SECTION 7

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Updated: July 2004

OVERVIEW

Where a court is
called upon to determine whether s. 7 has been infringed, the analysis consists
of three main stages. The first question is whether there exists a real or
imminent deprivation of life, liberty, security of the person, or a combination
of these interests. The second stage involves identifying and defining the
relevant principle or principles of fundamental justice. Finally, it must be
determined whether the deprivation has occurred in accordance with the relevant
principle or principles. Section 7 mandates a contextual analysis, which
involves a balance. Each principle of fundamental justice must be interpreted
in light of those other individual and societal interests that are of
sufficient importance that they may appropriately be characterized as
principles of fundamental justice in Canadian society: R. v. White,
[1999] 2 S.C.R. 417; Blencoe v. B.C. (Human Rights Commission), [2000] 2
S.C.R. 307, 2000 SCC 44.

The restrictions
that s. 7 is concerned with are those that occur as a result of an individual’s
interaction with the justice system and its administration (New Brunswick
(Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46.
Section 7 does not include property or economic rights, except perhaps those
fundamental to human life or survival (Irwin Toy Ltd. v. Quebec (Attorney
General), [1989] 1 S.C.R. 927; Gosselin v. Quebec (Attorney General),
[2002] 4 S.C.R. 429, 2002 SCC 84). Nevertheless, while the “liberty”
it protects is not unconstrained freedom, it is more than mere freedom from
physical restraint: B.(R.) v. Children’s Aid Society, [1995] 1 S.C.R.
315. Section 7 can extend beyond the penal context, at least where there is
“state action which directly engages the justice system and its
administration (Blencoe v. B.C. (Human Rights Commission), supra).
Further, the right to security of the person protects both the physical and
psychological integrity of the individual, but does not extend to the ordinary
stresses and anxieties that a person of reasonable sensibility would suffer as
a result of government action (New Brunswick (Minister of Health and
Community Services) v. G.(J.), supra).

The “principles
of fundamental justice” are not a protected interest, but rather a
qualifier of the right not to be deprived of life, liberty and security of the
person. As a qualifier, the phrase serves to establish the parameters of the
interests but it cannot be interpreted so narrowly as to frustrate or stultify
them (Reference re S. 94(2) Motor Vehicle Act, [1985] 2 S.C.R. 486). A
mere common law rule does not suffice to constitute a principle of fundamental
justice; rather, as the term implies, principles on which there is some
consensus that they are vital or fundamental to our societal notion of justice
are required. Principles of fundamental justice must not, however, be so broad
as to be no more than vague generalizations about what our society considers to
be ethical or moral. They must be capable of being identified with some
precision and applied to situations in a manner which yields an understandable
result: Rodriguez v. British Columbia (Attorney General), [1993] 3
S.C.R. 519. The inquiry into the principles of fundamental justice is informed
not only by Canadian experience and jurisprudence, but also by international
law, including jus cogens: Suresh v. Canada (Minister of Citizenship
and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1.

Section 7 may, in
certain contexts, provide residual protection to the interests protected by
specific provisions of the Charter. It does so in the case of s. 11(c) which
protects a person charged from being compelled to be a witness in proceedings
against that person and s. 13 which protects a witness against
self-incrimination, but s. 7 does not give an absolute right to silence or a
generalized right against self-incrimination on the American model: Thomson
Newspapers Ltd. v. Canada, [1990] 1 S.C.R. 425; R. v. Brown, [2002]
2 S.C.R. 185, 2002 SCC 32. The principle against self-incrimination is not
absolute and may reflect different rules in different contexts: R. v. S.
(R.J.), [1995] 1 S.C.R. 451.

CHARTER
DECISIONS

Headings used in
this section:

[1] Scope of the Guarantee. 3

[2]
“Everyone”. 5

[3] “Life”. 6

[4]
“Liberty”. 6

[5] “Security
of the Person”. 11

[6] “Principles
of Fundamental Justice”. 16

[6.A] Nature and
Sources of the “Principles”. 16

[6.B] Substantive
Application. 23

[6.C] Procedural
Application. 34

[6.D] Vagueness and
Overbreadth of Statutory Language. 40

[6.E] Extradition
Cases. 47

[6.F] Exclusion of
Evidence Obtained Abroad. 54

[7] Property and
Economic Rights. 56

[8] Civil Causes of
Action and Procedure. 58

[9] Disclosure and
Discovery in Criminal Cases. 61

[10] Pre-Charge and
Appellate Delay. 70

[11] Right to
Competent Counsel / Right to Counsel at State’s Expense. 72

[12] Access to
Wiretap Packets. 77

[13] Right to Remain
Silent / Self-Incrimination. 81

[14] Relationship
With Sections 8-14. 94

[1] Scope of the Guarantee

There is no longer
any doubt that s. 7 of the Charter is not confined to the penal context.
Section 7 can extend beyond the sphere of criminal law, at least where there is
“state action which directly engages the justice system and its
administration.” If a case arises in the human rights context which, on
its facts, meets the usual s. 7 threshold requirements, there is no specific
bar against such a claim and s. 7 may be engaged. The question to be addressed,
however, is not whether delays in human rights proceedings can engage s.
7 of the Charter but rather, whether the respondent’s s. 7 rights were actually
enegaged by delays in the circumstances of this case. Various parties in this
case seem to have conflated the delay issue with the threshold s. 7 issue.
However, whether the respondent’s s. 7 rights to life, liberty and security of
the person are engaged is a separate issue from whether the delay itself was
unreasonable. Before it is even possible to address the issue of whether the
respondent’s s. 7 rights were infringed in a manner not in accordance with the
principles of fundamental justice, one must first establish that the interest
in respect of which the respondent asserted his claim falls within the ambit of
s. 7. These two steps in the s. 7 analysis have been set out by La Forest J. in
R. v. Beare, as follows: ” to trigger its operation there must first be a
finding that there has been a deprivation of the right to “life, liberty
and security of the person” and, secondly, that the deprivation is contrary
to the principles of fundamental justice.” Thus, if no interest in the
respondent’s life, liberty or security of the person is implicated, the s. 7
analysis stops there. In this case, McEachern C.J.B.C. collapsed the s. 7
interests of “liberty” and security of the person” into a single
right protecting a person’s dignity against the stigma of undue, prolonged
humiliation and public degradation of the kind suffered by the respondent. In
addressing the issue of whether the respondent’s s. 7 rights have been breached
in this case, I prefer to keep the interests protected by s. 7 analytically
distinct to the extent possible. The Charter and the rights it guarantees are
inextricably bound to concepts of human dignity. This does not mean, however,
that dignity is elevated to a free-standing constitutional right protected by
s. 7 of the Charter. The notion of “dignity” in the decisions of this
Court is better understood not as an autonomous Charter right, but rather, as
an underlying value. According to the respondent, in this case, the human
dignity of a person is closely tied to a person’s reputation and privacy
interests. While this Court found in Hill v. Church of Scientology of Toronto
that reputation was a concept underlying Charter rights, it too is not an
independent Charter right in and of itself. Respect for a person’s reputation,
like respect for dignity of the person, is a value that underlies the Charter.
These two values do not support the respondent’s proposition that protection of
reputation or freedom from the stigma associated with human rights complaints
are independent constitutional s. 7 rights. I would agree with the following
passage from Reference re ss. 193 and 195.1(1) (c ) of the Criminal Code, wherein Lamer J. cautioned:
“If liberty or security of a person under s. 7 of the Charter were defined
in terms of attributes such as dignity, self-worth and emotional well-being, it
seems that liberty under s. 7 would be all inclusive. In such a state of
affairs there would be serious reason to question the independent existence in
the Charter of other rights and freedoms such as freedom of religion and
conscience or freedom of expression”. Blencoe v. B.C. (Human Rights
Commission), [2000] 2 S.C.R. 307, 2000 SCC 44.

In United States
v. Burns, nothing in our s. 7 analysis turned on the fact that the case
arose in the context of extradition rather than refoulement. Rather, the
governing principle was a general one — namely, that the guarantee of
fundamental justice applies even to deprivations of life, liberty or security
effected by actors other than our government, if there is a sufficient causal
connection between our government’s participation and the deprivation
ultimately effected. We reaffirm that principle here. At least where Canada’s
participation is a necessary precondition for the deprivation and where the
deprivation is an entirely foreseeable consequence of Canada’s participation,
the government does not avoid the guarantee of fundamental justice merely
because the deprivation in question would be effected by someone else’s hand.
We therefore disagree with the Court of Appeal’s suggestion that, in expelling
a refugee to a risk of torture, Canada acts only as an “involuntary
intermediary”. Without Canada’s action, there would be no risk of torture.
Accordingly, we cannot pretend that Canada is merely a passive participant.
That is not to say, of course, that any action by Canada that results in
a person being tortured or put to death would violate s. 7. There is always the
question, as there is in this case, of whether there is a sufficient
connection between Canada’s action and the deprivation of life, liberty, or
security: Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3, 2002 SCC 1.

