S.7: right to life, liberty, & security of person unless deprived
thereof through fundamental justice
s.8: Unreasonable search and seizure is forbidden.
9. Arbitrary (illegal) detention or imprisonment is forbidden.
10. Everyone who is arrested or detained has the right:
a) to be told why immediately
b) to retain a lawyer and be told of this right
c) habeas corpus (to be freed if illegally detained)
11. Persons charged with offences have the right
a) to be informed reasonably quickly of the charge
b) to a trial within a reasonable time
c) not to be a witness against oneself
d) to be presumed innocent until proven guilty before an independent
and impartial judge
e) to bail unless unreasonable
f) to trial by jury if liable to 5 yrs in jail
12. No one can be subjected to cruel or unusual treatment or punishment.
13. Evidence given by a witness in court can't be used against that
witness later on.
14. Everyone has a right to an interpreter.
Today: we're covering
-Singh: S. 7, & and fundamental justice in Canadian Bill
-Therens: right to counsel: S. 10(b)
-B.C. Motor Vehicle Act Case: S. 7: substantive or procedural?
-Valente: S. 11(d): right to ind & impartial tribunal
-Tuesday: We're covering Askov, Rodriguez, Mills, and Edelson
Discussion of refugee determination process
-pre-Singh: those not approved abroad apply
at airport; examined by an officer; transcript sent to Ref St Adv Comm.
Rec to Min. Ap allowed to Ap Bd;
can det with minister’s evidence and transcript,
& no oral hearing
Both Charter & Bill of Rights issues raised, so court requested
additional submissions on Bill.
Impugned: ref det process under Imm Act
Wilson: decided under s. 7 of Charter. “Everyone”
Is it life, liberty or sec of person at stake here? Sec of person.
Is this violation in accord with fundamental justice? No.
Fundamental justice nat justice prin of “hear both sides.” App
has a rt to know case against self, and reply to it. Therefore, oral
S. 1: crown presented no arguments.
Beetz: Bill of Rights still there
-right to “a fair hearing acc to fundamental justice
to det rights and obligations” violated
Beetz strikes down part of Immigration Act according to the Bill; other
judges concur. First case since Drybones that legislation has been
struck down pursuant to the Canadian Bill of Rights. The decision
resurrects the Bill of Rights. Beetz also refers to statutory bills
of rights as “constitutional or quasi-constitutional.”
Fed gov’t totally unprepared
backlog in ref cases: 3 yrs
some took advantage of backlog; some bona fide refugees stopped at
border (Charter does not apply outside)
May 1987: C-55, “safe 3rd cty”
C-84: apprehend ships at sea; penalty for assisting ref applicants
who had not applied abroad
tremendous opposition to bills
CRDD created, but members mostly patronage appointments then
1982: Therens collided with tree in Moose Jaw; taken to police station
for breathalizer test. Not told of right to counsel.
If he’d refused test, would have been charged with refusing:
Police didn’t inform because operating on Bill of Rts precedents:
requesting a breath’zer test not “detention.”
Le Dain: B of Rts precents don’t necessary apply to Ch
Is preventing contact with counsel a “reasonable limit?”
No: not “prescribed bylaw,” and there’s time in 2 hrs.
Would admitting the evidence bring admin of justice into disrepute?
(s. 24 - 2)?
Majority (Estey): yes
Dissent on this issue: Le Dain says admit evid here; exclude
in future. McIntyre dissented too: not to admit brings admin
of justice into disrepute.
Aftermath: 1000s of cases dropped
B.C. Motor Veh Act Case (1985)
1982: BC gov’t created an “absolute liability” offence: if
you drive with license suspended, automatic jail term. Mens rea not
Issue: does an ab liab offence violate “fund justice” in s. 7
BC gov’t sent ref question to BC CA in 1982; app’d to SCC
Should “fundamental justice” be interpreted in a procedural or substantive
Procedural: life, lib and sec of person can always be limited,
if correct procedures followed
Substantive: in some cases, even correct procedures cannot justify
limiting life, lib or sec of person
debates in Parliament: framers wanted S. 7 interpreted in a procedural
way; fear of repeat of “Lochner era” in U.S., where U.S. js interpreted
“due process” in a substantive way, and stopped social welfare reforms
B.C. Motor Veh Act Case (2), & Valente
Lamer: legislative history should be admitted but given “minimal
weight,” as no proof that a maj of MPs and Senators agree with the views
Lamer: combination of an absolute liability offence, and a jail
term, results in a violation of fundamental justice.
S. 1: it’s possible that the crown could prove a reasonable limit,
but crown did not present any evidence on this issue.
Therefore, a “reasonable limit” has not been established
Established that there are 3 “essential conditions” for jud ind:
-security of tenure: must be imp inquiry before
a j can be removed
-financial security: legislated right to a
-institutional independence: judges must control
those aspects of case flow directly affecting adjudication