance with existing law'".55
This is a
clear assertion of the supremacy of Bar1iament and of the deferential
approach of Canadian courts.
It is against this back-drop that the early
commentators. on section 7 have argued that the different wording of the
Charter was a deliberate attempt to escape the narrow approach to -due
process'" under the Bill of Rights. 56
The desire for a broader approach to
"due process" protections was not readily evident in the process of
Charter-making.
The phrase '"enjoyment of property'", found in section lea) of the
!!£
of Rights, was deliberately omitted from section 7 of the Charter as a
federal government concession to the provinces and the New Democratic
Barty, after considerable debate in both Parliament and the House of
l
17
Commons and Senate Joint Committee on the Constitution. 57
Since property
is the classic interest which has attracted procedural protections at
common law the deletion of property is a matter of some significance.
It
is also relevant to the argument for American style substantive due
process. 58
The other change from the Bill of Rights is the deletion of the phrase
"due process of law· and the substitution of the phrase from section 2(e) "fundamental justice".
However, the fair hearing context apparent in the
use of the latter phrase in section 2(e) of the Bill of Rights is not
expressly repeated in section 7 of the Charter.
This has been raised as an
argument for substantive as opposed to procedural review. 59
There was
little real debate on the meaning of this phrase before the Joint Committee
on the Constitution-and indeed most of the committee's time on section 7
was spent in procedural rangles. 60
However, Barry Strayer, Assistant
Deputy Minister, Public law of the Federal Department of Justice, when
questioned on the meaning of "fundamental justice" before the Joint
Committee on the Constitution, emphasized that it was to signify procedural
protections and expressly drafted to avoid the pitfalls of American style
substantive due process. 61
The intent of the drafters in the respect will
not necessarily prevail. 62
One of the interesting issues of judicial methodology that will
surface in the early Charter cases is the use of the intent of the drafters
of the document in giving content to its provisions.
is used, it is not clear whose intent is relevant.
If evidence of intent
Is it the members of
18
ParlIament, the members of the Joint Committee on the Constitution or the
bureaucrats who drafted the particular provision in issue?
To the extent
that any of these intentions can be ascertained they will only provide
guidance and will not be determinative.
Whether section 7 was designed to
escape the narrowness of the Bill of Rights, the breadth of American
substantive due process or both, will continue to be an important debate.
It is highly likely that more meaning and purpose is being read into the
process of Charter-making than was actually present.
However, the fact
that intentions are fictional has not prevented courts from relying upon
them in the past. 63
There are, however, persuasive arguments that a
constitutional document must be open to changing interpretations and not
tied to the intentions of its creators. 64
Nonetheless, the setting for the
Charter does provide hints as to how it may be interpreted.
IV
APPLICATION, LIMITATIONS AND REMEDIES
A.
Application
With the exception of two notable dissenting commentators 64a it is now
generally accepted that the Charter only applies to government action on
what the American's call "state action" .65
private activity.
The Charter does not apply to
This is the fairly clear intention of section 32 of the
Charter and has been so found in the early cases. 66
However, what is meant by "state action·· has not been clearly
articulated and the early indications are that it will be defined quite
'.'
broadly.
It has been held to include within the reach of the Charter an
19
arrest by a private person pursuant to the Criminal Code. 67
Municipal
traffic by-laws passed by a city council were found to be subject to the
Charter. 68
This is particularly interesting in the context of this paper,
because city councils are usually equated with administrative tribunals for
legal purposes.
There has even been some suggestion that courts themselves
will be caught by the Charter as well. 69
In the controversial Operation Dismantle case even the exercise of the
Royal Prerogative was held not to be immune from the provisions of the
Charter. 70
At this early stage the predictions of Professor Swinton that
Canada will follow the United States lead and define state action broadly,
would appear to be sound. 7l
This broad definition will likely extend to a
wide range of administrative boards which are charged with the execution of
public policy, such as the Canadian Transport Commission, the Canadian
Radio, Television and Telecommunications Commission and housing agencies at
both the federal and provincial levels of government. 72
As will be
discussed later in this paper, the Charter has been applied to the National
Parole Board and its provincial counterparts.
Purely domestic or private tribunals will escape section 7 of the
Charter in the same way that they have escaped the restraints of
administrative law.
However, the contours of state action will not
necessarily be identical to the border between public and private action in
administrative law.
Unions for example will not necessarily be considered to be engaged in
government action merely beCause they indirectly derive their existence
from statute. 73
Nor, for that matter, has it been clear that unions are
20
caught by the procedural rules of administrative law.
One anomalous result
which may evolve from the Charter is that public sector unions and
employers may be bound by the Charter while private employers and unions
will not fall within its grasp.
The protections of the Charter have been
applied to corporations as well as individuals. 74
R. v. Halifax-Dartmouth Real Estate Board ex parte Seaside Realties 75
provides an example of a body engaged in a "public function" so as to
attract the procedural roles of administrative law; but it would aot
necessarily be regarded as an agent of the state engaged in governmental
action.
Indeed, such a board could be easily viewed as engaged in private
action.
Other examples of where an action could be public but not
governmental can also be imagined.
Thus the applicati9n of the
constitutional concept of "fundamental justice" will in some cases be
narrower than the reach of common law procedural protections.
this is one
important reason why the common law doctrines will continue to thrive in
the post-Charter world.
B.
Standing
Another respect in which common law concepts of fairness diverge from
constitutional "fundamental justice" is in relation to standing.
There is
still some doubt whether the expansion of standing requirements for
constitutional issues, as evidenced in Thorson, MacNeil and Borowski 76 is
.<
equally applicable to claims in administrative law.77
However, there has
been a fairly clear expansion of standing in administrative law and the
Nova Scotia case, Re Ratepayers of New Ross,78 is a rather extreae example
21
of this extension.
An
application for an order to remedy a breach of
fairness was brought by the ratepayers of the school district on behalf of
the local school principal.
A litigant under the Charter has three remedial channels open to him
or her and the standing requirements are different in each situation.
One
very specific remedial provision is the exclusion of evidence pursuant to
section 24(2) of the Charter.
This section appears to be aimed at the
criminal process since it speaks about "bringing the administration of
justice into disrepute" but it could have some tangential application to
administrative boards which receive evidence.
In any event the standing
requirements for this section are stated in the section and will not be
discussed here.
The other two remedial channels are the general provisions which apply
to all Charter violations and not ,just those in the criminal domain.
A
declaration that a particular law is invalid may be obtained by using
section 52 of the Constitution Act, 1982.
This provision which applies to
any unconstitutional law will attract the normal standing requirements. 79
However, as the section stipulates, it must be a law that is being
challenged and not just a board ruling or some administrative action.
52(1) The Constitution of Canada is the suprem~ law of
Canada, and any law that is inconsistent with the
provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.
In the administrative sphere it will often be a particular decision or
.~
ruling that initiates a challenge.
Recourse must then be had to section
24(1) of the Charter which is the general remedial provision.
states:
This section
22
24(1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply
to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate in the
circumstances.
In order to acquire standing under this section the litigant must
prove, on the balance of probabilities, that his or her rights have been
violated. 80
This is a stricter standard than is required for standing at
common law.
Accordingly, when the Edmonton Journal challenged in camera
hearings in the juvenile courts, the court concluded that its rights wre
not infringed and any challenge would have to be under section 52 of the
Constitution Act, 1982. 81
As a further limitation on the availability of
remedies under section 24(1), the word "may" has been interpreted so as to
give the court a discretion as to whether to allow an application, as well
as granting a citizen an option to apply or not. 82
This suggests a
parallel to the broad judicial discretion in respect to standing enunciated
in the pre-Charter cases.
Thus the same discretion is open to the court at
the end of the day but the original hurdle for the would-be litigant is
higher.
C.
Limitations
Like any other provision in the Charter section 7 can be over-riden by
a proper use of section 33 but such action will hopefully be rare.
There
are some limitations inherent in section 7 of the Charter which should be
noted.
.
~.
It applies only to deprivations of "life, liberty and security of
the person"; as shall be discussed later in the paper these interests may
be read broadly or narrowly by the courts.
Furthermore. the rights to
"fundamental justice" arise only upon "deprivation" and not merely upon
.
..
23
limitation of one of the protected interests.
There will be much
litigation about what constitutes a deprivation as opposed to a mere
limitation of rights. 83
Section one of the Charter allows for reasonable limits on any of the
rights guaranteed in the Charter.
1.
This section states as follows:
The Canadian Charter of Rights and Freedoms guarantees
the rights and freedoms set out in it subject only to
such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society.
This provision has already received considerable judicial attention
and Some of the contentious issues have been resolved at the court of
appeal level.
It has been held that the burden of showing that a
limitation is reasonable rests with the alleged government violator. 84
In
the Ontario courts it has also been established that any limitations must
be properly prescribed by "law" and policy guidelines do not qualify as
"law".8S
Many courts have considered the meaning of "reasonable limits"
and have frequently relied on the Europeon case law to assist them in
devising a methodology.86
Courts have been much less clear about what
investigation is mandated by the reference to "free and democratic society"
and whether this really adds anything to the section 1 limitation.
Certainly what limitations would be reasonable in
respe~t
to fundamental
justice, would vary greatly from one democratic society to another.
Professor Paul Bender of the University of Pennsylvania has argued
that once there is a finding that there is a breach of the rules of
-,'.
"fundamental justice" section 1 could not be invoked to save it. 87
He
argues that section 1 should not be applied to any provision which contains
r
24
its own limitation. 87a · Although section 1 may be difficult to apply once
there has been a breach of fundamental jllstice, I do not think that it is
precluded.
Section 1 refers to all rights in the Charter and it is unikely
that courts will read that to mean only those sections not otherwise
qualified.
Furthermore, there are rare cases, such as a national
emergency, in which the violation of "fundamental justice" could be
regarded as reasonable.
In any event, such a conclusion would be within
the Canadian tradition of deference to authority.
Section I should be
reluctantly applied, once there is a breach of section 7. but it is not
precluded.
There does appear to be a rather unusual shifting burden of proof in
section 7 cases, which will make it difficult for the state to justify
violations.
First, the applicant must show a deprivation of an enumerated
right in section 7.
Second, the state, arguably, must show that this
deprivation was in accordance with fundamental justice.
Alternatively the
applicant could be required to show that the deprivation was contrary to
"fundamental justice".
Finally, the state must justify the deprivation
contrary to "fundamental justice", as a reasonable limitation under section
I of the Charter.
At COmmon law once a violation of natural justice or fairness has been
proved it cannot be justified as reasonable.
However. it can be held that
the breach of natural justice or fairness produced no real miscarriage of
justice so the court may deny a remedy.87b
Furthermore, the result may
simply be a second decision before the same tribunal.
Of course, an
appropriate remedy under section 24 for a violation of section 7 may be to
order that the matter be re-heard in accordance with the principles of
25
"fundamental justice".
action as well.
However, there is the possibility of other remedial
Thus there can be important strategic differences in
pursuing section 7 as opposed to common law procedures.
In most cases both
avenues will be pursued in order to pick the best elements of
constitutional and common law protections.
C.
Remedies
One significant advantage of proceeding under section 7 of the Charter
rather than common law, is that it opens up the expansive remedial
provisions of the Charter.
One of the traditional problems with procedural
review at common law is that the issue gets sent back to the same decision
maker to decide again, but in accordance with proper procedures.
Thus a
procedural victory is often short-lived.
Although the same result could emerge from the Charter, the remedial
possibilities are much greater.
Section 24 grants a broad judicial
discretion to fashion appropriate remedies.