In this case, the
appellant argues that the right to a level of social assistance sufficient to
meet basic needs falls within s. 7. Can s. 7 apply to protect rights or
interests wholly unconnected to the administration of justice? The question
remains unanswered. Even if s. 7 could be read to encompass economic rights, a
further hurdle emerges. Section 7 speaks of the right not to be deprived
of life, liberty and security of the person, except in accordance with the
principles of fundamental justice. Nothing in the jurisprudence thus far
suggests that s. 7 places a positive obligation on the state to ensure that
each person enjoys life, liberty or security of the person. Rather, s. 7 has
been interpreted as restricting the state’s ability to deprive people of
these. Such a deprivation does not exist in the case at bar. One day s. 7 may
be interpreted to include positive obligations. It would be a mistake to regard
s. 7 as frozen, or its content as having been exhaustively defined in previous
cases. The question therefore is not whether s. 7 has ever been — or will ever
be — recognized as creating positive rights. Rather, the question is whether
the present circumstances warrant a novel application of s. 7 as the basis for
a positive state obligation to guarantee adequate living standards. I conclude
that they do not. I leave open the possibility that a positive obligation to
sustain life, liberty, or security of person may be made out in special
circumstances. However, this is not such a case : Gosselin v. Quebec
(Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84.

[2]
“Everyone”

Read as a whole, it
appears that s. 7 was intended to confer protection on a singularly human
level. A plain, common sense reading of the phrase “Everyone has the right
to life, liberty and security of the person” serves to underline the human
element involved; only human beings can enjoy these rights.
“Everyone” then, must be read in light of the rest of the section and
defined to exclude corporations and other artificial entities incapable of
enjoying life, liberty or security of the person, and include only human
beings. In this regard, the case of R. v. Big M Drug Mart Ltd., [1985] 1
S.C.R. 295 is of no application. There are no penal proceedings pending in this
case, so the principle articulated in Big M Drug Mart is not involved: Irwin
Toy Ltd. v. A. G. Que., [1989] 1 S.C.R. 927; Dywidag Systems v. Zutphen
Brothers Construction Ltd., [1990] 1 S.C.R. 705; Thomson Newspapers Ltd.
v. Canada, [1990] 1 S.C.R. 425; British Columbia Securities Commission
v. Branch, [1995] 2 S.C.R. 3.

The minor
differences in wording between s.7 of the Charter and s.1(a) of the Canadian
Bill of Rights provide no scope for a successful argument that Parliament
intended to extend, in the Charter, the guaranteed rights to a wider, and
different, category of species than those recognized in the Canadian Bill of
Rights. A foetus has never been recognized as a legal person, and the mere
fact that rights set out in the Charter are now guaranteed does not permit the
inference that Parliament intended to include foetuses in the term
“everyone”: Borowski v. A.G. Canada et al. (1984), 8 C.C.C. (3d) 392 (Sask. Q.B.); appeal
dismissed, (1987), 33 C.C.C. (3d) 402 (Sask. C.A.); appeal dismissed as moot
[1989] 1 S.C.R. 342.

The term
“everyone” includes every human being who is physically present in
Canada and by virtue of such presence amenable to Canadian law: Singh et al.
v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.

[3]
“Life”

The appellant argues
that, by prohibiting anyone from assisting her to end her life when her illness
has rendered her incapable of terminating her life without such assistance, by
threat of criminal sanction, s. 241(b) of the Criminal Code deprives her
of both her liberty and her security of the person. A consideration of these
interests cannot be divorced from the sanctity of life, which is one of the
three Charter values protected by s. 7. The fact that it is the criminal
prohibition in s. 241(b) which has the effect of depriving the appellant of the
ability to end her life when she is no longer able to do so without assistance
is a sufficient interaction with the justice system to engage the provisions of
s. 7: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R.
519.

[4]
“Liberty”

The appellants in
this case submitted that the challenged law violates their right under s. 7 to
pursue a lawful occupation. Additionally, they submitted that it restricts
their freedom of movement by preventing them from pursuing their chosen
profession in a certain location, namely, the Town of Winkler. However, as a
brief review of this Court’s Charter jurisprudence makes clear, the
rights asserted by the appellants do not fall within the meaning of s. 7. The
right to life, liberty and security of the person encompasses fundamental life
choices, not pure economic interests. As La Forest J. explained in Godbout
v. Longueuil (City): “. . . the autonomy protected by the s. 7 right to
liberty encompasses only those matters that can properly be characterized as
fundamentally or inherently personal such that, by their very nature, they
implicate basic choices going to the core of what it means to enjoy individual
dignity and independence”: Siemens v. Manitoba (Attorney General),
[2003] 1 S.C.R. 6, 2003 SCC 3.

Liberty means more
than freedom from physical restraint. It includes the right to an irreducible
sphere of personal autonomy wherein individuals may make inherently private
choices free from state interference. This is true only to the extent that such
matters “can properly be characterized as fundamentally or inherently
personal such that, by their very nature, they implicate basic choices going to
the core of what it means to enjoy individual dignity and independence”: Godbout
v. Longueuil (City). While we accept Malmo-Levine’s statement that smoking
marihuana is central to his lifestyle, the Constitution cannot be stretched to
afford protection to whatever activity an individual chooses to define as
central to his or her lifestyle: R. v. Malmo-Levine; R. v. Caine, [2003]
3 S.C.R. 571, 2003 SCC 74.

The fingerprinting
requirements of the Identification of Criminals Act infringe the rights
guaranteed by s. 7 because they require a person to appear at a specific time
and place and oblige that person to go through an identification process on
pain of imprisonment for failure to comply. However, where there is reasonable
and probable cause to believe that a person has committed an offence, it cannot
be seriously argued that subjecting a person to these procedures violates the
principles of fundamental justice: Beare v. R., [1988] 2 S.C.R. 387.

The appellant in
this case contends that the 1986 amendment to the Parole Act changing
the conditions for release on mandatory supervision amount to a denial of his
liberty contrary to the principles of fundamental justice. The respondent’s
argument that because the appellant was sentenced to twelve years’ imprisonment
there can be no further impeachment of his liberty interest within the
twelve-year period runs counter to previous pronouncements, and oversimplifies
the concept of liberty. This and other courts have recognized that there are
different types of liberty interests in the context of correctional law. In Dumas
v. LeClerc Institute, [1986] 2 S.C.R. 459, Lamer J. identified three
different deprivations of liberty: (1) the initial deprivation of liberty; (2)
a substantial change in conditions amounting to a further deprivation of
liberty; and (3) a continuation of the deprivation of liberty. In R. v.
Gamble, [1988] 2 S.C.R. 595, this Court held by a majority that the liberty
interest involved in not continuing the period of parole ineligibility may be
protected by s. 7 of the Charter. Here, the manner in which the
appellant may serve a part of his sentence, the second liberty interest
identified in Dumas, has been affected. One has “more”
liberty, or a better quality of liberty, when one is serving time on mandatory
supervision than when one is serving time in prison: Cunningham v. Canada,
[1993] 2 S.C.R. 143.

The appellants in
this case claim that parents have the right to choose medical treatment for
their infant, relying for this contention on s. 7 of the Charter, and more precisely
on the liberty interest. They assert that the right enures in the family as an
entity, basing this argument on statements made by American courts in the
definition of liberty under their Constitution. While American experience may
be useful in defining the scope of the liberty interest protected under our
Constitution, s. 7 of the Charter does not afford protection to the integrity
of the family unit as such. The Charter, and s. 7 in particular, protects
individuals. Liberty does not mean unconstrained freedom. Freedom of the
individual to do what he or she wishes must, in any organized society, be
subjected to numerous constraints for the common good. The state undoubtedly
has the right to impose many types of restraints on individual behaviour, and
not all limitations will attract Charter scrutiny. On the other hand, liberty
does not mean mere freedom from physical restraint. In a free and democratic
society, the individual must be left room for personal autonomy to live his or
her own life and to make decisions that are of fundamental personal importance.
However, a majority of the Supreme Court of Canada in this case could not agree
on whether the appellants had been deprived of their liberty when the
Children’s Aid Society was granted wardship of their daughter on the basis that
she was a “child in need of protection” within the meaning of the Ontario Child
Welfare Act: B. (R.) v. Children’s Aid Society, [1995] 1 S.C.R. 315.

