Renvoi+sur+la+Motor+Vehicle+Act

=Renvoi sur la Motor Vehicle Act *1985 *SCC=


 * Facts and Issue :** The Lieutenant Governor of BC submitted the following question to the BC Court of Appeal **: Is para. 94(2) of the //Motor Vehicle Act// (BC) compatible with the Charter?** Appealled to SCC.

Para. 94 (1) of the //Act// specified that someone who drives a vehicle and is (a) prohibited from doing so under para. 90-92 or (b) had their licence suspended commits an offence and (c-d) is guilty to pay a fine and face punishment of up to one year. The **controversial part is para. 94(2)** which stipulates that para. 1 **creates an absolute liability offence in which guilt is merely established by proof of driving** (regardless of whether the defendant knew of the prohibition or suspension).


 * Holding:** Appeal dismissed. NO, Act not compatible.

-A law that declares someone guilty who has not done anything wrong violates the principles of fundamental justice and if it prescribes a punishment of imprisonment, such a law violates the right to liberty guaranteed by s.7 of the Charter. -Whether “principles of fundamental justice” has a procedural/substantive question is besides the point. -Proposes that follow Dickson J.’s interpretation of s.7 in //Hunter v Southam Inc//. : There is a purposive approach to interpreting Charter rights and freedoms (means to find the purpose of guarantee look at the interests it is to protect)
 * Reasoning :**
 * Lamer J.**

** Principles of fundamental justice **
-The interests which are meant to be protected by the words "and the right not to be deprived thereof except in accordance with the principles of fundamental justice" of s. 7 are the life, liberty and security of the person. The principles of fundamental justice, on the other hand, are not a protected interest, but rather a qualifier of the right. -The narrower the meaning given to "principles of fundamental justice" the greater will be the possibility that individuals may be deprived of these most basic rights. = avoid! Fundamental justice is NOT equal to “natural justice” (legislator did not use those words) -Equating “principles of fundamental justice” with natural justice would mean the right to liberty would be more restrained than those rights emanating from it in ss. 8 to 14.
 * - “The term "principles of fundamental justice" is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right…ss. 8 to 14 address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7.”**

-Regarding admissibility of extrinsic evidence, Lamer J agrees to admit evidence from Senate and House of Commons committee proceedings regarding content of s.7 but gives it practically no weight. Impossible to determine legislture’s intent. -Lack of weight given to such evidence helps to avoid frozen approach to Charter rights, a stunting of the living tree of the Constitution.

- Absolute liability in penal law offends the principles of fundamental justice (due to this longstanding principle that the innocent should not be punished) but it does not per se offend s.7 of the Charter. -The combination of imprisonment and absolute liability violates s. 7 and can only be salvaged if the authorities demonstrate under s. 1 that such a deprivation of liberty in breach of those principles of fundamental justice is, in a free and democratic society, under the circumstances, a justified reasonable limit to one's rights under s. 7. -administrative expediency will fail as an argument to defend absolute liability where there is imprisonment unless there are exceptional conditions like war -the violation of the freedom here is not justifiable – the risk of imprisonment of a few innocent to help rid the roads of bad drivers is not a reasonable limit in a free and democratic society
 * Absolute Liability and Fundamental Justice in Penal Law:**
 * -A longstanding principle of our law is that the innocent should not be punished - //actus non facit reum nisi mens sit rea.//**
 * -A law enacting an absolute liability offence will violate s. 7 of the //Charter// if it has the potential of depriving the life, liberty, or security of the person. In the instant case, imprisonment (although open to the discretion of the judge to apply) under para. 94(2) deprives persons of their liberty.**


 * Ratio: In penal law, absolute liability always offended the principles of fundamental justice – it offends s.7 if as a result, anyone is deprived of his/her life, liberty, or security of the person irrespective of the public interest requirement. It might only be salvaged for reasons of the public interest under s.1.**

-statutory offences are subject to a presumption of a //mens rea// requirement in interpretation but legislatures may create non //mens rea// offences if they make it clear that the //actus reus// itself is prohibited (regulatory offences) -ask two questions: -Does not view “in accordance with the principles of fundamental justice” as the parameters by which to determines the content of the right to life, liberty and security of person. -**While s.7 does not provide a right to the principles of fundamental justice per se, any limit on the s. 7 right which has been imposed in violation of the principles of fundamental justice can NOT be either "reasonable" or "demonstrably justified in a free and democratic society". – no need to go to s.1.** -The internal limit in s.7 is there to accommodate the criminal justice system (this is where citizens typically lose their liberty to the govt). The criminal system must not cause them to lose their liberty in violation of the principles of fundamental justice. Penal provisions must be interpreted in relation to this. - We cannot say (like Lamer) that absolute liability and imprisonment can never co-exist in a statutory context as legislatures can supersede the common law (which reserved imprisonment for more serious //mens rea// offences) - However, where the legislature imposes this combination in clear and unambiguous manner, it must still meet the test of s. 7. -Unlike Lamer, does not think ss.8 – 14 are much use in interpreting “in accordance with the principles of fundamental justice. -Not sure what “principles of fundamental justice” means without further clues from the legislature – thusurns to theory of punishment for answer: -There are five main goals of a penal system 1. protect offenders against unofficial retaliation 2. reduce incidence of crime 3. atonement of offences 4. keep punishment to minimum necessary 5. express society’s abhorrence of crime Imprisonment should be punishment of last resort. -The penalty in s.94(2) is unreasonable and extravagant. It is totally disproportinate to the offence and incompatible with the objective mentioned in 4. above. -A sentence must be proportionate to the seriousness of the offence. -The punishment here is not required to reduce the incidence of the offence, satify the need for "atonement". And society would not be abhorred by an unintentional and unknowing violation of the Act in question. -Section 94(2) is accordingly inconsistent with s. 7 of the //Charter// and must, to the extent of the inconsistency, be declared of no force and effect under s. 52
 * Wilson J- concurs with Lamer on decision but but differs on reasoning**
 * 1) Do absolute liability offences created by statute //per// //se// offend the //Charter//? No.
 * 2) Assuming they do not, can they be accompanied by mandatory imprisonment or can this sanction only be attached to true //mens// //rea// offences?