In the colourful case of R.
v. Vermette,SS Quebec Premier Ren€ Levesque made comments in the National
Assembly about testimony of a witness during a trial of an R.C.M.P. officer
charged with wrong-doing.
These comments were widely publicized.
The
result was that the trial was stayed because of the publicized comments.
which in the circumstances amounted to a dismissal of the charge.
On the
facts of that case the court concluded that it would noW be impossible for
the trial to be conducted in accordance with the principles of "fundamental
.~
justice··.
Another example of the potential breadth of section 24 is the
possibility of getting injunctions against the Crown which is not immune
26
from the Charter. 89
The potential breadth of section 24 has been explored
by many writers and their detailed analysis will not be repeated here. 90
There are two distinct parts to the section 24 remedial provision.
They read as follows:
'Enforcement
24(1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply
to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in
th~ circumstances.
(2) Where, in proceedings under subsection (1), a
court concludes that evidence was obtained in a manner
that infringed or denied any rights or freedoms
guaranteed by this Charter, the evidence shall be
excluded if it is established that, having regard to
all the circumstances, the admission of it in the
proceedings would bring the administration of justice
into disrepute.
It is unlikelY that the exclusion of evidence pursuant to section
24(2) will be applied outside the criminal law context; so it may have no
direct application to the general run of administrative boards.
However,
it has been successfullY argued that in some situations the exclusion of
evidence could be an "appropriate remedy" within the meaning of section
24(1).
This was the conclusion reached by the Saskatchewan Court of Appeal
in R. v. Therens. 9l
While this may be a rather devious way to escape the
restrictions of section 24(2) in the criminal context, it makes more sense
in respect to non-criminal administrative boards.
There could be cases
where the exclusion of evidence would be the only appropriate response to
the Charter violations of a board.
By doing this under section 24(1) it
27
eliminates the hurdle of showing that the administration of justice would
be brought into disrepute.
Section 52 of the Constitution Act, 1982 also offers new remedial
options to deal with violations of procedural rights.
Professor Garant
suggests that procedural codes iri either statutes or regulations can noW be
attacked directly if they do not measure up to the standards of
"fundamental justice" enunciated in the Charter. 92
It is even possible
that the narrow definition of law in Martineau v. Matsqui Institution (No.
!l93 may now be used to further procedural rights because reasonable limits
can only be imposed by laws. 94
Thus prison directives or policies may not
qualify as a valid device for imposing reasonable limits on behalf of the
state.
The power of the courts to invalidate laws may not only cause
courts to be more vigilant in assessing statutory codes of procedure, but
also to be more active in implying procedures where the statute is
silent. 95
Procedural guarantees will not have to be asserted by way of
statutory interpretation as has been the case in the past.
There are however some problems in applying the Charter remedies.
Depending upon what remedies are sought it is not always clear which is the
"court of competent jurisdiction" within the meaning of section 24(1).
This problem arose in Re Seaway Trust and the Queen. 96
·Although the
Divisional Court was the proper forum under the Judicial Review Procedure
Act 97 of Ontario, was it a court of competent jurisdiction for purposes of
.,
.:-
remedies?
The Ontario Court of Appeal concluded that it was not.
It
reached this conclusion in part because the trial process of an action was
more appropriate to resolve factual matters such as the basis for
.
28
reasonable limits, than the application process which Was used.
The court
also held that the damages remedy would be more appropriately pursued in
the trial division.
The Seaway Trust case is merely a manifestation of the larger dispute
about what is meant by a "court of competent jurisdiction".
One view is
that the court only needs to be competent in respect to the subject matter
and thus the effect of section 24(1) is to add a new remedial jurisdiction
to all courts. 98
The contrary view is that a court is only competent
within the meaning of section 24(1) if it would have jurisdiction over both
the subject matter and the remedy, notwithstanding the Charter. 99
It is
the latter more restrictive approach to remedial jurisdiction which has Won
the day in the early Charter cases. 100
However, the issue is not settled
and 80me commentators argue that even administrative boards should be able
to grant Charter remedies. 10l
Another possible limitation on Charter remedies is the application of
the section 1 "reasonable limits" clause to the remedy sections as well as
the express guarantees of rights.
This is a case where the Professor
Bender ~nalysis,102 disputed earlier in this paper, should be applied.
Section 1 does not so clearly apply to section 24 as the more specific
guarantees of rights elsewhere in the Charter.
Furtherm~re,
both branches
of section 24 contain their own extensive limitations provisions and an
application of the ··reasonable limits·· clause would be genuinely
..
redundant.
This is one of the many unsettled isues that will wind its way
to the Supreme Court of Canada.
29
Even at this stage the Charter remedies would appear to be broader
than those available at COmmon law for breach of fairness or natural
justice.
The prerogative writs themselves are discretionary and these, as
well as appeal rights, should be considered separately from Charter
remedies under sections 24 and 52..
Courts generally have failed to treat
these three categories of remedies separately.l03
Even with the expansion
of certiorari under Martineau {No. 2),104 there is still a large element of
discretion in the granting of prerogative writs.
The Charter holds out the
potential for more creative remedies for the breach of fair procedures.
This is an important practical reason to make a claim for breach of
"fundamental justice" as well as the more traditional claims.
V
SUBSTANTIVE DUE PROCESS
One of the most controversial early debates about the Charter is
whether section 7 imports substantive or merely procedural due process.
As
indicated earlier the clear intent of the drafters was the latter. lOs
Cases to date have gone both ways although the great majority have come
down on the procedural side.
among the legal academics.
There has also been a split on this issue
Morris Manning 106 and John Whyte 107 have argued
in support of substantive due process while Patrice Carant 108 and A.
Gold 109 have predicted a procedural application of "fundamental justice".
Under a substantive due process approach the courts can examine the
.,
content of legislation to determine whether it meets the substantive
standards of "fundamental justice" .110
basic legal process issue.
This kind of analysis raises a
Who should decide issues of substantive
30
fairness?
A full blown substantive due process approach would require
courts to limit not just the procedures by which government policies are
implemented but the content of the policies themselves.
Traditionally, the
content and wisdom of government policy have been determined by the
legislators and,it would be a striking departure to assign this bold
substantive role to the courts.
Of course courts have been involved in
policy making in such areas as the distribution of powers but substantive
due process would be a marked extension of the policy-making role.
Adopting full blown substantive due process would be undesirable quite
apart from the fact that it is unlikely.
A.
Arguments for a Substantive Approach
John Whyte lll has made a strong argument in favour of a substantive
due process approach to section 7 of the Charter.
The case for a
substantive due process analysis can be elucidated by a brief summary of
Professor Whyte's arguments.
First, a substantive interpretation of section 7 would enable the
courts to assist the legislators in the allocation of burdens and resources
in society.
Second, the real purpose of the Charter is to protect
minorities from majorities and this objective would be best served by a
substantive due process analysis.
Third, a substantive approach to
"fundamental justice" would provide a more effective check on the growing
host of administrative tribunals. ll2
Fourth, courts are already invited by
the Charter to adopt a broad policy-making role which requires them to
balance competing interests.
Prime examples of this are the broad language
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31
!
[
I
of sections 1 and 24 discussed in the previous section.
Finally, a
substantive interpretation would make section 7 a more effective residue of
rights clause and would give real content to the other rights in the
Charter.
On a more technical level ,Whyte and Manning argue that section 7 is
not as clearly procedural as SOme writers would suggest. I13
The "fair
hearing" phrase in section 2(e) of the Bill of Rights does not appear in
section 7.
Thus Bill of Rights cases such as Duke v. Queen l14 and Curr v.
The Queen l15 can be distinguished.
Neither Whyte nor Manning see the
deletion of property as fatal because of the potential expansive
interpretation of "security of the person".ll6
They also see the deletion
of the phrase "due process of law" as a positive rather than negative sign,
as this phrase was narrowly construed under the Bill of Rights.
Its
deletion may signal a broader approach by the use of the more open-ended
phrase "principles of fundamental justice".
Both writers also reject the
idea that the intention of the drafters to restrict section 7 to procedural
matters will be controlling.
B.
This problem was discussed earlier.
Arguments Against a Substantive Approach
I am more skeptical both as to whether the courts will opt for a
substantive due process approach, or indeed whether they should.
This is
not a fashionable view in legal or academic circles and such a view would
be considered by some to be regressive and anti-court.
I am not really
opposed to courts; however, they, like most institutions, have limits of
expertise.
Canadians have traditionally preferred that the elected
32
legislators make policy decisions about substantive fairness within a
procedural framework set by the courts. III
The expertise of the courts is
in designing the appropiate procedural structure and not in second guessing
the legislators on government policy. lIS
There are a number of problems in
jumping on the band wagon of substantive due process.
First, the imposition of legal decision-making On matters of
substantive policy may produce a narrowing rather than broadening effect.
It should be remembered that courts generally are a rather conservative
institution and this was vividly illustrated by the American interpretation
of substantive due process in the early 1900's as a way to champion freedom
of contract at the expense of better wages and working conditions for
employees. 119
Of course there are other occasions when the courts are more
advanced in their thinking than the legislators; Brown v. Board of
Education of Topeka 120 is a classic example.
Canada's judges do not share
the activist experiences or philosophies of their southern brethren121 and
even if they did decide to lead public opinion, the legislators have the
final word via section 33 of the Charter. 122
In Canada the language issue
may provide the testing ground for the comparative policy-making roles of
courts and legislators.
Second, a substantive approach to "fundamental justice" would unduly
politicize the· courts and thus reduce their credibility.
While this
politicizing of judges will happen to some extent under other sections of
the Charter, such as sections land 24, there is a difference of degree.
As far as the exercise of the broad remedial discretion of section 24, the
courts have long had power to shape new remedies at least at the superior
33
court level.
While the courts are involved in balancing competing policies
under the section 1 "reasonable limits" clause, this is only done after a
violation of a Charter right has been established.
It is true, however,
that certain cases prior to the Charter have also politicized the
courts. 123
Nonetheless, mandating that courts assess the merits of
legislation against the ill defined standards of ·'fundamental justice"
would take courts outside their usual terrain and into direct conflict with
legislators on a regular basis.
Third, courts as an institution are not well equipped to make
decisions about the substantive fairness of legislation.
Such a new role
would require different considerations in the selection of judges, the
training of lawyers, the expansion of extrinsic evidence and the concept of
judicial notice.
Many of these changes will come about as a result of the
Charter but once again it is a question of degree.
If the court structure
is radically altered to accomodate this kind of decision-making will a more
traditional role be sacrificed?
Fourth, it is important that lawyers balance a healthy optimism and
realism in assessing the utility of the Charter.
Are courts better able to
deal with basic issues such as human dignity and the right to a job or are
they more inclined to emphasize classic legal rights such as free speech,
rights to counsel and freedom of assembly?124
Using freedom of expression
as example the courts may shelter pornographers and hate propagandists in
the name of free expression while the legislators are more concerned to
promote human dignity by the passing of laws against pornography and hate
propagan~a.
While it would be naive to suggest that the legislative
34
process is particulatly accessible to the average person, it is
than the courts.
~ore
so
Women's lobbies were obviously more successful in
affecting the process of Charter1naking than they were in influencing the
result in Lavell. 125
Courts are not particularly accessible and that is
relevant to the kind of power that should be assigned to them under the
. Charter.
Fifth, making extravagant claims for section 7 could actually reduce
the practical impact of the Charter.
If the courts pursue too activist a
stance either the federal government or individual provinces can over-ride
the result by using section 33.
Frequent application of "reasonable
limits" under section 1 could be the refuge of courts which want to avoid
getting involved in difficult value choices about the fairness of
particular legislation.
It is also conceivable that a substantive
interpretation of section 7 will make judges reluctant to conclude that
there has been a violation of the principles of "fundamental justice".