It is germane to
observe that the liberty interest may be engaged although there is no
coincident deprivation in respect of the other s. 7 interests, life or security
of the person. Moreover, not every restriction on absolute freedom constitutes
a deprivation of liberty for s. 7: R. v. S. (R.J.), [1995] 1 S.C.R. 451.

The liberty interest
is engaged at the point of testimonial compulsion. Once it is engaged, the
investigation then becomes whether or not there has been a deprivation of this
interest in accordance with the principles of fundamental justice: British
Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; Application
under s. 83.28 of the Criminal Code (Re), 2004 SCC 42.

In this case, it is
beyond doubt that the appellant’s s. 7 liberty interest is engaged by the
introduction of statutorily compelled information at his trial for the offences
against s. 239 of the Income Tax Act, owing to the threat of
imprisonment on conviction: R. v. Jarvis, [2002] 3 S.C.R. 757, 2002 SCC
73.

The weight of
judicial authority is firmly against the conclusion that the right to drive is
a liberty within the meaning of s. 7 of the Charter: Horsefield v. Ontario,
(1999), 172 D.L.R. (4^th) 43 (Ont. C.A.); Buhlers v. British
Columbia, (1999), 170 D.L.R. (4^th) 344 (B.C.C.A.).

A grievor under the Public
Service Staff Relations Act, even where discharge as a result of alleged
misconduct is in issue, is not a person charged with an offence nor is the
life, liberty or security of the person at stake: Forgie v. Public Service
Staff Relations Board, (1987), 32 C.R.R. 191 (F.C.A.).

The s. 7 right to
liberty does not encompass a constitutional right to practice one’s profession,
hence a provincial regulation providing for the mandatory revocation of a
physician’s licence for sexual abuse of a patient is not open to challenge
under s. 7: Mussani v. College of Physicians and Surgeons of Ontario, (2003),
226 D.L.R.(4th) 511, 64 O.R.(3d) 641 (Ont. Div. Ct.).

The question of what
liberties are included in s. 7 was broached by Lamer J. in Reference re Criminal Code (Man.), [1990] 1 S.C.R.
1123. The other members of the majority did not find it necessary to deal with
the precise question with which Lamer J. dealt extensively. It is a complete
theory of s. 7, the only one which has been authoritatively put forth thus far.
It attempts to unite the perspectives of the protected triad of rights
(“life, liberty and the security of the person”) and of the
principles of fundamental justice, since it enunciates “the kind of life, liberty
and security of the person sought to be protected through the principles of
fundamental justice”. It is also in accord with the previous approaches to
the issue by the Supreme Court. As well, it avoids the pitfalls of judicial
interference in general public policy. It may or may not come to represent the
final judicial statement of the meaning of s. 7, but any eventual judicial
synthesis will likely be an approximation of Lamer J.’s view. Accordingly, s. 7
is implicated when physical liberty is restricted in any circumstances, when
control over mental or physical integrity is exercised, or when the threat of
punishment is invoked for non-compliance. There is nothing of that kind, or
within striking distance of it, on the facts of the case at bar. The Appellants
say only that the filing of a certificate invoking absolute privilege under s.
39 of the Canada Evidence Act deprives them of the “liberty ”
of having an administrative decision reviewed and controlled by the courts.
However, the jurisprudence shows that such a right can be precluded entirely
except as to jurisdiction, where the executive branch is involved, even when
fairness itself is at stake: Canadian Association of Regulated Importers v.
A.G. Canada, [1992] 2 F.C. 130 (F.C.A.); leave to appeal refused
(S.C.C., June 25, 1992).

As Lamer J. points
out in Re ss. 193 and 195.1 of the Criminal Code, supra, the
restrictions on liberty that s. 7 is concerned with are those that occur as a
result of an individual’s interaction with the justice system and its
administration. He goes on to state that the rights under s. 7 do not extend to
the right to exercise a chosen profession. The trial judge dismissed the
statement by Lamer J. because the profession under consideration in that case
was prostitution. However, his words apply equally to the accounting or any
other profession. Accordingly, this Court must conclude that the restriction in
s-s. 14(1) of the Public Accounting and Auditing Act limiting the right
to practice that profession does not engage s. 7 of the Charter: Government
of P.E.I. v. Walker, (1993), 107 D.L.R. (4th) 69 (P.E.I.C.A.); appeal
dismissed, [1995] 2 S.C.R. 407 (S.C.C.).

Although the Supreme
Court, in Chiarelli v. M.E.I., infra, in deciding the issue on the basis
of fundamental justice, left open the question whether deportation for serious
offences can be conceptualized as a deprivation of liberty under s. 7, this
Court has already decided that it cannot, and is bound by its previous
decisions: Canepa v. M.E.I., [1992] 3 F.C., 270 (F.C.A.); Barrera v.
Canada (M.E.I.), [1993] 2 F.C. 3 (F.C.A.).

Section 7 deals with
individual rights, not collective rights such as the right of union members to
strike. In the context of the negotiation of a labour agreement, the individual
rights of the members of a union are exercised, discussed and expanded in a
collective process which, by necessity, is subject to a set of different rules
to ensure its proper functioning. The individual members delegate the exercise
of their rights to a collective bargaining unit with the possibility, if need
be, of resorting to a collective action such as a strike. The trial judge was
right in his conclusion that the Maintenance of Ports Operations Act did
not violate s. 7 by reason that it prohibited the appellants from taking strike
action, be it in the form of collectively refusing to resume work pursuant to
the cessation of the lockout or going on a strike proper at a later date. In
the B.C. Motor Vehicle Act Reference, Lamer J. viewed s. 7 as protecting
interests “that are properly and have been traditionally within the domain
of the judiciary… The common thread that runs throughout s. 7 and ss. 8-14 is
the involvement of the judicial branch as guardian of the justice system”.
The right to strike and the right of Parliament to curtail it in the public
interest in appropriate circumstances have never been traditionally within the
domain of the judiciary. Here, the back-to-work legislation involved important
social, political and economical considerations with national and international
ramifications which were never intended to be discussed under the right to
individual liberty found in s. 7. The appellants are trying to do under s. 7,
i.e., under the cover of the right to liberty, what they cannot do under s. 2(d),
i.e., under freedom of association: I.L.W.U. v. The Queen, [1992] 3 F.C.
758, (F.C.A.); appeal dismissed, [1994] 1 S.C.R. 150.

[5]
“Security of the Person”

This Court has held
on a number of occasions that the right to security of the person protects “both
the physical and psychological integrity of the individual”. Although these
cases considered the right to security of the person in a criminal law context,
I believe that the protection accorded by this right extends beyond the
criminal law and can be engaged in child protection proceedings. It is clear
that the right to security of the person does not protect the individual from
the ordinary stresses and anxieties that a person of reasonable sensibility
would suffer as a result of government action. For a restriction of security of
the person to be made out, the impugned state action must have a serious and
profound effect on a person’s psychological integrity. The effects of the state
interference must be assessed objectively, with a view to their impact on the
psychological integrity of a person of reasonable sensibility. This need not
rise to the level of nervous shock or psychiatric illness, but must be greater
than ordinary stress or anxiety. I have little doubt that state removal of a
child from parental custody pursuant to the state’s parens patriae
jurisdiction constitutes a serious interference with the psychological
integrity of the parent. Not every state action which interferes with the
parent-child relationship will restrict a parent’s right to security of the
person. For example, a parent’s security of the person is not restricted when,
without more, his or her child is sentenced to jail or conscripted into the
army. Nor is it restricted when the child is negligently shot and killed by a
police officer. While the parent may suffer significant stress and anxiety as a
result of the interference with the relationship occasioned by these actions,
the quality of the “injury” to the parent is distinguishable from that in the
present case. In the aforementioned examples, the state is making no pronouncement
as to the parent’s fitness or parental status, nor is it usurping the parental
role or prying into the intimacies of the relationship. In short, the state is
not directly interfering with the psychological integrity of the parent qua
parent. In both Reference re ss. 193 and 195.1(c) of the Criminal Code
and B.(R.), supra, I held that the restrictions on liberty and security
of the person that s. 7 is concerned with are those that occur as a result of
an individual’s interaction with the justice system and its administration. A
child custody application is an example of state action which directly engages
the justice system and its administration. The Family Services Act
provides that a judicial hearing must be held in order to determine whether a
parent should be relieved of custody of his or her child: New Brunswick
(Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46; Winnipeg
Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC
48.

Not all state
interference with an individual’s psychological integrity will engage s. 7.
Where the psychological integrity of a person is at issue, security of the
person is restricted to “serious state-imposed psychological stress”
(Dickson C.J. in Morgentaler). The words “serious state-imposed
psychological stress” delineate two requirements that must be met in order
for security of the person to be triggered. First, the psychological harm must
be state imposed, meaning that the harm must result from the actions of
the state. Second the psychological prejudice must be serious. Not all
forms of psychological prejudice caused by government will lead to automatic s.
7 violations. Stress, anxiety and stigma may arise from any criminal trial,
human rights allegations, or ever a civil action, regardless of whether the
trial or process occurs within a reasonable time. We are therefore not
concerned in this case with all such prejudice but only that impairment which
can be said to flow from the delay in the human rights process. It would be
inappropriate to hold government accountable for harms that are brought about
by third parties who are not in any sense acting as agents of the state. It is
only in exceptional cases where the state interferes in profoundly intimate and
personal choices of an individual that state-caused delay in human rights
proceedings could trigger the s. 7 security of the person interest. While these
fundamental personal choices would include the right to make decisions
concerning one’s body free from state interference or the prospect of losing
guardianship of one’s children, they would not easily include the type of
stress, anxiety and stigma that results from administrative or civil
proceedings. The majority of the Court of Appeal in the case at bar erred in
transplanting s. 11(b) principles set out in the criminal law context to human
rights proceedings under s. 7. The effect of the Court of Appeal’s decision was
to extract an element of s. 11(b) – the element of stigma, which may be
sufficient in the context of criminal proceedings and s. 11(b), to create a
deprivation of the security of the person – and apply it to a process that
differs with respect to objectives, consequences and procedures. As this Court
has recently confirmed in Mills (1999), Charter rights must be
interpreted and defined in a contextual manner, because they often inform, and
are informed by, other similarly deserving rights and values at play in
particular circumstances. The Court of Appeal has failed to examine the rights
protected by s. 7 in the context of this case. I do not doubt that parties in
human rights sex discrimination proceedings experience some level of stress and
disruption of their lives as a consequence of allegations of complainants. Even
accepting that the stress and anxiety experienced by the respondent in this
case was linked to delays in the proceedings, I cannot conclude that the scope
of his security of the person protected by s. 7 of the Charter covers
such emotional effects nor that they can be equated with the kind of stigma contemplated
in Mills (1986), of an overlong and vexatious pending criminal trial or
in G.(J.), where the state sought to remove a child from his or her parents. If
the purpose of the impugned proceedings is to provide a vehicle or acts as an
arbiter for redressing private rights, some amount of stress and stigma
attached to the proceedings must be accepted. My conclusion that the respondent
is unable to cross the first threshold of the s. 7 Charter analysis in
the circumstances of this case should not be construed as a holding that
state-caused delays in human rights proceedings can never trigger an
individual’s s. 7 rights. It may well be that s. 7 rights can be engaged by a
human rights process in a particular case. Blencoe v. B.C. (Human Rights
Commission), [2000] 2 S.C.R. 307, 2000 SCC 44.

Prosecution for an
absolute liability offence under the Highway Traffic Act, for which the penalty
may be a significant fine, does not engage the kind of exceptional
state-induced psychological stress that would trigger the security of the
person guarantee: R. v. 1260448 Ont. Inc., (2003), 180
C.C.C.(3d) 254 (Ont. C.A.).

The appellant
submits that the surreptitious recording of his voice by the police for voice
identification purposes violated his right to security of the person. The
taking of the voice sample was insubstantial, of very short duration and left
no lasting impression. There was no penetration of the appellant’s body and no
substance removed from it. In R. v. Parsons this court held that the
surreptitious videotaping of an accused in police custody for purposes of
preparing a photo identification line-up did not constitute a s. 7 violation.
We see no meaningful distinction between that case and the one at hand: R.
v. Pelland, (1997), 99 O.A.C. 62 (Ont. C.A.).

In the present case,
the provincial Environmental Quality Act imposes a minimum fine upon
conviction regardless of capacity to pay. Immediate imprisonment is a real
possibility under s. 237 of the Code of
Civil Procedure if the sentencing judge is satisfied that the defendant
will abscond, and s. 347 contemplates imprisonment in default of payment if the
justice believes that no other method provided in the Code will be effective in
recovering the fine. The combined effect of these provisions appears to impair
the right to liberty of the defendants in a meaningful rather than an
insignificant way, and they may therefore invoke s. 7 of the Charter in order
to challenge the constitutional validity of the law under which they are
charged: Québec v. Enterprises M.G. de Guy Ltée, (1996), 107 C.C.C. (3d)
1 (Qué. C.A.).

There is no question
that personal autonomy, at least with respect to the right to make choices
concerning one’s own body, control over one’s physical and psychological
integrity, and basic human dignity are encompassed within security of the
person, at least to the extent of freedom from criminal prohibitions which
interfere with these. The effect of the prohibition in s. 241(b) of the Criminal
Code is to prevent the appellant from having assistance to commit suicide
when she is no longer able to do so on her own. That there is a right to choose
how one’s body will be dealt with, even in the context of beneficial medical
treatment, has long been recognized by the common law. To impose medical
treatment on one who refuses it constitutes battery, and our common law has
recognized the right to demand that medical treatment which would extend life
be withheld or withdrawn. These considerations lead to the conclusion that the
prohibition in s. 241(b) deprives the appellant of autonomy over her person and
causes her physical pain and psychological stress is a manner which impinges on
the security of the person: Rodriguez v. British Columbia (Attorney General),
[1993] 3 S.C.R. 519.

Although the
question of economic rights fundamental to survival is an open one in the
Supreme Court of Canada, it has been considered by courts below that level.
Those courts have generally held that there is no right under s. 7 to social
assistance, nor to a minimum standard of living. In a number of the decisions
denying violation of s. 7 the courts have approved statements made by Professor
Hogg in Constitutional Law of Canada. There, Professor Hogg considered
the argument that “security of the person” in s. 7 included the
economic capacity to satisfy basic human needs. He considered the possible role
of the courts in dealing with such an argument and made the following
statement: “The suggested role also involves a massive expansion of
judicial review, since it would bring under judicial scrutiny all of the
elements of the modern welfare state, including the regulation of trades and
professions, the adequacy of labour standards and bankruptcy laws and, of
course, the level of public expenditures on social programs. As Oliver Wendell
Holmes would have pointed out, these are the issues upon which elections are
won and lost; the judges need a clear mandate to enter that arena, and s. 7
does not provide that clear mandate”: Masse et al. v. Ontario (Ministry
of Community and Social Services), (1996), 134 D.L.R. (4th) 20 (Ont. Div.
Ct.); leave to appeal refused (Ont. C.A., April 30, 1996); leave to appeal
refused (S.C.C., December 5, 1996).

A commission of
inquiry appointed by order-in-council is a recommendatory, not an adjudicative,
body. It will make no determinations as to guilt or innocence or civil or
criminal liability. Nor will its report necessarily lead to any subsequent
proceedings against anyone. That being so, it cannot be said that the inquiry
will deprive any person of liberty or security of the person: Robinson et
al. v. The Queen et al., (1986), 28 C.C.C. (3d) 489 (B.C.S.C.); appeal
dismissed, [1987] 3 W.W.R. 362 (B.C.C.A.); leave to appeal refused (S.C.C.,
April 9, 1987); Re First Investors Corporation Ltd. (1988), 58 Alta. L.R. 38 (Alta. Q.B.); appeal
dismissed, (1988), 52 D.L.R. (4th) 168 (Alta. C.A.).

The appellant here submitted
that security of the person ought to encompass the right to pursue one’s
occupation or profession and not to be deprived thereof except in accordance
with fundamental justice. In order to give s.7 that interpretation, security of
the person must be interpreted to mean the economic capacity to satisfy basic
human needs, that is, to earn a living. Nowhere in s.7 is there reference to
property rights and that omission is significant: Bassett v. Government of
Canada et al., (1987), 35 D.L.R. (4th) 537 (Sask. C.A.).

A finding of
discrimination against an employer as the basis for a remedial order under the Saskatchewan
Human Rights Code does not impinge upon the employer’s right to “life,
liberty and security of the person”. To construe a compensatory order
based upon a finding of discrimination designed to relieve a victim of the
effects of discrimination as seriously hurting the body or mind of the
discriminator would be to stretch the boundaries of the concept of “life,
liberty and security of the person” well beyond the breaking point: Pasqua
Hospital et al. v. Harmatiuk, (1987), 42 D.L.R. (4th) 134 (Sask. C.A.).

To require a
penitentiary inmate to provide a specimen of urine for purposes of testing for
trace elements of intoxicants is an interference with bodily integrity and
security of the person. Urinalysis may reveal health or other conditions beyond
the indications sought for traces of unauthorized intoxicants. In many cases
requiring a specimen for testing aside from health reasons might lead to a
measure of psychological stress, particularly where, as here, the procedure for
collecting the sample involves direct observation by another. The requirement
deprives the inmate concerned of security of his or her person. To require this
or risk punishment for failure to comply with an order, is also an interference
with the liberty of the person: Jackson v. Disciplinary Tribunal, [1990]
3 F.C. 55 (F.C.T.D.).