This would be the converse of the development of fairness where the concept
is broadly applied but the content.
There are many other ways in which judges can avoid deciding a case if
they so desire.
Canadian courts are likely to resolve a dispute on the
basis of the distribution of powers rather than the Charter where that is
possible.1 26
In the United States the courts have devised a wide range of
avoidance techniques.
Limiting standing, doctrines of ripeness or mootness
and the requirement that other remedies be exhausted are but a few
examples.
Thus it is important to know whether the judges themselves are
3S
comfortable with evaluating laws on a substantive basis, for if they are
not they will find clever means by which to avoid the task.
Sixth, many of the benefits of judicial review sought by the
supporters of a substantive approach can be achieved by less drastic
means.
As will be discussed in the next section of this paper, a
procedural interpretation of section 7 can still produce a significant
extension of fairness as it presently exists.
Even some of the substantive
due process cases which will be examined could have been resolved in other
ways.
Furthermore, there are other sections of the Charter which can be
useful.
Sections 11, 12 and 15 are obvious examples.
Much the same
results can be achieved within more traditional legal confines.
Seventh, a substantive interpretation of section 7 would further
accentuate the homogenizing impact of the Charter.
It has been recognized
by some commentators that one of the results of the Charter is a leveling
of differences between provincial laws and an indirect strengthening of the
federal position. 127
In the United States conCern has been expressed that
one of the effects of the Fourteenth Amendment was to reduce the power of
the states. 128
It is possible that substantive due process could be
applied disproportionately to provincial laws, although the claims to a
federal bias in Canadian courts have been exaggerated. 129
C.
The Caselaw
A substantive approach to due process was rejected under the Bill of
Rights as discussed in an earlier section of this paper. 130. This has also
r
36
been the stance
adopt~d
in most post-Charter cases.
There have, however,
been a few notable exceptions the most significant of which comes from the
British Columbia Court oE Appeal and has been appealed to the Supreme Court
of Canada.
This leading case is Ref. Re Section 94(2) of the Motor Vehicle
Act. 131
The challenged section provides that anyone who drives a motor
vehicle while prohibited or while his or her licence is suspended is liable
to a fine and no less than seven days imprisonment for a first offence.
Subsection (2) makes it clear that this is an absolute liability offence
and guilt could be established by proof of driving, "whether or not the
defendant knew of the prohibition or suspension".
The provision was
invalidated as breaching the principles of "fundamental justice" in section
7 of the Charter.
In reaching this conclusion the court emphasized that
not all absolute liability offences are offensive and the genuine "public
welfare" offences discussed by Dickson J. (as he then was) in!:. v. City of
Sault Ste. Marie 132 would normally survive.
Particular emphasis was placed
on the minimum jail sentence in Ref. Re Motor Vehicle Act and perhaps it
was this mandatory sentence in combination with absolute liability for a
less serious offence, that offended the court. 133
The fate of strict as opposed to absolute liability offences has not
yet been decided.
However, the early judicial reasoning suggests that such
offences are likely to survive a Charter attack whether under section 7 or
another section. 134
There is also Privy Council authority for the
proposition that "fundamental justice" when applied to strict liability
offences has only a procedural impact. 135
r
I·
37
However, the critical aspect of Ref. Re Hotor Vehicle Act is not the
application of section 7 to those facts, which might be construed as a
procedural impact, but rather its clear statement of the need for courts to
take a substantive approach to section 7 of the Charter.
Upon this view of the matter the effect of s. 7 is to
enshrine in the Constitution the principles of natural
justice. That is certainly one view of the matter. It
does not, however, give any effect to s. 52 of the
Constitution Act, 1982 which can be viewed as effecting
a fundamental change in the role of the courts. The
Bill of Rights allowed the courts to test the content
of federal legislation, but because the Bill was merely
a statute, its effectiveness was hampered by the
equally persuasive "presumption of validity" of federal
legislation. The Constitution Act, 1982 in our
opinion, has added a new dimension to the role of the
courts; the courts have been given constitutional
jurisdiction to look at not only the vires of the
legislation and whether the procedural safeguards
required by natural justice are present but to go
further and consider the content of the legislation. 136
Other Criminal Code provisions have been attacked on the basis of the
above reasoning that they remove the need for the Crown to prove the full
mens rea of the offence.
One of the most noteworthy examples of such
application is R. v. Red Hot Video Ltd. 13 7'
This case involved the
possession of obscene video tapes for distribution contrary to section 159
of the Code.
Although the argument that the limits imposed by the section
were too vague to constitute a "reasonable limit" under section I of the
Charter failed, the court held that there was a violation that could not be
saved by section 1.
The crux of the violation was that the defendant could
not raise as a defence the fact that he did not know the videos were
obscene.
Putting it another way, the Crown did not have to prove a vital
part of the mens rea for the offence.
issue. l38
Cases have gone both ways on this
38
A similar issue arose in the Cmtario Court of Appeal but the court
evaded the hard question of whether section 7 imported substantive due
process.
The impugned provision of the Code was section 145 prohibiting
intercourse with a female person under fourteen years.
It was argued in
R. v. Stevens 139 that removing the defence of mistake as to age violated
the principles of "fundamental justice".
In a rather oracular response the
court relied heavily On the existence of similar provisions in other free
and democratic societies and decided the case more on the basis of section
1 than on section 7.
Assuming, without in any way deciding the question,
that s. 7 of the Charter permits judicial review of the
substantive content of legislation, we are all of the
view that, in so far as this case is concerned, s. 7
does not have the effect of invalidating s. 146(1) of
the Criminal Code and preventing Parliament from
creating the crime of having sexual intercourse with a
girl under 14 years of age excluding mistake as to the
age of the girl as a defence therefrom.
The appeal is, accordingly, dismissed. 140
Even in the criminal domain the arguments for substantive due process
have met little success.
this respect.
Ref. Re Motor Vehicle Act is an aberration in
Outside the criminal sphere the unusual case of The Queen
v. Larry Jones 141 is a rare example of a successful application.
This case
concerned the invalidat.ion of the compulsory attendance provision under the
provincial education statute.
The reasoning of the court was not very
clear and the ruling in respect to section 7 was further clouded by a claim
that the section violates freedom of religion.
Substantive due process has
generally not fared well in the post Charter cases.
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39
D.
Concluding Thoughts
It would be unwise in the early stages of Charter development to
embracefully any theory of section 7 be it substantive or procedural.
There are many variants of either a substantive or procedural model and it
is even possible that the standards of justification under section 1 will
vary depending upon the context in which section 7 is applied.
Furthermore, the degree of substantive review could vary widely depending
upon the question that the court asks.
A very different response might be
elicited by asking whether there is a rational basis for the law, whether
the law fairly allocates burdens or whether the law is desirable.
The
latter question would produce the most extensive form of review.
It is false to assume that there is a clear line between substance and
procedure as they are increasingly being seen as different points on a
single continuum. 142
There have been arguments that the basic right to
property should be seen largely as a process right rather than a
substantive one. 143
Thus much can be achieved with a creative procedural
application of section 7.
It is best to apply the section on a case by
case basis and keep alive the possibility of a substantive application in
certain fundamntal areas such as criminal law.
This is at least an area
where the courts have considerable experience.
This cautious case by case approach was advocated by the late Chief
Justice Laskin in Morgentaler v. The Queen.144
I am not, however, prepared to say, in this early
period of the elaboration of the impact of the Canadian
Bill of Rights upon federal legislation, that the
prescriptions of s. l(a) must be ridigly confined to
procedural matters. There is often an interaction of
means and ends, and it may be that there can be a
40
proper invocation of due process of law in respect of
federal legislation as improperly abridging a person's
right to life, liberty, security and enjoyment of
property. Such a reservation is not, however called
for in the present case.
This advice is equally compelling for the early development of the Charter.
Undoubtedly, substantive due process would make life more interesting
for lawyers and judges and might help to produce a just result in a
particular case.
Nonetheless, until it can be demonstrated that it would
produce better protection for the rights of Canadians and that the costs to
the collective interest would not be too great, it is self-indulgent of
lawyers to promote a substantive approach to section 7 as an across the
board approach.
In an age of general uncertainty about basic values there
is much to be said for testing these values in the broader population
rather than abdicating responsibility to the judges.
VI
THE PROCEDURAL IMPACT OF SECTION 7
To conclude that section 7 has a procedural rather than substantive
impact is not to dismiss its significance.
There are at least two distinct
ways in which section 7 of the Charter can expand the concept of fairness
as evolved by the common law.
One way is to extend the range of interests
that are protected by fair procedures and the other is to produce a third
level of procedural content which is more expansive than either natural
justice or fairness.
The majority of the cases to date have arisen in the
criminal context but the extradition cases and others that will be
discussed later in this paper confirm a potentially broader reach to the
section.
41
One of the early cases to assert/strenuously a procedural
interpretation of section 7 was R. v. Potma. 145
This case conceraed the
routine disposal of breathalyzer tests which made it impossible for the
defendant to attack the results of the tests.
The response of the court
was clear.
The submission that the inability to conduct an
independent test of the ampoules amounts to a denial of
the right to make full answer and defence and hence to
the denial of a fair trial was fully canvassed in the
Duke case, supra. The considerations applicable to
this issue are no different now than they were before
the Charter. The concepts of "fundamental justice" and
"fair hearing" relevant here are the .same whether
considered under ss. 7 and ll(d) of the Charter,
under. s. 2(e) and (f) of the Bill of Rights, or under
the COmmon law. In so far as this case is concerned,
while the Charter accords recognition to the
well-established rights asserted by the appellant, it
effects no change in the law respecting those rights.
Sections 7 and ll(d) cannot be construed to operate so
as to reverse the decision reached in the like
circumstances of Duke that non-production of evidence
of this kind does-not infringe the right to a fair
trial in accordance with fundamental justice.
This is not to suggest that "the principles of
fundamental justice" now recognized by the Charter of
Rights and Freedoms are immutable. "Fundamental
justice", like "natural justice" or "fair play", is a
compendious expression intended to guarantee the basic
right of citizens in a free and democratic society to a
fair procedure. The principles or standards of
fairness essential to the attainment of fundamental
justice are in no sense static, and will continue as
they have in the past to evolve and develop i" response
to society's changing perception of what is arbitrary,
unfair or unjust. 146
The emphasis on the flexibility of "fundamental justice" and its
potential for expansion is significant.
This potential for growth is well
exemplified in the cases involving parole revocation.
Prior to the Charter
there was no right to a hearing upon parole revocation because it was
L
r
42
considered a privilege rather than a right. 147
There was no question in Re
Caddedu and the Queen 148 that the rules of the game had been changed by the
Charter.
The Crown's submission was that ss. 7 and 9 do not have
any effect where an individual is lawfully detained.
By this, I understand, is meant lawfully detained
according to the common law or positive legislation
other than the Constitution of Canada. If the
Constitution were included within the ambit of the
Crown's submission, the proposition it stands for would
be tautologous and unhelpful.
I do not think I can accept the Crown's
submission. The wording of these Charter rights must
be given their plain and natural meaning which contains
no such restriction. They prohibit certain government
action that does not accord with the principles of
fundamental justice or are arbitrary. The actions may
be authorized by the common law or by federal or
provincial legislation, but if the actions do not
accord with the principles of fundamental justice or
are arbitrary, the law authorizing them is, to that
extent, void and of no effect (Constitution Act, 1982,
s. 52). Alternatively, it may be that the Charter
rights dictate standards to which the common law and
federal or provincial legislation do not address
themselves. In such a case, the Charter rights fill
the lacuna.