The right to
determine what shall, or shall not, be done with one’s own body, and to be free
from non-consensual medical treatment, is a right deeply rooted in our common
law. This right underlies the doctrine of informed consent. With very limited
exceptions, every person’s body is considered inviolate, and, accordingly,
every competent adult has the right to be free from unwanted medical treatment.
The fact that serious risks or consequences may result from a refusal of
medical treatment does not vitiate the right of medical self-determination. It
was contended here that the Ontario Mental Health Act, which authorizes
a review board to override an involuntary patient’s competent refusal to take
anti-psychotic drugs, as expressed by the patient through his or her
substitute, contravenes s. 7. It is manifest that the impugned provisions
operate so as to deprive the appellants of their right to security of the
person. The common law right to bodily integrity and personal autonomy is so
entrenched in the traditions of our law as to be ranked as fundamental and
deserving of the highest order of protection. Few medical procedures can be
more intrusive than the forcible injection of powerful mind altering drugs
which are often accompanied by severe and sometimes irreversible adverse side
effects. To deprive involuntary patients of any right to make competent decisions
with respect to such treatment when they become incompetent clearly infringes
their right to security of the person. A legislative scheme that permits the
competent wishes of a psychiatric patient to be overridden, and which allows a
patient’s right to personal autonomy and self-determination to be defeated,
without affording a hearing as to why the substitute consent-giver’s decision
to refuse consent based on the patient’s wishes should not be honoured violates
the basic tenets of our legal system: Fleming v. Reid, (1991), 82 D.L.R.
(4th) 298 (Ont. C.A.).

This Court has great
difficulty with a proposition that would bring a government policy decision
concerning the use of nuclear power within the scope of s. 7. The government
decided to develop atomic energy for peaceful purposes, one being to generate
electricity by the use of nuclear power. The government was well aware of the
inherent risks but, in its wisdom, proceeded with fostering the development of
nuclear reactors by enacting the Nuclear Liability Act to deal with the
economic consequences of the known risks to the public. Those policy decisions
cannot invoke s. 7 security. Further, the plaintiffs have failed to prove that
there is a greater risk to the public of producing electricity by nuclear power
than by alternate methods. It is not sufficient for the plaintiffs to allege
that there are greater possible consequences to the security of the person
because of the Act. As Dickson J. stated in Operation Dismantle:
“Section 7 of the Charter cannot reasonably be read as imposing a duty on
the government to refrain from those acts which might lead to
consequences that deprive or threaten to deprive individuals of their life and
security of the person. A duty of the federal cabinet cannot arise on the basis
of speculation and hypothesis about possible effects of government
action”: Energy Probe v. A.G. Canada, (1994), 17 O.R. (3d) 717
(Ont. Gen. Div.).

[6]
“Principles of Fundamental Justice”

[6.A]
Nature and Sources of the “Principles”

Jurisprudence on s.
7 has established that a “principle of fundamental justice” must
fulfill three criteria. First, it must be a legal principle. This serves two
purposes. First, it “provides meaningful content for the s. 7
guarantee”; second, it avoids the “adjudication of policy matters”.
Second, there must be sufficient consensus that the alleged principle is
“vital or fundamental to our societal notion of justice”. The
principles of fundamental justice are the shared assumptions upon which our
system of justice is grounded. They find their meaning in the cases and
traditions that have long detailed the basic norms for how the state deals with
its citizens. Society views them as essential to the administration of justice.
Third, the alleged principle must be capable of being identified with precision
and applied to situations in a manner that yields predictable results. Examples
of principles of fundamental justice that meet all three requirements include
the need for a guilty mind and for reasonably clear laws: Canadian
Foundation for Children, Youth and the Law v. Canada (Attorney General),
[2004] 1 S.C.R. 76, 2004 SCC 4; Application under s. 83.28 of the Criminal Code
(Re), 2004 SCC 42.

Discerning the
principles of fundamental justice with which deprivation of life, liberty or
security of the person must accord, in order to withstand constitutional
scrutiny, is not an easy task. A mere common law rule does not suffice to
constitute a principle of fundamental justice, rather, as the term implies,
principles upon which there is some consensus that they are vital or
fundamental to our societal notion of justice are required. Principles of
fundamental justice must not, however, be so broad as to be no more than vague
generalizations about what our society considers to be ethical or moral. They
must be capable of being identified with some precision and applied to
situations in a manner which yields an understandable result. They must also be
legal principles. To discern the principles of fundamental justice governing a
particular case, it is helpful to review the common law and the legislative
history of the offence in question and, in particular, the rationale behind the
practice itself (here, the continued criminalization of assisted suicide) and
the principles which underlie it. It is also appropriate to consider the state
interest. Fundamental justice requires that a fair balance be struck between
the interests of the state and those of the individual. The respect for human
dignity, while one of the underlying principles upon which our society is
based, is not a principle of fundamental justice within the meaning of s. 7.
Where the deprivation of the right in question does little or nothing to
enhance the state’s interest (whatever it may be), a breach of fundamental
justice will be made out, as the individual’s rights will have been deprived
for no valid purpose. It follows that before one can determine that a statutory
provision is contrary to fundamental justice, the relationship between the
provision and the state interest must be considered. One cannot conclude that a
particular limit is arbitrary because it bears no relation to, or is
inconsistent with, the objective that lies behind the legislation without
considering the state interest and the societal concerns which it reflects. In
the present case, given the concerns about abuse that have been expressed and
the great difficulty in creating appropriate safeguards to prevent these, it
can not be said that the blanket prohibition on assisted suicide is arbitrary
or unfair, or that it is not reflective of fundamental values at play in our
society: Rodriguez v. British Columbia (Attorney General), [1993] 3
S.C.R. 519; R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24.

The principles of
fundamental justice are not a protected interest, but rather a qualifier of the
right not to be deprived of life, liberty and security of the person. As a
qualifier, the phrase serves to establish the parameters of the interests but
it cannot be interpreted so narrowly as to frustrate or stultify them. It would
be wrong to interpret fundamental justice as being synonymous with natural
justice. To do so would strip the protected interests of much, if not most, of
their content and leave the right to life, liberty and security of the person
in a sorely emaciated state. Sections 8 to 14 of the Charter 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. They
are designed to protect, in a specific manner and setting, the right to life,
liberty and security of the person. It would be incongruous to interpret s.7
more narrowly than the rights in ss. 8 to 14. Whether any principle may be said
to be a principle of fundamental justice within the meaning of s.7 will rest
upon an analysis of the nature, sources, rationale and essential role of that
principle within the judicial process and in our legal system, as it evolves.
Consequently, those words cannot be given any exhaustive content or simple
enumerative definition, but will take on concrete meaning as the courts address
alleged violations of s.7. For the purposes of the present case, a law that has
the potential to convict a person who has not really done anything wrong offends
the principles of fundamental justice and, if imprisonment is available as a
penalty, such a law then violates a person’s right to liberty under s.7, i.e.,
absolute liability and imprisonment cannot be combined: Reference Re S.
94(2) Motor Vehicle Act, [1985] 2 S.C.R. 486; Vaillancourt v. R.,
[1987] 2 S.C.R. 636.

In Re B.C. Motor
Vehicle Act, Lamer J. indicated that the principles of fundamental justice
“are to be found in the basic tenets of our legal system”. To determine the
content of these “basic tenets” in any given circumstance, we must have regard
to “the applicable principles and policies that have animated legislative and
judicial practice in the field”. It is important to remember that the
legislative and judicial “principles and policies” that have so far defined the
protections granted against self-incrimination have, as is true in other areas,
sought to achieve a contextual balance between the interests of the individual
and those of society. This balancing is crucial in determining whether or not a
particular law, or in the present case state action, is inconsistent with the
principles of fundamental justice. This is all the more apparent in the instant
case, where the appellant challenges a regulatory procedure — the use
of hail reports and fishing logs — designed (and employed) in the public
interest. In evaluating the constitutionality of this procedure, we must be
careful to keep the interests of both the individual and society in mind. The
balance thus far achieved is reflected in the common law. Though it is not, of
course, determinative of rights guaranteed under s. 7, the common law does give
us a valuable indication of what is just and fair in the circumstances: R.
v. Fitzpatrick, [1995] 4 S.C.R. 1554.