Considering that the rights protected by s. 7 are
the most important of all those enumerated in the
Charter, that deprivation of those rights has the most
severe consequences upon an individual, and that
the Charter establishes a constitutionally mandated
enclave for protection of rights, into which government
intrudes at its peril, I am of the view that the
applicant could not be lawfully deprived of his liberty
without being given the opportunity for an in-person
hearing before his parole was revoked. It was
conceded, by Mr. Cole, that there might be
circumstances in which parole could be revoked without
a hearing, but the Crown, for its part did not suggest
this was such an instance.
Although nothing in the common law or in federal
or provincial legislation required the board to grant a
hearing - or, for that matter, forbade the board to do
so - I am of the opinion that the Charter dictates that
such an opportunity be given. The board, having
revoked the applicant's parole without affording him
r
43
the opportunity for a hearing, therefore exceeded any
jurisdiction it could possess. That being the case, I
need not consider s. 9 of the Charter. 149
It is an interesting to note that there appears to be an increasing
willingness on the part of lower court judges to find a violation of
section 7 of the Charter.
This observation is based upon a reading of the
large number of section 7 cases reproduced in the Charter of Rights Digest
·in which the number of cases where the courts found a violation increased
with each succeeding· volume.
superior courts.
This same trend is not repeated in the
When all the cases are considered very little pattern
emerges but when only superior court decisions are taken into account Some
trends become more apparent.
One important trend is the willingness of the
courts to treat section 7 differently in varying contexts.
In this respect
it echoes the common law evolution of fairness discussed earlier.
A.
Expanding the Content of Fairness?
Section 7 can be used to attack directly procedures as set out in
statutes or
~egulations
procedures. lSO
or for that matter the failure to articulate such
However, the precise content of the principles of
"fundamental justice" are far from clear.
One theory is that section 7 is
the umbrella provision which includes not only the procedural rights
implicit in the more specific provisions of sections 8-14 but also any
residual rights necessary to promote "fundamental justice" in the broad
sense. lSI
1.
Parole
One of the early groups to beneficit from the Charter has been
parolees.
In the seminal case of Re Caddedu and The Queen 152 the court
r
44
required that the parolee be granted an in person hearing before his
parole could be revoked.
This application is surprising not just in the
context of the previous parole law but also in the context of the general
treatment of prisoners by Canadian courts.
Generally Canadian courts have
been willing to defer to both prison and parole authorities on matters
related to the liberty of prisoners.
It may be that the Charter will usher
in a neW approach to the treatment of Canadian prisoners l53 but such a
sweeping conclusion is premature.
Charter cases have not changed the
status of the inmate within the institution and that will be the real test
of section 7.
Nonetheless, Re Caddedu was a significant step forward.
In a follow-up decision the holding of parole hearings in camera was
also found to be a violation of section 7. 154
The courts have even limited
the conditions under which a parolee can waive his rights to a hearing.
When the Earole Board relies upon a waiver of a hearing it must establish
that the parolee's consent Was fully informed. 155
In R. v. Swan 156 it was
held that a post-revocation hearing attracted full scale natural justice
and not just fairness because the liberty of the person is at stake.
Even where no post-revocation hearing is mandated by the relevant
parole statute, once it is granted it must be carried out in accordance
with the principles' of "fundamental justice".
Martens v. A.G. of British
Columbia l57 found that a ten minute discussion between the board and the
parole officer in the absence of the parolee Was a violation of section 7.
The exclusion of the parolee throughout the board hearing has, not
surprisingly, also been found to violate the fair hearing requirement. 15S
45
Finally where the deciding vote in a post-suspension hearing was cast by a
board member not present at the hearing this was also found to violate the
Charter. 159
Thus section 7 has been actively used not only to require hearings
upon parole revocation but also to shape the content of these hearings.
The courts have not been so bullish in applying the provision in other
·contexts.
It is not clear why parolees have received special treatment or
whether the benefits granted will be affirmed in the Supreme Court of
Canada.
2.
Extradition and Deportation
Section 7 of the Charter has not fared so well in extradition
hearings.
These cases make it clear that the courts will apply section 7
outside the criminal context.
The issue in controversy was the statutory
denial of rights'to cross-examine under the Extradition Act. 160
The
statutory framework gave the foreign country the option to tender
affidavits which would not be subject to cross examination_
Attack on the
relevant provisions were mounted on the basis of both "fundamental justice"
in section 7 and also on the guarantee of a "fair hearing" in section ll(d)
of the Charter.
There Was a flurry of cases on this issue and some conflicting
decisions in the lower courts as to whether there was a violation of the
Charter. 161
However, there was no such ambivalence on the issue in the
superior courts.
Three separate rulings in the Ontario High Court held
that either there was no violation of section 7 or alternatively, it was
saved by section I as a reasonable limit. 162
The lead of the Ontario
r
,
46
courts has been followed in other provinces as well to uphold current
practices under the Extradition Act. l63
The predominant reasoning on this issue was that expressed in Re
U.S.A. and Yue l64 and similar reasoning was adopted in Re Schmidt and the
Queen et al. 165
I conclude that the omission of the documentary
evidence, not subject to cross-examination, is requird
by treaty and permitted by statute. I conclude as well
that reliance on such evidence, even as the only
evidence, is not contrary to the principoles of
fundamental justice and does not violate s. 7 of the
Charter.
Even if I am wrong and the reliance on evidence
not subject to cross-examination is a violation of s.
7, it is my view that the procedures in the treaty and
the Act are reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic
society within the meaning of s. 1 of the Charter.
That the limits are reasonable is apparent when
the nature and purpose of extradition is considered,
and regard is had to the guarantees contained in the
treaty and the Act. The fact that the
extradition hearing does not address the issue of guilt
or innocence is also to be considered. A limit on
one's rights may be reasonable where no finding of
guilt may be made, but not reasonable if such finding
can be made.
The limits must also be ones that can be
demonstrably justified in a free and democratic
society. That test may be made by measuring the limit
against the general standards of Canada. But the test
need not be restricted to a consideration of Canadian
standards. Assistance may be found in an examination
of standards and judicial pronouncements in other free
and democratic societies.
This is particularly so when the matter in issue
is one that has international implications or involves
relationships between friendly nations. The rights of
fugitives and the law relating to extradition of
offenders are clearly matters which suggest an
examination of the law of the state with which Canada
has a treaty - the other lane of the two"Way street. 166
•
47
Arguments about the need to honour Canada's international obligations
are interesting.
It could be argued that Canada is in a position of
conflicting international obligations.
Under articles 6 and 9 of the
International Covenant on Civil and Political Rights, to which Canada is a
signatory, there are some guarantees of procedural justice.
6.
Every human being has the inherent right to life.
right shall be protected by law. No one shall be
arbitrarily deprived of his life.
This
...
9.
Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest
or detention. No One shall be deprived of his liberty
except on such grounds and in accordance with such
procedures as are established by law.
Any conflict, of course, disappears if the extradition procedures
executed in accordance with international treaties do not violate the
principles of fundamental justice.
If, on the other hand, a violation is
found and only saved by section 1 of the Charter, then the position is not
quite so clear.
These arguments may not make much difference in a domestic
court but if international treaties are raised to justify extradition
practices, it is only fair to consider other long-term international
obligations.
Another aspect of the reasoning in the extradition cases is that these
proceedings involve no determination of guilt or innocence.
That really
indicates little more than that they are not criminal proceedings.
In the
common law evolution of fairness the severity of the consequences is an
important factor.
Frequently the consequences of extradition will be great
:and this emphasizes the need for fair procedures.
Perhaps the lesson of
r
the extradition cases is that the principles of "fundamental justice" can
be more easily met in a non-criminal proceeding.
this in other non-criminal hearings as well. 167
There is some evidence of
Disciplinary hearings
which have an element of guilt determination may be subject to a closer
section 7 scrutiny.l68
The varfable content of section 7 Was emphasized in
Re U.S.A. and Smith:
The principles of fundamental justice are not new
concepts nor are they fixed and immutable. They form
an integral part of our judicial process and do not
arise from the Charter. Their application may vary to
meet the particular circumstances of a specific
situation. 169
3.
Criminal Proceedings
There has been a great flood of criminal cases in which section 7 of
the Charter was raised.
Indeed, there have been more cases on seetion 7
than any other legal right or for that matter than any other Charter
right.
To properly analyze all these cases properly would be a paper in
itself and, is thus beyond the scope of this study.
For purposes of this
paper I have restricted my comments to superior court decisions and have
been selective even with these rulings.
Of course, many of the lower court
rulings are on appeal to higher courts so any generalizations must be
tentative.
Most commentaries will be speculative until .the Supreme Court
of Canada provides some guiding caselaw.
Even after -such rulings there
will be some flux in the state of the relevant law.
shall consider the cases under two headings.
- I
L
For convenience I
..
P"
49
a.
Rights Infringed
The early cases do not support the thesis suggested in the previous
section of this paper that violations of section 7 are more likely to be
found in criminal proceedings.
The number of cases where no violation Was
found far exceed those where the courts found a violation.
This statistic
is undoubtedly affected by the tendency of defence counsel to raise section
·7 arguments even where there is very little chance of success.
Nonetheless, there have been some victories for section 7 in the criminal
sphere.
One successful application was in the surprising substantive
application of section 7 to strike down an absolute liability offence in Re
Motor Vehicle Act. 170
As discussed in an earlier section, this approach
has been followed in Bome cases but more frequently rejected.
Another
successful application ocurred in ~ v. Vermette I7l where proceedings were
stayed because a trial in accordance with "fundamental justice" was found
to be impossible.
There has also been a successful application of section 7 to limit
prosecutorial discretion and in particular the power of the
Attorney-General to prefer indictments directly.
R. v. Rosamund1 72 was a
case involving three accused where the preferral of indictments and
scheduling of preliminaries put one accused at an advantage over the other
two.
The court held that this amounted to a violation of the Charter in
this case but emphasized that the accused need not receive identical
treatment in every case. 173
50
b.
Rights Not Infringed
On the issue of prosecutorlal discretion the majority of cases have
found no violation of section 7.
Re Balderstone et al and The Queen 174 was
one of the early cases to conclude that the power to prefer indictments was
expressly granted by section 507 of the Criminal Code and there was no real
evidence that such a power violated "fundamental justice".
In R. v.
Stolar 175 the court affirmed that there was no right to a preliminary
inquiry,
Even though one accused had the benefit of a preliminary inquiry
while the other did not, the "advantage" analysis of Rosamund was not
applied.
NOr have arguments that section 507 produces unequal treatment
between provinces met with any success. 176
Another caSe concerning the Attorney General's range of power is
v. Musitano 177 which concerned section 498 of the Criminal Code.
~
This
provision permits the Attorney General to mandate trial by judge and jury
in spite of the accused's election of trial by judge alone.
As in
Balderstone the court emphasized that the powers were clearly granted under
the
~
and there was no apparent breach of section 7.
R. v. Piraino 178 raised another issue in the pre-trial process - that
of jury selection.
The accused challenged section 563 of the Criminal Code
which grants the Crown an advantage in jury selection.
This claim was
rejected on the basis that the Charter only guaranteed a fair trial at the
end of the day and not that each segment be completely even-handed.
The
principles of "fundamental justice" did not mandate the selection of the
jury on a basis of equality with the Crown.
r
>1
The right of the accused to confront the witnesses against him was
raised in R. v. Clarke and Norwood. 179
Although the accused had the chance
to cross-examine the witness at the preliminary hearing, he was not
informed until two weeks before the trial that the witness would not be
available at the trial.
The judge concluded that section 7 did not create
a right to confront a witness personally so he did not exclude the evidence
given at the preliminary hearing.
However, he was willing to adjourn the
trial so the witness in issue could be present.
In R. v. Potma lSO the accused argued that he had been denied his right
to make full answer and defence by the routine destruction of breath
samples after the police conducted their test.
making an independent assessment.
This prevented him from
As indicated at the beginning of this
section the court responded by declaring that section 7 was procedural in
nature and that there was no violation on these facts.
Another example of tests for alcohol in the blood was R. v. Carter. lSI
In this case a blood sample was given at the hospital and only later
acquired and used by the police as evidence of drunk driving.
The court
held that this practice did not violate section 7 of the Charter and cited
with approval the following statement about the interaction of the Charter
and criminal law •
••• the Charter does not intend a transformation of our
legal system or the paralysis of law enforcement. IS2
A third case involving testing for blood levels is ~ v. Strayer. IS3
The accused only agreed to a breathalyzer test on the condition that he be
allowed to have a blood test done also.
The police, however, put the
accused in a cell to sober up as is their normal practice and by the time
.
52
of his release a blood test would have,been of no value.
In finding no
violation of section 7 the court concluded that the police were acting in
the public interest by detaining the accused in his cell.
A similar crime
control analysis has been used to uphold fingerprinting as consistent with
"fundamental justice".184
4.
Concluding Thoughts
To date the Charter has not produced a significant expansion of the
content of fair procedures.
Except for the gains by parolees there has
been little alteration of the status quo.
This is particularly so in the
realm of criminal law where the most impact might be expected.
The wide
array of more specific rights applicable to the criminal process may,' in
part, explain the courts' reluctance to apply the more general language of
section 7.
But that is not the whole story.
It does not appear that courts have accpeted the notion that
"fundamental justice" is a third category of procedural rights which is
superior in content to either natural justice or fairness.
The predominant
view is that section 7 merely constitutionalizes the procedural rights that
existed prior to the Charter.
Section 7, like natural justice or fairness,
is seen as having a variable content depending upon the context in which it
is applied.
A cataloguing of the minimum content of "fundamental justice"
has been avoided. 18S
Finally the supremacy of Parliament is far from dead as the courts are
still reluctant to strike down the clearly expressed intent of the
legislators.
This is evident in the clashes between particular provisions
53
of the Criminal Code and the broad language of section 7.
This same
deference is demonstrated in respect to the Extradition Act.
There will be
no over-night revolution in the thinking of judges just because the Charter
has arrived on the Canadian scene. 186
Thus the expansion of procedural
content under section 7 will be a slow process marked by as many retreats
as advances.
B.
Newly Protected Interests?
In one significant respect the range of interests protected by section
7 of the Charter would appear to be narrower than those which attract fair
procedures at COmmon law; that is the deletion of property as one of the
protected interests.
In order to attract the principles of "fundamental
justice" the interests in issue must be related to "life, liberty or
security of the person".
The omission of property is one of the reasons
why the doctrines of natural justice and fairness are still relevant in the
post-Charter world.
There are, however, Some distinct advantages to the new language used
in section 7 of the Charter.
At present it is unencumbered by the baggage
of caselaw and can escape the narrow and traditional definitions of
property.187
Both "liberty" and "security of the person" are broad
concepts which could be interpreted more broadly than the concept of
property.
Whyte has argued that to make the Charter meaningful these
phrases must be read broadly enough to encompass economic rights such as
the right to a livelihood which could be affected by the removal of a taxi
licence, the cancellation of a franchise or deletion from the welfare
•
54
rolls .188
Other writers have argued that "security of the person" could
lead to claims to social assistance, socialized medicine or public
housing. 189
However, these same authors conclude that the most the courts
are likely to offer is a hearing at the allocation and removal stages in
matters of government largesse. 190
The guar,!ntees of "life, liberty and security of the person" are
stated in positive language and there is an argument that they require
affirmative action on the part of the government and not just abstinence.
For example real "security of the person" could require that the government
provide a minimum wage to all Canadians.
In the particular area of sexual
assaults, it has been argued that section 7 mandates the provision of
proper street lighting and proper rape crisis centers to promote the
security of women in Canadian society.191
These arguments are buttressed
by the need for affirmative action to promote true equality pursuant to
section 15 of the Charter which comes into effect on April 1, 1985.
There is little in the early caselaw to support the thesis that ther
will be an expansion of the interests thst require fair procedures at
either the allocation or removal stage.
Arguments for affirmative rights
have not been successful in the courts.
R. v. Fisherman's Wharf Ltd. 192 is
one of the early cases which takes an adventurous stance.
This case reads
property interests back into the phrase "security of the person".
This
appears to contradict the intention of tne drafters directly and has not
attracted much fOllowing.
Another interesting post-Charter case is Elliott v. Director of Social
Services (Winnipeg)193 where Matas J.A. granted leave on the issue of
55
whether social assistance ben'efits haq been cut off in accordance with the
principles of "fundamental justice".
Although Hatas J.A. thought there was
an arguable issue his colleague Hall J.A. summarily dismissed the argument
based upon section 7, when the case was tried on the merits. l94
The latter
judge had also construed broadly the power of the social assistance agents
in an earlier case and was thus consistent ,in his views. 19S
Thus the early
activity in the sphere of social assistance offers little optimism for an
adventurous extension of section 7.
In another case there Was a request for funds to finance experts in a
utility rate hearing.
section 7.
This might be classified as an affirmative use of
This claim was denied in Manitoba Society of Seniors Inc. v.
Greater Winnipeg Gas. l96
Attempts to extend the benefits of section 7 to
the other end of the age scale have been equally ineffective.
Section 7
was held to afford a child little in the way of new rights in a child
apprehension setting. l97
A substantive due process analysis has led to the
recognition of privacy rights in the family setting in the United States
but such claims are unlikely to succeed in Canada.
While the early cases offer little hope that the range of protected
interests will be expanded, it is really too early to make any solid
prediction.
The potential is there in the language of section 7 and what
Canadian courts will do with it only time will tell.
It is safe to say
that they will be slow to engage in the positive creation of rights that
would mandate the expenditure of public funds.
seen as a legislative role.
This has traditionally been
56
VII
OTHER PROVISIONS RELEVANT TO FAIRNESS
AIl the legal rights have some relevance to section 7 because
"fundamental justice" is seen as a concept that embraces the more specific
legal rights..
Thus the guarantee of "reasonable search" in section 8 was
used in tandem with section 7 to invalidate writs of assistance under the
Narcotic Control Act. 198
This was the result in R. v. Carriere. 199
.Similarly an arbitrary detention contrary to section 9 of the Charter could
also be viewed as a deprivation of liberty under section 7.
Failure to
give the reasons for arrest or the right to counsel under section 10 can
also constitute a breach of "fundamental justice".200
It is easy to see how actions which are cruel and unusual within the
meaning of section 12 could also be in breach of section 7.
In a similar
vein both sections 13 and 14 are not on their face restricted to criminal
hearings but are stated as a component of a fair hearing in any setting.
The reach of section 13 in respect to self-incrimination is quite important
because, as will be discussed in a moment, it is not clear that section
ll(c) applies to non-criminal proceedings.
Section 11 rights are the ones that are most frequently used in
conjunction with section 7.
The rights in section 11 are only triggered
when a person has been charged with an "offence" and they are thus arguably
restricted to the criminal process.
Breach of professional discipline
within the context of a law society has been held not to constitute an
offence. 201
However, law societies have been found to make law and are
thus not generally immune from the Charter. 202
Section 11(c) on the
non-compellability of the accused is of no assistance to lawyers who have
57
been charged with misconduct. 203
However, section 13 has been held to
apply to professional discipline hearings. 204
The issue of how section
ll(c) should be interpreted is on appeal to the Supreme Court of Canada. 205
The relevant portions of sections 11 and 13 read as follows:
11.
Any person charged with an offence has the right '"
(c) not to be compelled to be a witness in proceedings
against that person in respect of the offence;
(d) to be presumed innocent until proven guilty
according to law in a fair and public hearing by an
independent and impartial tribunal;
13.
A witness who testifies in any proceedings has the
right not to have any incriminating evidence so given
used to incriminate that witness in any other
proceedings, except in a prosecution for perjury or for
the giving of contradictory evidence.
Section ll(d) is the most frequent companion of section 7 and both
sections were usually raised in the extradition cases discussed earlier.
Even claims to substantive due process have been buttressed by a section
ll(d) argument, albeit unsuccessfully to date. 206
There are really two
relevant components to section ll(d) - the guarantee of a "fair and public
hearing" before an "independent and impartial tribunal".
Thus it resembles
the classic statement of the two branches of natural justice.
In some of the early cases there has arisen an alleged conflict
between a "fair" and a "public" hearing.
So far the freedom of the press
appears to have prevailed in these arguments. 207
The issue of the
independence and impartiality of judges has also arisen in R. v. Valente
(No. 2).208
Ontario's Court of Appeal ruled that neither the appointment,
tenure nor payment of provincial judges would lead the reasonable person to
apprehend bias.
Canada.
This case has been appealed to the Supreme Court of
An interesting question that will not be answered by this case is
58
whether different standards of impartiality and independence apply to
boards as opposed to courts.
Finally, the equality guarantees of section 15 will be an important
ally of section 7 when they come into play in 1985.
In the United States,
equality and due process have been closely linked but that can be partly
explained by the fact that they both arise out of the Fourteenth
. Amendment.
Significance may be attached to the existence of two discreet
sections in the Canadian Charter.
Certainly equality rights need not be
derived from due process but equality may still be an important component
of "fundamental jus!;ice".
Equality has not been seen as a vital component of "fundamental
justice" in the early Charter cases.
Unequal applications of the Attorneys
General's powers in different provinces have been upheld,209
Section 688
of the Criminal Code was challenged in R. v. Gustavson 210 as breaching
equality and therefore "fundamental justice".
This claim was rejected on
the basis that the dangerous offender provisions were merely a special
category of sentencing where each person must be handled on an individual
basis.
There was no direct substantive due process attack on the dangerous
offender provision in Gustavson.
However, such an attack on the provisions
of the Indian Act 21l which make it an offence to be intoxicated on a
reserve won at trial but lost on appeal. 2l2
VII
CONCLUSION
There have been very few references in this paper to American cases or
other comparative jurisprudence.
Such comparisons are often relevant and
59
useful but I think that too much has been made of them in the
speculations about the Charter.
e~rly
The power of the CanadIan judiciary has
historically been quite different from its counterpart in the United
States.
Canada's judges do not have an activist tradition and they bring a
different philosophical orientation to their task. 213
Predictions about the Charter should be grounded in the Canadian
. experience and tradition.
This point is clearly stated by Madame Justice
Veit.
It seems to me in assessing the value of the American
precedents ••• that the Constitution Act, 1982 is very
much the fruit of Canadian political maturity that this
is a tree which has grown in our own back yard, not a
plastic tree, in my view that we bought in a store and
put in our yard. It seems to me that we have to
consider the roots from which this tree has grown up
and that involves the Canadian and the Anglo-Canadian
jurisprudence surrounding the words that eventually
Were chosen to be used in the charter. 214
The above is not intended to diminish the importance of looking to
other countries for guidance on how to interpret the Charter.
Nor is it
aimed at devaluing the wealth of American experience with the Bill of
Rights.
Indeed, it is significant that the remark was in the context of
the exclusion of evidence which has not had a happy history in the United
States.
Following Madame Justice Veit's dictum too closely would produce a
perpetuation of the status quo.
However, before applying the experiences
of other countries, Canadian judges should be well informed on their own
roots.
• •• the Charter was not enacted in a vacuum and the
rights set out therein must be interpreted rationally
having regard to the then existing laws ••• 215
60
In the realm of "fundamental justice"
~here
evolution of fairness from natural justice.