We do not think that
Cunnigham, Thomson Newspapers and Rodriguez should be taken as suggesting that
courts engage in a free-standing inquiry under s. 7 into whether a particular
legislative measure “strikes the right balance” between individual
and societal interests in general, or that achieving the right balance is
itself an overarching principle of fundamental justice. Such a general
undertaking to balance individual and societal interests, independent of any
identified principle of fundamental justice, would entirely collapse the s.
1 inquiry into s. 7. The balancing of individual and societal interests within
s. 7 is only relevant when elucidating a particular principle of fundamental
justice. As Sopinka J. explained in Rodriguez, “in arriving at
these principles [of fundamental justice], a balancing of the interest of
the state and the individual is required”. Once the principle of
fundamental justice has been elucidated, however, it is not within the ambit of
s. 7 to bring into account such “societal interests” as health care
costs. For a rule or principle to constitute a principle of fundamental justice
for the purposes of s. 7, it must be a legal principle about which there is
significant societal consensus that it is fundamental to the way in which the
legal system ought fairly to operate, and it must be identified with sufficient
precision to yield a manageable standard against which to measure deprivations
of life, liberty or security of the person. Contrary to the appellants’
assertion, we do not think there is a consensus that the harm principle is the
sole justification for criminal prohibition. No doubt, the presence of
harm to others may justify legislative action under the criminal law power.
However, we do not think that the absence of proven harm creates the
unqualified barrier to legislative action that the appellants suggest. On the
contrary, the state may sometimes be justified in criminalizing conduct that is
either not harmful (in the sense contemplated by the harm principle), or that
causes harm only to the accused. A criminal law that is shown to be arbitrary
or irrational will infringe s. 7. Our colleagues LeBel and Deschamps JJ.
consider the marihuana prohibition to be disproportionate to the societal
problems at issue, and, thus arbitrary. This, we think, puts the threshold of
judicial intervention too low. Marihuana is a psychoactive drug “whose use
causes alteration of mental function” according to the trial judge. This
alteration creates a potential harm to others when the user engages in “driving,
flying and other activities involving complex machinery”. Chronic users
may suffer “serious” health problems. Vulnerable groups are at
particular risk. These findings of fact disclose a sufficient state interest to
support Parliament’s intervention should Parliament decide that it is wise to
continue to do so, subject to a constitutional standard of gross
disproportionality. If Parliament is otherwise acting within its jurisdiction
by enacting a prohibition on the use of marihuana, it does not lose that
jurisdiction just because there are other substances whose health and safety
effects could arguably justify similar legislative treatment. Parliament may,
as a matter of constitutional law, determine what is not criminal as
well as what is. The choice to use the criminal law in a particular context
does not require its use in any other. Parliament’s decision to move in one
area of public health and safety without at the same time moving in other areas
is not, on that account alone, arbitrary or irrational. R. v.
Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571, 2003 SCC 74.

As a majority of
this Court made clear in the case of Malmo-Levine, supra, the “balancing
of interests” referred to by McLachlin J. in Cunningham is to be taken
into consideration by courts only when they are deriving or construing the
content and scope of the principles of fundamental justice themselves. It is
not in and of itself a freestanding principle of fundamental justice which must
be respected if a deprivation of life, liberty and security of the person is to
be upheld: R. v. Demers, 2004 SCC 46.

The content of the
“principles of fundamental justice” was initially explored by Lamer
J. in Re B.C. Motor Vehicle Act: “… the principles of fundamental
justice are to be found in the basic tenets of our legal system. They do
not lie in the realm of general public policy but in the inherent domain of the
judiciary as guardian of the justice system.” Lamer J. also recognized that
international law and opinion is of use to the courts in elucidating the scope
of fundamental justice. Dickson C.J. made a similar observation in Slaight
Communications. Although this particular appeal arises in the context of
Canada’s bilateral extradition arrangements with the United States, it is
properly considered in the broader context of international relations
generally, including Canada’s multilateral efforts to bring about change in
extradition arrangements where fugitives may face the death penalty, and
Canada’s advocacy at the international level of the abolition of the death
penalty itself: United States v. Burns, [2001] 1 S.C.R. 283, 2001
SCC 7.

To determine whether
the dangerous offender provisions of Part XXI of the Criminal Code violate the principles of
fundamental justice by the deprivation of liberty suffered by the offender, it
is necessary to examine Part XXI in light of the basic principles of penal
policy that have animated legislative and judicial practice in Canada and other
common law jurisdictions. It is clear that the indeterminate detention is
intended to serve both punitive and preventive purposes. Both are legitimate
aims of the criminal sanction. However, it is clear that the present Charter
inquiry is concerned also, if not primarily, with the effects of the
legislation. This requires investigating the “treatment meted out”,
i.e. what is actually done to the offender and how that is accomplished.
Whether this treatment violates constitutional precepts seems to be an issue
more aptly discussed under ss. 9 and 12, because these provisions focus on
specific manifestations of the principles of fundamental justice: Lyons v.
R., [1987] 2 S.C.R. 309.

The accused here
contended that the right to equality before the law is a principle of
fundamental justice. To find constitutional protection for the right to equality
before the law under s. 7 here would be contrary to the clear expression of
legislative intention resulting from ss. 15 and 32(2) of the Charter that the
constitutional protection of this right was not to take effect until April 17,
1985. As this Court has observed, there may be some overlap between s. 7 and
other provisions of the Charter. It would be wrong, however, in view of the
clear expression of legislative intention, to give effect to such protection as
s. 7 might otherwise afford to the right to equality before the law in a case
to which s. 15 could not apply because it was not in force at the relevant
time: Cornell v. R., [1988] 1 S.C.R. 461.

The common law
permitted a number of intrusions on the dignity of an individual or persons in
custody in the interest of law enforcement which were more serious than
fingerprinting. While the common law is not determinative in assessing whether
a particular practice violates a principle of fundamental justice, it is
certainly one of the major repositories of the basic tenets of our legal system
referred to in Re B.C. Motor Vehicle Act, supra. The common law
experience reveals that the vast majority of judges who have had to consider
the matter have not found custodial fingerprinting fundamentally unfair. Indeed
they were prepared to accept the procedure as permissible at common law and as
being similar in principle to the authority to physically restrain a person in
custody, and to physically search that person. Legislative practice has been
similar. The fact that the Act gives the police a discretion whether or
not to take fingerprints does not offend principles of fundamental justice.
Discretion is an essential feature of the criminal justice system. A system
that attempted to eliminate discretion would be unworkably complex and rigid.
If it was established that a discretion was exercised for improper or arbitrary
motives, a remedy under s. 24 of the Charter would lie, but no allegation of
this kind has been made here: Beare v. R., [1988] 2 S.C.R. 387.

This Court has previously
indicated that prosecutorial discretion is consistent with Charter requirements
of fundamental justice. The same reasons underlie the necessity for permitting
a discretion to decide whether a Canadian should be prosecuted in Canada or
abroad. As this Court observed in Beare, supra, “if, in a
particular case, it was established that a discretion was exercised for
improper or arbitrary motives, a remedy under s. 24 of the Charter would
lie”: U.S.A. v. Cotroni, [1989] 1 S.C.R. 1469; R. v.
Power, [1994] 1 S.C.R. 601; U.S.A. v. Leon, [1996] 1 S.C.R. 888.

Initially, the
“basic tenets of our legal system” must be discovered by reference to
the legal rules relating to the right which our legal system has adopted. The
right to silence asserted here has been said to be “general and abstract,
concealing a bundle of more specific legal relationships. It is only by an
analysis of the surrounding legal rules that those more precise elements of the
right can be identified.” Thus rules such as the common law confessions
rule, the privilege against self-incrimination and the right to counsel may
assist in determining the scope of a detained person’s right to silence under
s. 7. At the same time, existing common law rules may not be conclusive. It
would be wrong to assume that the fundamental rights guaranteed by the Charter
are cast forever in the straitjacket of the law as it stood in 1982. For this
reason, a fundamental principle of justice may be broader and more general than
the particular rules which exemplify it. A second reason why a fundamental
principle of justice may be broader in scope than a particular legal rule, such
as the confessions rule, is that it must be capable of embracing more than one
rule and reconciling diverse but related principles. Thus, the right of a
detained person to silence should be philosophically compatible with related
rights, such as the right against self-incrimination at trial and the right to
counsel. The final reason why a principle of fundamental justice may be broader
than a particular rule exemplifying it lies in considerations relating to the
philosophy of the Charter and the purpose of the fundamental right in question
in that context. The Charter has fundamentally changed our legal landscape. A
legal rule relevant to a fundamental right may be too narrow to be reconciled
with the philosophy and approach of the Charter and the purpose of the Charter
guarantee: R. v. Hebert, [1990] 2 S.C.R. 151.