Charter~aking
is much to learn in the
Furthermore, the nature of the
process, the limitations of the Charter and the restrictions
of Canadian legal culture are all instructive.
Although the pattern of
early cases is far from clear, they do give some hints about the shape of
fairness after the Charter.
Trying to predict what judges will do with the concept of "fundamental
justice" is a specific example of the broader problem of whether judges are
restricted by words.
Does it really matter whether the phrase is
"fundamental justice", "natural justice" or "fairness"?
it does not.
In many respects
The problem of deciding what content to give to the broad
language of section 7 is really a question of values rather than words.
How much money are Canadians willing to spend in designing and executing
fair procedures?
Traditionally, considerable money has been spent on
criminal trials and this is increasingly the case with non-criminal
tribunals.
Spending money on fair procedures takes it away from some other
projects and that is the heart of the value choice.
One clear effect of
section 7 of the Charter has been to give a constitutional dimension to the
process value.
Whether this will affect the choices made by legislators
and judges remains to be seen.
I would hope that the scales will
ultimately be tipped more heavily in favour of due process but not to the
exclusion of other values.
That the rights in issue are largely procedural
does not concern me because the line between substance and procedure is at
. best fuzzy and at worst arbitrary.
My hope is that competing values will
61
be clearly articulated and the nature/of the choices not obscured by labels
and precedent.
l
62
FOOTNOTES
*
The author acknowledges the research assistance of Jud Levinson, a
Dalhousie law student who provided research on the section 7 Charter
cases.
1. Part I of Constitution Act, 1982 [enacted by Canada Act, 1982 (U.K.)
c. 11 as Schedule B). Hereafter referred to as the Charter.
2. The Charter cases have dwarfed other constitutional law litigation.
In the 1983 D.L.R.'s (vols. 138-147) there were 144 constitutional
cases - 7 were separation of powers issues, 45 involved distribution
of powers, in the sections 91 and 92 sense, and 102 cases involved the
Charter. J. MacPherson, "The First Two Years (Almost) of Charter
Litigation", Paper presented at the Mid Western Meeting of the Sask.
Branch C.B.A., Regina, Saskatchewan, February 4, 1984.
3. Operation Dismantle Inc. et al v. Canada, A.G. of Canada et al (1984),
49 N.R. 363 (F.C.A.). Now on appeal to the Supreme Court of Canada.
4.
!:.. v.
Cook (1983), 4 C.C.C. (3d) 419 (N.S.S.C. - App. Div.), at 435.
5. R.A. Samek, "Untrenching Fundamental Rights" (1982), 27 McGill L.J.
755, argues that the Charter was not intended to enhance the rights of
Canadian citizens and is unlikely to do so.
6. B. Chayes, "The Role of the Judge in Public Law Litigation" (1976), 89
Harv. L.R. 1281, argues that even the Burger court in the United
States could not thwart the growing public litigation role of the
courts.
7. M. Loughlin, "Procedural Fairness: A Study of the Crisis in
Administrative Law Theory" (1978), 28 U. of T.L.J. 215.
8. D.J. Mullan, "Natural Justice and Fairness: Substantive as well as
Procedural Standards for the Review of Administrative Decision-Making"
(1982), 27 McGill L. J. 250.
9. Supra, note 7.
10. Metropolitan Properties v. Lannon, [1969) 1 Q.B. 577 (Eng.C.A.).
is the classic statement of the rule about the "reasonable
apprehension of bias".
This
11. J. Willis, "Canadian Administrative law in Retrospect" (1974), 24.!!.:.
of T.L.J. 225.
63
12. R. Heuston, Essays in Constitutional Law (2nd ed.) London: Stevens,
1964, at 185.
/
13. J. Willis, "Administrative Law and the British North America Act"
(1939), 53 Harv. L.R. 251.
14. Copithorne v. Calgary Power Ltd., [1959] S.C.R. 24, providss a
Canadian application of the rule.
15. [1979] 1 S.C.R. 495, at 500.
16. [1964] A.C. 40 (H.L.).
17. Dowhopoluk v. Martin (1971), 23 D.L.R. (3d) 42 (Ont.H.C.), at 48.
18. Local Government Board v. Arlidge, [1945] A.C. 120 (H.L.).
19. D.J. Mullan, "Fairness:
L.J. 281.
The New Natural Justice" (1975), 25 U. of T.
20. S.O. 1971, c. 47.
21. R. v. Kensington and Chelsea Rent Tribunal, [1974] 1 W.L.R. 1486
(Eng.Q.B.) stresses the importance of notice in rental deliberations.
22. Supra, note 16.
23. This position was well articulated by Loreburn L.C. in Board of
Education v. Rice, [1911] A.C. 179, at 182.
24. [1967] 2 Q.B. 617.
25. R. v. Gaming Board, [1970] 2 Q.B. 417 (C.A.) and Re Pergamon Press,
11971] Ch. 388 (C.A.).
26. [1972] 1 W.L.R. 1373 (Eng.C.D.), at 1378.
27. [1973] 1 All E.R. 400 (N.Z.P.C.). at 412.
28. C.B. Lewis, "The Duty to Act Fairly", an unpublished paper prepared as
part of his LL.M. program at Dalhousie Law School in 1981-2. He is
fortified in his view by recent cases such as Bushell v. Secretary of
State for the Environment, [1981] A.C. 75. The single question
approach was also advocated by D.J. Mullan, supra, note 19.
29. P. Hogg, "The Supreme Court of Canada and Administrative Law
1949-1971" (1973), 11 Osgoode Hall L.J. 189, at 214.
30. (1977), 81 D.L.R. (3d) 530 (N.S.C.A.). D.J. Mullan, supra note 8, at
294 contends that this decision could also be explained as review for
64
inconsistency.
Board.
Landlords and tenants were treated differently by the
"
31. [1979] S.C.R. 11l.
32. (1978), 93 D.L.R. (3d) 187 (Ont. C.A.).
33. There may be layers of bias just as there are layers of procedure.
Thus it may be more difficult to challenge an administrative decision
maker such as a tenancy officer, than to attack a magistrate, on the
basis of bias.
34. (1979), 30 N.R. 119 (S.C.C.).
35.
s.c.
1970-71-72, c. 1.
36. Oswald and Cardinal v. Kent Institution, [1982] 3 W.H.R. 593
(B.C.C.A.) emphasizes that the content of procedural fairness will be
minimal in the prison context. This case is on appeal to S.C.C.
37. Avondale Printers v. Haggie, [1979] 2 N.Z.L.R. 124 (N.Z.S.C.), at
151-155.
38. A.G. Canada v. Inuit Tapirisat, [1980] 2 S.C.R. 735 (per Estey J.).
39. J.H. Grey, "'Can Fairness be Effective"' (1982), 27 McGill L.J. 360, at
370.
40. Supra, note 8.
41.
~
v. Barnsley Borough Council, Ex parte Hook, [1976] 1 W.L.R. 1052
(C.A.); H.T.V. Ltd. v. Price Commission, [1976] 1 C.R. 170 (C.A.);
Daganayasi v. Minister of Immigration, [1980] 2 N.Z.L.R. 130 (C.A.)
and Minister of Immigration and Ethnic Affairs v. Pochi (1980), 31
A.L.R. 666 (F.C. Aust.).
42. Supra, note 8, at 274-95.
43. Trans West Development Ltd.
(B.C. S.C.) was the only one
Mullan feels that Canada is
decisions orr the grounds of
v. Nanaimo (1979), 11 M.P.L.R. 254
located by D.J. Mullan, supra note 8.
achieving the same result by reviewing
inconsistency.
44. "'Editorial: Rights or Rationing·· (1978-79), Journal of Social
~ 193, at 193.
\~elfare
45. Most early commentators on the Charter have championed a broad reading
of the document and have advocated using it as a tool for social
reform. These extravagant claims are often advocacy disguised as
prediction. There are some dissenters who decry the over-valuation of
65
"entrenched" rights. Samek, supra, note 5 and R.A. MacDonald,
"Postscript and Prelude - The Jurisprudence of the Charter: Eight
Theses" (1982), 4 Sup. Ct. L.R., 321.
46. R. Romanow, "Making Canada's Constitution: Reflections of a
Participant" in W. MacKay et al (ed.), The Canadian Charter of Rights
and Freedoms: Law Practice Revolutionized, Halifax, Dalhousie
Continuing Legal Education, 1982, at 105. "Reshaping Confederation:
The 1982 Reform of the Canadian Constitution" (1982), 45 Law and
Contemp. Prob. (No.4), 1-302. The full volume is devoted to this
issue. Samek, supra, note 5, provides a different view of
Charter-making.
47. R.S.C. 1970, Appendix III.
Hereafter the Bill of Rights.
48. W. Tarnopolsky, The Canadian Bill of Rights (2nd ed.), Toronto:
McClelland and Stewart, 1975, at 222-235, analyses the courts' record
on due process prior to the Charter.
49. [1972] S.C.R. 917.
50. Ibid. , at 923.
51. [1972] S.C.R. 889.
52. Ibid., at 897-98. Laskin J. reiterated this view in his dissenting
opinion in Morgentaler v. The Queen (1975), 20 C.C.C. (2d) 449
(S.C.C.).
53. [1977] 2 S.C.R. 680.
54. Ibid., at 704.
55. D. Mullan, "Human Rights and Administrative Fairness", in R. Macdonald
and J. Humphreys (eds.), The Practice of Freedom, Toronto:
Butterworths, 1979, at Ill, 126; also Tarnopolsky, supra note 48, at
234-35.
56. M. Manning, Rights, Freedoms and the Courts, Toronto:
Emond-Montgomery, 1983, at 255-56; P. Garant, "Fundamental Freedoms
and Natural Justice", in W. Tamopolsky and G. Beaudoin, The Canadian
Charter of Rights and Freedoms: Commentary, Toronto: Carswell, 1982,
at 276-77 and D. McDonald, Legal Rights in the Canadian Charter of
Rights and Freedoms, Toronto: Carswell, 1982, at 19-24.
57. P. Hogg, Canada Act, 1982 Annotated, Toronto: Carswell, 1982, at 28
and R. Sheppard and M. Valpy, The National Deal, Toronto: Fleet
Books, 1982, at 151.
66
58. Manning, supra, note 56, at 257 argues that the deletion of property
does not preclude a substantive due process argument. Garant, supra,
note 56, at 275-78; McDonald, supra, note 56, at 23-4 and A. Gold,
"The Legal Rights Provisions - A New Vision or Deja Vu" (1982), 4
S.C. Law Rev. 107, at 110, all argue that the deletion of property is
a significant blow to a Canadian substantive due process analysis.
59. Manning, supra, note 56, at 255-62.
60. J.D. Whyte, "Legal Rights: .The Scope and Application of Section 7 of
the Charter", A paper presented at The Charter After 18 Months, a
conference sponsored by the Canadian Institute for the Administration
of Justice, Winnipeg, October, 1983 •
. 61. Minutes of Proceedings and Evidence of Special Joint Committee of the
Senate and House of Commons on the Constitution of Canada, First
Session of the Thirty-second Parliament 1980-81, 46:32 (January 27,
1981); cited in Hogg, supra note 57, at 29.
62. Manning, supra, note 56, at 255-262.
63. The fiction of legislative intent in matters of statutory
interpretation is well known and much criticized. J. Willis,
"Statutory Interpretation in a Nutshell" (1938), 16 Can. Bar Rev. 1.
64. D. Gibson, "The Charter of Rights and the Private Sector" (1982), 12
Man. L.J. 213, at 213 and J. Richards and G.J. Smith, "Applying the
Charter" (1983), 4 Advoc. Quarterly 129, at 149-50.
64a.Gibson, ibid., argues that the Charter applies to the private as well
as the public sector and does not on its language preclude this
broader application. He expanded on this view in "Distinguishing the
Governors from the Governed: The Meaning of 'Government' under
Section 32(1) of the Canadian Charter of Rights and Freedoms", a paper
presented at The Charter After 18 Months, a conference sponsored by
the Canadian Institute for the Administration of Justice, Winnipeg
October, 1983. Manning, supra note 56, at lIS, agrees with Gibson and
stresses that section 32 does not say that the Charter applies "only"
to government.
65. K. Swinton, "Application of the Canadian Charter of Rights and
Freedoms", in W. Tarnopolsky and G. Beaudoin, The Canadian Charter of
Rights and Freedoms: Commentary, Toronto: Carswell, 1982, at 44-49
and Hogg, supra, note 57, at 75-78, support the view that the Charter
is limited to government action.
66. R. v. Easterbrook, unreported decision, July 18, 1983 (Ont. H.C.) and
Re Schmidt and The Queen (1983), 4 C.C.C. (3d) 409 (Ont. H.C.).
67
67.
~
v. Easterbrook, ibid. The Charter has also been held to apply to
orders made by directors under the federal combines statute and under
a provincial social services statute, respectively. Southam Inc. v.
Hunter (1983), 42 Alta. R. 93 (C.A.) and Elliot v. Dir. of Social
Services (1982), 17 Man. R. (2d) 350 (C.A.).
68. McCutcheon v. Corp. of the City of Toronto (1983), 41 O.R. (2d) 652
(H.C.).
69. The Sunday Times v. The United Kingdom (1979), 2 E.H.R.R. 245 (Eur.
Ct. of H.R.) and R. v. Begley et al (1982), 38 O.R. (2d) 549 (H.C.),
establish that thecourts can "prescribe law" for purposes of section
1 of the Charter so it would not be too great a leap to say that the
courts themselves are bound by the Charter.
70. Supra, note 3, per Le Dain J. at 374-75 and per Ryan J. at 370. The
Crown in general has no Charter immunity. Van Mulligen v. Sask.
Housing Corp. et al (1982), 23 Sask. R. 66 (Q.B.).
71. Supra, note 65.
72. W. MacKay and M. Holgate, "Fairness in the Allocation of Housing:
Legal and Economic Perspectives" (1983), 7 Dal. L.J. (No.3), 383, at
403-05.
73. J. Fichaud, "Analysis of the Charter and its Application to Labour
Law· in W. MacKay et al (eds.), The Canadian Charter of Rights: Law
Practice Revolutionized, Halifax: Dalhousie Continuing Legal
Education, 1982, at 217 ff., particularly at 227, argues that the
internal management of union is unlikely to be caught by the Charter.
74. R. v. Red Hot Video Ltd. (1983), 6 C.C.C. (3d) 331 (B.C. Prov. Ct.);
Re Balderstone and The Queen (1982), 2 C.C.C. (3d) 37 (Man. Q.B.).
These were section 7 cases.
75. (1963), 42 D.L.R. (2d) 442 (N.S.S.C.); rev'd.
248 (N.S.S.C.).
(1964), 44 D.L.R. (2d)
76. Thorson v. A.G. Canada (1974), 43 D.L.R. (3d) 1 (S.C.C.); N.S. Board
of Censors v. McNeil (195), 55 D.L.R. (3d) 632 (S.C.C.) and Min. of
Justice (Can.) v. Borowski, (1982) 11~.W.R. 97 (S.C.C.).
77. D. Mullan, "Standing After McNeil" (1976), 8 Ott. Law Rev. 32.
78. (1979), 102 D.L.R. (3d) 486 (N.S.S.C. - App. Div.). Another example
of the expansion of standing is Finlay v. Minister of Finance of
Canada (1983), 1 Admin. L.R. 76 (F.C.A.).
79. Re Edmonton Journal and A.G. Alta. (1983), 4 C.C.C. (3d) 61 (Alta.
Q.B.). This case involved an attack on s. 12(1) of the Juvenile
68
Delinquents Act. . Contra this view see E. Ewaschuk, "The Charter:
Overview and Remedies" (1982), 26 C.R. (3d) 54, at 67.
An
80. Re Jamieson and The Queen (1982), 70 C.C.C. (2d) 430 (Que. S.C.).
81. Supra, note 79.
82. Seaway Trust Co. et al v. The Queen in Right of Ontario (1984), 5
C.R.R. 257 (Ont. H.C.).
83. Que. Assoc. of Protestant School Bds. v. A.G. Que. (No.2) (1982), 140
D.L.R. (3d) 33 (Que. S.C.) rejected drawing to sharp a line between
denials of rights and limitations on rights.
·84. Ibid., aff'd by the Que. C.A. and now on appeal to the Supreme Court
of Canada. Also see Re Federal Republic of Germany and Rauca (1983),
41 O.R. (2d) 225 (C.A.).
85. Onto Film and Video Appreciation Society v. Onto Bd. of Censors
(1983), 147 D.L.R. (3d) 58 (Ont. Div. Ct.); aff'd. in an unreported
judgement of February, 1984 (Ont. C.A.).
86. Sunday Times v. U.K., supra, note 69.
87. This position was articulated by Professor Bender at The Charter After
18 Months, a conference sponsored by the Canadian Institute for the
Administration of Justice, Winnipeg October, 1983. It will appear in
published form as part two of the following article, P. Bender, ·'The
Canadian Charter of Rights and Freedoms and the United States Bill of
Rights: A Comparison" (1983), 28 McGill L.J. 811.
87a.The decision of Ewaschuk, J. in Re Moore, an unreported decision,
January 10, 1984 (Ont. S.C.) did state that section 1 had no
application to section 12 which contained its own modifier. However,
the application of section 1 to the cruel and unusual punishment
provision was left open by Linden, J. in Re Mitchell and The Queen
(1983), 6 C.C.C. (3d) 193 (Ont. H.C.).
87b.Ridge, supra note 16; Harelkin v. The University of Regina, [19791 2
S.C.R. 561 and Glynn v. Keele University, [1971] 1 W.L.R. 487 (Eng.
Ch. D.).
88. (1982), 1 C.C.C. (3d) 477 (Que. S.C.); aff'd
C.C.C. (3d) 36 (Que. C.A.).
~
v. Vermette (1982), 3
89. Van Mulligen, supra, note 70.
90. D. Gibson, "Enforcement of the Canadian Charter of Rights and
Freedoms", in W. Tarnopolsky and G. Beaudoin, The Canadian Charter of
Rights and Freedoms: Commentary, Toronto: Carswell, 1982, at 489;
69
S. Fairley, "Enfo·rcing the Charter: Some Thoughts on an Appropriate
and Just Standard of Judicial Review" (1982), 4 S.C. Law Rev. 217 and
A. MacLellan and B. Elman, "The Enforcement of the Canadian Charter of
Rights and Freedoms: An Analysis of Section 24" (1983), 21 Alta.
L.R. 205.
91. (1983), 5 C.C.C. (3d) 409 (Sask. C .A.). This decision is no" on
appeal to the Supreme Court of Canada. For a contrary view on this
point see Re Seigel and The Queen (1982), 142 D.L.R. (3d) 426 (Ont.
H. C.) •
92. Garant, supra, note 56, at 286-90.
93. [1978] 1 S.C.R. 118.
94. Supra, note 85.
Policy guidelines were not considered "law".
95. Cooper v. Wandsworth Board of Works (1863), 143 E.R. 414 (Eng. C.P.),
is an example where procedures were implied as a matter of common law.
96. (1983), 41 O.R. (2d) 501 (Div. Ct.); rev'd. (1983), 41 O.R. (2d) 532
(C.A.).
97. R.S.O. 1980, c. 224.
98. iIogg, supra, note 57, at 65.
99. Ewaschuk, supra, note 79.
100. Supra, note 96; supra, note 91 and Re Legal Services Society and
Brahan (1983), 148 D.L.R. (3d) 692 (B.C.S.C.).
101. Gibson, supra, note 90, at 501. He emphasizes the use of the word
"tribunal" in the French text of the Charter.
102. Supra, note 87.
103.
~
v. ~ (1982), 142 D.L.R. (3d) 339 (B.C.S.C.) in an exception
where the three classes of remedies were considered separately. This
approach was not repudiated on appeal R. v. S.B. (1983), 6 C.R.R. 50
(B.C.C.A.).
104. Supra, note 34.
105. Supra, note 61.
106. Supra, note 56, at 255-274.
107. Supa, note 60. Rand, J. would certainly have supported Professor
Whyte on the appropriateness of a substantive role for the courts.
70
I.C. Rand, ·'The Role of an Independent Judiciary in Preserving Freedom
(1951), 9 U. of T. L.J. 1 and "EJ>Cept by Due Process of Law" (1961), 2
Osgoode Hall L.J. 171.
108. Supra, note 56, at 257-290.
109. Supra, note 58.
110. For a detailed analysis of the application of the American due process
model to the Canadian scene see, Manning, supra, note 56, at 257-271.
111. Supra, note 60.
112. The need for a judicial check on administrative boards will be
accentuated if the proposed amendment to section 96 of the
Constitution Act, 1867 is passed. This will give such boards wider
powers.
113. Supra, note 60 and Manning, supra, note 56, at 255-274.
114. Supra, note 49.
115. Supra, note 51.
116. Supra, note 60 and supra, note 56, at 257.
117. Supra, note 7. Although the evolution of fairness extended the
traditional role of the courts the content of fairness has been
narrowly confined.
118. The author reached the Same conclusion in a more in depth study of
fairness in the allocation of housing. Supra, note 72.
119. Lochner v. New York (1905), 198 U.S. 45. For a fuller explanation of
this era see L. Tribe, American Constitutional Law, New York: 1978,
at 427-55. Whyte, supra, note 60 suggests that Canada should not be
too traumatized by Lochner.
120. (1954), 347 U.S. 483. The actual enforcement of the Court's advanced
opinions has proven a difficult task.
121. The record of Canadian courts in interpreting the Bill of Rights
should give the advocates of substantive due process reason to pause.
122. It could be argued that the existence of section 33 is an argument for
substantive due process, as the legislature can over-ride the courts
if they go too far. However, this would not be efficient nor does it
deal with the hard question of who should decide in the first
instance.
71
123. Constitutional Amendment References 1981 (1981), 39 N.R. 1 (S.C.C.).
Other examples of highly politici:;ing decisions are those concerning
the ownership and control of natural resources.
124. MacDonald, supra, note 45, at 340-49, argues that the rights protected
in the Charter are largely those considered significant by the middle
class elite and particularly by lawyers.
125. A.G. Canada v. Lavell, [1974] S.C.R. 1349. The addition of section 28
to the Charter was largely the result of an effective women's lobby.
Women were also important in the expansion of section 15.
126. Westendorp v. The Queen (1983), 46 N.R. 30 (S.C.C.), is One example.
·127. P. Russell, "The Political Purposes of the Canadian Charter of Rights
and Freedoms" (1983), 61 Can. Bar Rev. 30.
128. Baldwin v. Missouri (1929), 281 U.S. 586, at 595, per Holmes J.
129. P. Hogg, "Is the Supreme Court Biased in Constitutional Cases" (1979),
57 Can. Bar Rev. 74.
130. See the discussion related to supra, notes 48-55.
131. (1983), 4 C.C.C. (3d) 243 (B.C.C.A.).
132. (1978), 40 C.C.C. (2d) 353 (S.C.C.).