The Charter analysis
here, because the appeal concerns a challenge to a common law, judge-made rule,
involves somewhat different considerations than would apply to a challenge to a
legislative provision. It is not strictly necessary to go on to consider the
application of s. 1 after the existing common law rule has been found to limit
the s. 7 right. It would be appropriate to consider at this stage whether an
alternative common law rule could be fashioned which would not be contrary to
the principles of fundamental justice. If it is possible to reformulate a
common law rule so that it will not conflict with the principles of fundamental
justice, such a reformulation should be undertaken: R. v. Daviault,
[1994] 3 S.C.R. 63.

The appellant, a
Convention refugee who has exhausted his domestic remedies and is to be removed
from Canada, contends that the principles of fundamental justice include the
right to remain in Canada until his international law remedies have been
exhausted. He asserts that once Canada grants an individual right, as it did by
signing the International Covenant on Civil and Political Rights and Protocol,
it must ensure a fair process and an effective remedy, and since his removal
would render any remedy nugatory, it must be enjoined. Canada has never
incorporated either the Covenant or the Protocol into Canadian law by implementing
legislation. Absent such legislation, neither has any legal effect in Canada.
While Canada’s international human rights obligations may inform the content of
the principles of fundamental justice, the appellant is not merely asking for
an interpretation. Instead, he seeks to use s. 7 to enforce Canada’s
international commitments in a domestic court. This he cannot do: Ahani v.
Canada (Minister of Citizenship and Immigration), (2002), 208 D.L.R.(4th) 66,
91 C.R.R.(2d) 145 (Ont. C.A.); leave to appeal refused (S.C.C., May 16, 2002).

[6.B]
Substantive Application

As discussed in R.
v. Pearson, [1992] 3 S.C.R. 665, the particular requirements of the presumption
of innocence as a substantive principle of fundamental justice will vary
according to the context in which it comes to be applied. The principle does
not necessarily require anything in the nature of proof beyond reasonable
doubt, because the particular step in the process does not involve a
determination of guilt. In this case, the provisions of Part XX.1 of the Criminal Code permit the State, through a
court or a Review Board, to deprive an accused who has been found unfit to
stand trial of his or her liberty. The appellant argues that the State cannot
subject a permanently unfit accused to the criminal charges for an
indeterminate period with only the goal of ensuring public safety, based solely
on a prima facie case that he or she committed the offence charged. In our
view, the deprivation of the unfit accused’s liberty accords with the presumption
of innocence. The Review Board proceedings under ss. 672.54 and 672.81(1) do
not involve a determination of guilt or innocence. Nor do they presume that the
unfit accused is dangerous. Section 672.33 does not presume guilt, but rather
aims at preventing abuses of the regime under Part XX.1 Cr.C. by providing that
the accused is acquitted when the evidence presented to the court is
insufficient to put him or her on trial. Even though the disposition orders do
restrict the unfit person’s liberty, they do not aim to punish the accused. Nor
are they based on a presumption of guilt or innocence. The prima facie case
against the unfit accused is sufficient to keep him or her under Part XX.1
Cr.C. and is consistent with Pearson, supra: R. v. Demers, 2004 SCC 46.

While Parliament
retains the power to define the elements of a crime, the courts now have the
jurisdiction and, more important, the duty, when called upon to do so, to
review that definition to ensure that it is in accordance with the principles
of fundamental justice. In effect, this Court’s decision in Reference Re S.
94(2) Motor Vehicle Act, supra, acknowledges that, whenever the state
resorts to the restriction of liberty, such as imprisonment, to assist in the
enforcement of a law, there is, as a principle of fundamental justice, a
minimum mental state which is an essential element of the offence. It thus
elevated mens rea from a presumed element to a constitutionally required
element. That case did not decide what level of mens rea was
constitutionally required for each type of offence, but inferentially decided
that even for a mere provincial regulatory offence at least negligence was
required, in that at least a defence of due diligence must always be open to an
accused who risks imprisonment upon conviction. It may well be that, as a
general rule, the principles of fundamental justice require proof of a
subjective mens rea with respect to the prohibited act, in order to
avoid punishing the morally innocent. However, for the purposes of this case
only, this Court will assume that something less than subjective foresight of
the result may, sometimes, suffice for the imposition of criminal liability for
causing that result through intentional criminal conduct. Whatever the minimum mens
rea for the act or the result may be, there are, though very few in number,
certain crimes where, because of the special nature of the stigma attached to a
conviction therefor or the available penalties, the principles of fundamental
justice require a mens rea reflecting the particular nature of the
crime. Such is theft, where a conviction requires proof of some dishonesty.
Murder is another such offence. The punishment for murder is the most severe in
our society and the stigma that attaches to a conviction is similarly extreme.
Murder is distinguished from manslaughter only by the mental element with
respect to the death. It is thus clear that there must be some special mental
element with respect to the death before a culpable homicide can be treated as
a murder. The special mental element gives rise to the moral blameworthiness
which justifies the stigma and sentence attached to a murder conviction. For
the sole purpose of this appeal, this Court will go no further than say that it
is a principle of fundamental justice that, absent proof beyond a reasonable
doubt of at least objective foreseeability, there surely cannot be a murder
conviction: Vaillancourt v. R., [1987] 2 S.C.R. 636; Laviolette v. R.,
[1987] 2 S.C.R. 667.

A conviction for
murder carries with it the most severe stigma and punishment of any crime in
our society. The principles of fundamental justice require, because of the
special nature of the stigma attached to a conviction for murder, and the
available penalties, a mens rea reflecting the particular nature of that
crime. The effect of s. 213 of the Criminal Code is to violate the
principle that punishment must be proportionate to the moral blameworthiness of
the offender, or the fundamental principle of a morally based system of law
that those causing harm intentionally be punished more severely than those
causing harm unintentionally. The rationale underlying the principle that
subjective foresight of death is required before a person is labelled and
punished as a murderer is linked to the more general principle that criminal
liability for a particular result is not justified except where the actor
possesses a culpable mental state in respect of that result. The stigma and
punishment attaching to the most serious of crimes, murder, should be reserved
for those who choose to intentionally cause death or who choose to inflict
bodily harm that they know is likely to cause death. The essential role of
requiring subjective foresight of death in the context of murder is to maintain
a proportionality between the stigma and punishment attached to a murder
conviction and the moral blameworthiness of the offender. Accordingly, it is a
principle of fundamental justice that a conviction for murder cannot rest on
anything less than proof beyond a reasonable doubt of subjective foresight of
death. Since s. 213 of the Code expressly eliminates the requirement for
proof of subjective foresight, it infringes ss. 7 and 11(d) of the Charter: R.
v. Martineau, [1990] 2 S.C.R. 633.

This Court’s
decision in Vaillancourt, supra, cannot be construed as saying that, as
a general proposition, Parliament cannot ever enact provisions requiring
different levels of guilt for principal offenders and parties. It must be
remembered that within many offences there are varying degrees of guilt and it
remains the function of the sentencing process to adjust the punishment for
each individual offender accordingly. The argument that the principles of
fundamental justice prohibit the conviction of a party to an offence on the
basis of a lesser degree of mens rea than that required to convict the
principle could only be supported, if at all, in a situation where the sentence
for a particular offence is fixed. However, currently in Canada, the sentencing
scheme is flexible enough to accommodate the varying degrees of culpability
resulting from the operation of ss. 21 and 22 of the Criminal Code. That
said, however, there are a few offences with respect to which the operation of
the objective component of s. 21(2) will restrict the rights of an accused
under s. 7. If an offence is one of the few for which s. 7 requires a minimum
degree of mens rea, the decision in Vaillancourt does preclude
Parliament from providing for the conviction of a party to that offence on the
basis of a degree of mens rea below the constitutionally required
minimum. Therefore, the question whether a party to an offence had the
requisite mens rea to found a conviction pursuant to s. 21(2) must be
answered in two steps. Firstly, is there a minimum degree of mens rea
which is required as a principle of fundamental justice before one can be
convicted as a principle for this particular offence? If there is no such
constitutional requirement for the offence, the objective component of s. 21(2)
can operate without restricting the constitutional rights of the party to the
offence. Secondly, if the principles of fundamental justice do require a
certain minimum degree of mens rea in order to convict for this offence,
then that minimum degree of mens rea is constitutionally required to
convict a party to that offence as well. As stated in Vaillancourt, the
principles of fundamental justice require a minimum degree of mens rea
for only a very few offences. The criteria by which these offences can be
identified are, primarily, the stigma associated with a conviction and, as a
secondary consideration, the penalties available. It should be noted that, as a
basis for a constitutionally required minimum degree of mens rea, the
social stigma associated with a conviction is the most important consideration,
not the sentence. The sentencing range available to the judge is not conclusive
of the level of mens rea constitutionally required. Instead, the crucial
consideration is whether there is a continuing serious social stigma which will
be imposed on the accused upon conviction: R. v. Logan, [1990] 2 S.C.R.
731.