133. The seven year minimum sentence for importation of narcotics was not
found to violate section 7 in and of itself. R. v. Randall and Weir
(1983), 58 N.S.R. (2d) 234 (N.S.S.C. - App. Di~). The same 7 day
minimum sentence that was in issue in Ref. Re Motor Vehicle Act, was
not held offensive in R. v. Konecky (1983), 6 C.C.C. (3d) 354 (B.C.
Co. Ct.).
134. R. v. Carson (1983), 4 C.C.C. (3d) 476 (Ont. C.A.).
135. Ong Ah Chuan v. Public Prosecutor, [1981] A.C. 648 (P.C.).
136. Supra, note 131, at 246.
137. Supra, note 74.
138. R. v. Watch, a unreported decision, July 5, 1983 (B.C. Prov. Ct.)
found a violation but such arguments have been more frequently
dismissed. Indeed, Watch itself was reversed on appeal, (1983), 3
C.R.D. 775.30-01 (B.C.S.C.). A more typical response is that
presented by the Nova Scotia Appeal Court in R. v. Bezanson (1983), 61
N.S.R. (2d) 181 (N.S.S.C. App. Div.).
72
139. (1983), 3 C.C.C. (3d) 198 (Ont. G.A.).
to the Supreme Court.
This decision is now on appeal
140. Ibid., at 200.
141. (1983), 43 Alta. R. 64 (Prov. Ct.). For a comment on this case see
J. Anderson, "Compulsory At tendance and the Charter" (1984), 3
Canadian School Executive (No.9), 27.
142. G. Teubner, "Substantive and' Reflexive Elements in Modern law"
(1983), 17 Law & Soc. Rev. (No.2), 239, is one recent expression of
that view. There is considerable documentation on this point. P.
Nonet, Administrative Justice, New York: Russell Sage Foundation,
1969, at 3-7. Goldberg v. Kelly 397 U.S. 254 (1970), is a case where
a procedural attack was successfully used to affect the actual
distribution of welfare payments in New York. However, there has been
a retreat from this broad approach in Mathews v. Eldridge 96 S.C.R.
893 (1970), a case which involved disability payments. A useful
exploration of the interconnection of procedure and substance is found
in, R.L. Rabin, "Some Thoughts on the Relationship Between Fundamental
Values and Procedural Safeguards In Constitutional Rights to Hearing
Cases" (1979), 16 San Diego L.R. 301.
143. Michelman, "Process and Property in Constitutional Theory" (1981), 30
Cleve. St. Law Rev. 577, at 588.
144. Supra, note 52, at 461-62.
145. (1983), 2 C.C.C. (3d) 383 (Ont. C.A.).
146. Ibid., at 391-92.
147. Howarth v. National Parole Board (1975), 50 D.L.R. (3d) 349 (S.C.C.)
and Mitchell v. The Queen (1976), 61 D.L.R. (3d) 77 (S.C.C.). This
situation was altered somewhat even before the Charter as hearings and
the right to counsel were granted in certain cases. Re Dubeau and
National Parole Board, [1981] 6 W.W.R. 272 (F.C.A.).
148. (1982), 4 C.C.C. (3d) 97 (Ont. H.C.). An appeal was heard but no
judgment rendered because Mr. Caddedu died shortly.after the hearing.
(1983), 4 C.C.C. (3d) 112 (Ont. C.A.).
149. Ibid., at 108-09.
150. Garant, supra, note 92.
151. Manning, supra, note 56, at 267-69 and M.L. Friedland, "Legal Rights
Under the Charter", a paper presented at The Charter After 18 Months,
a conference sponsored by the Canadian Institute for the
Administration of Justice, Winnipeg, October, 1983, at 11.
13
152. Supra, note 148 •. The reasoning of this case is discussed earlier in
this section.
153. This is the position advocated but not necessarily predicted by M.
Jackson, Prisoners of Isolation: Solitary Confinement in Canada,
Toronto: University of Toronto Press, 1983. In one early Charter
case the court required a hearing before an inmate could be
transferred from a medium to a maximum security institution. Collin
v. Lussier (1983), 3 C.R.D. 300-02 (F.C.T.D.). The prisoner was
awarded damages for breach of section 7.
154.
~
v. Nunery (1984), 5 C.R.R. 69 (Ont. H.C.).
155. Re ·Convoy (1982), 4 C.R.R. 278 (Ont. H.C.).
156. (1983), 35 C.R. (3d) 135 (B.C.S.C.).
157. (1983), 35 C.R. (3d) 149 (B.C.S.C.).
158. Re Lowe and The Queen (1983), 5 C.C.C. (3d) 535 (B.C. S.C.).
159. R. v. Mason (1983), 3 C.R.D. 900-150-04 (Ont. S.C.).
160. R.S.C. 1970, c. E-21.
161. In the Matter of Demarco (1983), 2 C.R.R. 314 (Ont. Co. Ct.) held that
there was no violation. Re U.S.A. and Copses (1983), 2 C.R.D. 500-01
(Ont. Co. Ct.), found that both sections 7 and 11 applied to
non-citizens and that the denial of cross-examination did violate
s. 11(d). There was no ruling as to s. 7. There are many similarly
conflicting cases in the lower courts.
162. Re United States of America and Yue (1983), 42 O.R. (2d) 651 (H.C.);
Re United States of America and Green (1983), 42 O.R. (2d) 325 (H.C.)
and Re United States of America and Smith (1983), 42 O.R. (2d) 668
·(H.C.).
163. Re Voss (1983), 3 C.R.D. 500-01 (B.C.S.C.).
164. Supra, note 162.
165. Supra, note 66, at 413, adopting the reasoning of the County Court
decision in U.S.A. v. Yue, infra.
166. U.S.A. v.
~
(1983), 3 C.R.R. 362, (Ont. Co. Ct.), at 373-74.
167. Re Terzian and Workmen's Compensation Board (1983), 42 O.R. (2d) 144
(C.A.). The removal of a COmmon law right to sue was held not to
violate section 7. Re Shingoose and Minister of Social Services
(1983), 149 D.L.R. (3d) 400 (Sask. Q.B.), few rights were accorded the
child in apprehension proceedings.
74
168. Joplin v. Chief Constable of the City of Vancouver (1983), 4 C.R.R.
208 (B.C.S.C.). A right to couns~l, not present in the statute or
regulations, was implied by the Charter for purposes of a police
disciplinary hearing.
169. Supra, note 162, at 671.
170. Supra, note 131.
171. Supra, note 88.
172. (1983), 5 C.C.C. (3d) 523 (Sask. Q.B.).
173.
v. Speicher et al (1983), 6 C.C.C. (3d) 262 (B.C. S.C.), emphasized
that the different application of s. 507 of the Criminal Code in
different provinces did not violate s. 7.
~
174. (1982), 2 C.C.C. (3d) 37 (Man. Q.B.).
175. (1983), 4 C.C.C. (3d) 333 (Man. C.A.).
176. Supra, note 173.
177. (1983), 2 C.R.R. 324 (Ont. H.C.).
178. (1982) , 1 C.R.R. 206 (Ont. H.C.).
179. (1983) , 3 C.R.R. 271 (B.C.S.C.).
180. Supra, note 145.
181. (1982), 2 c.C.C. (3d) 412 (Ont. C.A.).
182.
~
v. Altseimer (1983), 1 C.C.C. (3d) 7 (Ont. C.A.), at 13.
183. (1983), 5 C.C.C. (3d) 573 (Sask. Q.B.).
184. Jamieson, supra, note 80.
185. This was what was advocated by Manning, supra, note 56, at 261-64
186. See Samek, supra,
•• Judicial Process
Reference and its
Osgoode Hall L.J.
note 5; MacDonald, supra, note 45 and W. MacKay,
in the Supreme Court of Canada: The Pa triation
Implications for the Charter of Rights" (1983), 21
55.
187. Supra, note 72, at 412.
188. Supra, note 60.
15
189. Supra, note 72, at 405.
190. Ibid., at 446.
191. C. Boyle, Sexual Assault, Toronto:
Carswell, 1984, at Ch. 2.
192. (1982), 135 D.L.R (3d) 307 (N.B.Q.B.); aff'd. on other grounds (1982),
44 N.B.R. (2d) 201 (C.A.).
193. (1982), 17 Man. R. (2d) 350 (C.A.).
194. Elliott v. Director of Social Services, an unreported decision
December I, 1982 (Man. C.A.).
195. Finlay v. Director of Welfare (Winnipeg) (1976), 71 D.L.R. (3d) 597
(Man. C.A.).
196. (1982), 18 Man. R. (2d) 440 (C.A.).
197. Shingoose, supra, note 167.
198. R.S.C. 1970, c. N-1, s. 10.
199. (1983), 32 C.R. (3d) 117 (Ont. Prov. Ct.).
200. Joplin, supra, note 168 is an example. Other cases have relied upon
section 10 in isolation. R. v. Nelson (1982), 3 C.C.C. (3d) 147
(Man. Q.B.).
201. Re Rosenbaum and Law Society of Manitoba (1983), 150 D.L.R (3d) 352
(Man. Q.B.) and Law Society of Manitoba v. Savino (1983), 23 Man. R.
293 (C.A.).
202. Black et al v. Law Society of Alberta (1983), 144 D.L.R. (3d) 439
(Alta. Q.B.).
203. Rosenbaum, supra, note 201; Re James and Law Society of B.C. (1982),
143 D.L.R. (3d) 379 (B.C. S.C.) and Belhumeur v. Comit~ de Discipline
du Barreau (1983), 34 C.R. (3d) 279 (Que. S.C.).
204. Donald v. Law Society of B.C., an unreported decision, November 29,
1983 (B.C.C.A.) and Amorell~ and The Queen (1983), 6 C.C.C. (3d) 93
(Que. S.C.).
205. Re Crooks and The Queen (1982), 2 C.C.C. (3d) 57 (Ont. C.A.); now on
appe?l to the Supreme Court of Canada.
206. Supra, note 134 and Bezanson, supra, note 138.
207. Re Southam and The Queen (1983), 3 C.C.C. (3d) 515 (Ont. C.A.) and R.
v. Sophonow (1983), 21 Man. R. (2d) 110 (C.A.), are two examples.
•
76
208. (1983), 2 C.C.C.(3d) 417 (Ont. C.A.); now on appeal to the Supreme
Court of Canada.
209. Supra, note 173.
210. (1983), 1 C.C.C. (3d) 47 (B.C.S.C.). In another case Re Moore, an
unreported decision, January 10, 1984 (Ont. S.C.), Ewaschuk J.
rejected the argument that dangerous offender decisions based upon the
speculative predictions of psychiatrists, violated the principles of
"fundamental justice". Arginnents based on "arbitrary detention" under
section 9, and cruel and unusual punishment under section 12 of the
Charter, have also failed. R. v. Lyons, an unreported decision,
January 30, 1984 (N.S. Co. C~). This latter decision is on appeal.
211. R.S.C. 1970, c. 1-6.
212. R. v. Hayden (1983), 6 C.R.R. 23 (Man. Provo Ct.); rev'd. (1983), 3
C7R.D. 25-03 (Man. C.A.).
213. B. Hovius and R. Martin, "The Cansdian Charter of Rights and Freedoms
in the Supreme Court of Canada" (1983), 61 Can. Bar Rev. 354, at 364
and A. Roman, "The Charter of Rights: Renewing the Social Contract?"
(1982-83), 8 Queens L.J. 188, at 192-93, substantiate this view.
214. R. v. MacIntryre et al (1982), 139 D.L.R. (3d) 602 (Alta. Q.B.), at
606.
215. Re Federal Republic of Germany and Rauca, supra, note 84, at 244 •

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