In this case, the
Supreme Court of Canada was unanimously of the view that s. 7 of the Charter is
not infringed by the creation of a strict liability offence, that is, one for
which the mens rea component is negligence (leaving a due diligence
defence available), even though the sanctions upon conviction might include
imprisonment. However, it is unclear whether a majority of the Court would
restrict this holding to the context of regulatory offences, or would more
generally recognize negligence as the constitutionally-required minimum mental
element for all offences, except those for which the special stigma attaching
to conviction is such that subjective mens rea is necessary in order to
establish the moral blameworthiness which justifies the stigma and the
sentence. In the particular circumstances of this case, all members of the
Court agreed that the constitutionally-required element of negligence was not
fulfilled by the statutory defence, in s. 37.3(2) of the Competition Act,
to the offence of false/misleading advertising. The additional requirement of
“timely retraction”, in paras. (c) and (d), meant that the statutory
defence was considerably more narrow than the common law defence of due
diligence and could result in the conviction of an accused who was not
negligent: R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154.

To be convicted of
unlawfully causing bodily harm under s. 269 of the Criminal Code, the
prosecution must first satisfy the mental element requirement of the underlying
offence. In interpreting the ambit of the underlying offences it is important
to recognize the abhorrence of the criminal law for offences of absolute
liability. While not all underlying offences will have a possibility of imprisonment
and despite the fact that s. 269 has a fault requirement in addition to that
supplied by the underlying offence, as a matter of statutory interpretation,
underlying offences of absolute liability are excluded from forming the basis
for a prosecution under s. 269. For the reasons given by this Court in R. v.
Sault Ste. Marie and Re B.C. Motor Vehicle Act, s. 269 should not be
interpreted so as to bootstrap underlying offences of absolute liability into
the criminal law. The mental element of s. 269 has two separate aspects. The
first aspect of the mental element is the requirement that an underlying
offence with a constitutionally sufficient mental element has been committed.
Additionally, s. 269 requires that the prosecution prove that the bodily harm
caused by the underlying unlawful act was objectively foreseeable. As this
Court has not indicated that fundamental justice requires fault based on a
subjective standard for all offences, the mental element required by s. 269
passes constitutional muster. It has neither the stigma nor criminal sanction
to require a more demanding mental element than it already has. The criminal
sanction is flexible and thus can be tailored to suit the circumstances of the
case. The stigma associated with conviction will generally reflect the degree
of opprobrium which the underlying offence attracts. The stigma attached to the
underlying offence will in turn influence the minimum mental requirement for
that offence. However, the appellant argues that s. 7 of the Charter requires
subjective foresight of all consequences which comprise part of the actus
reus of an offence. In R. v. Hess, [1990] 2 S.C.R. 906, the Court
concluded that a meaningful mental element was required in regard to a blameworthy
element of the actus reus. Provided that there is a sufficiently
blameworthy element in the actus reus to which a culpable mental state
is attached, there is no additional requirement that any other element of the actus
reus be linked to this mental state or a further culpable mental state.
Provided that the actor is already engaged in a culpable activity, foresight of
consequences is not required in order to hold that actor responsible for the
results of his or her unlawful activity. Lamer C.J. stated in Martineau
that “[i]f Parliament wishes to deter persons from causing bodily harm
during certain offences, then it should punish persons for causing the bodily
harm”. That is exactly what s. 269 attempts to do. In this particular
provision the mental element requirement is composed of both the mental element
of the underlying unlawful act and the additional requirement of
objective foresight of bodily harm. There is, however, no constitutional
requirement that intention, either on an objective or a subjective basis,
extend to the consequences of unlawful acts in general. Conduct may
fortuitously result in more or less serious consequences depending on the
circumstances in which the consequences arise. The same act of assault may
injure one person but not another. The implicit rationale of the law in this
area is that it is acceptable to distinguish between criminal responsibility
for equally reprehensible acts on the basis of the harm that is actually
caused. This is reflected in the creation of higher maximum penalties for offences
with more serious consequences. One is not morally innocent simply because a
particular consequence of an unlawful act was unforeseen by that actor. In
punishing for unforeseen consequences the law is not punishing the morally
innocent but those who cause injury through avoidable unlawful action. Neither
basic principles of criminal law, nor the dictates of fundamental justice
require, by necessity, intention in relation to the consequences of an
otherwise blameworthy act: R. v. DeSousa, [1992] 2 S.C.R. 944.

There is no doubt
that a sentencing scheme must exhibit a proportionality to the seriousness of
the offence, that is, there must be a gradation of punishments according to the
malignity of the offences. However, a sentencing scheme also must take into
account other factors that are of significance for the societal interest in
punishing wrongdoers, such as the protection of the public. The combination of
ss. 214(5)(e) and 669 of the Criminal Code clearly demonstrates a
proportionality between the moral turpitude of the offender and the malignity
of the offence, and moreover it is in accord with the other objectives of a
system of sentencing identified by this Court in Lyons, supra. The
decision of Parliament to elevate murders done while the offender commits
forcible confinement to the level of first degree murder is consonant with the
principle of proportionality between the blameworthiness of the offender and
the punishment. Further, it is consistent with the individualization of
sentencing especially since only those who have killed with subjective
foresight of death while also committing the offence of forcible confinement
are subjected to that punishment. There is, therefore, no principle of
fundamental justice that has been violated by the combination of the two
challenged provisions: R. v. Luxton, [1990] 2 S.C.R. 711.

Section 146(1) of
the Criminal Code makes it an indictable offence punishable by a maximum
of life imprisonment for a man to have sexual intercourse with a female under
the age of fourteen who is not his wife. The provision expressly removes the
defence that the accused bona fide believed that the female was fourteen
years of age or older. An accused may not resort to the defence of mistake of
fact. Section 146(1) infringes s. 7 of the Charter because s. 7 prohibits the
existence of offences that are punishable by imprisonment and that do not allow
the accused as a minimum a due diligence defence: R. v. Hess, [1990] 2
S.C.R. 906.

Driving can only be
undertaken by those who have a licence. The effect of the licensing requirement
is to demonstrate that those who drive are mentally and physically capable of
doing so. Moreover, it serves to confirm that those who drive are familiar with
the standards of care which must be maintained by all drivers. Licensed drivers
choose to engage in the regulated activity of driving. They place themselves in
a position of responsibility to other members of the public who use the roads.
As a result, it is unnecessary for a court to establish that the particular
accused intended or was aware of the consequences of his or her driving. The
minimum standard of physical and mental well-being coupled with the basic
knowledge of the standard of care required of licensed drivers obviate that
requirement. As a general rule, a consideration of the personal factors, so
essential in determining subjective intent, is simply not necessary in light of
the fixed standards that must be met by licensed drivers. Secondly, the nature
of driving itself is often so routine, so automatic that it is almost
impossible to determine a particular state of mind of a driver at any given
moment. It would be a denial of common sense for a driver, whose conduct was
objectively dangerous, to be acquitted on the ground that he was not thinking of
his manner of driving at the time of the accident. Thirdly, the wording of s.
249 of the Criminal Code, which refers to the operation of a motor
vehicle “in a manner that is dangerous to the public, having regard to all
the circumstances”, suggests that an objective standard is required. The
“manner of driving” can only be compared to a standard of reasonable
conduct. That standard can be readily judged and assessed by all who would be
members of juries. Thus, it is clear that the basis of liability for dangerous
driving is negligence. Fourthly, the statistics which demonstrate that all too
many tragic deaths and disabling injuries flow from the operation of motor
vehicles indicate the need to control the conduct of drivers. The need is
obvious and urgent. It is not only appropriate but essential in the control of
dangerous driving that an objective standard be applied. To insist on a
subjective mental element in connection with driving offences would be to deny
reality: R. v. Hundal, [1993] 1 S.C.R. 867.

By enacting s. 86(2)
of the Criminal Code, Parliament has seen fit to impose on all people
owning or using firearms a specific and rigorous duty of care. It is a basic
tenet of the principles of fundamental justice that the state not be permitted
to punish and deprive of liberty the morally innocent. Those who have the
capacity to live up to a standard of care and fail to do so, in circumstances
involving inherently dangerous activities, however, cannot be said to have done
nothing wrong. The Law Reform Commission of Canada emphasized this point:
“Certain kinds of activities involve the control of technology (cars,
explosives, firearms) with the inherent potential to do such serious damage to
life and limb that the law is justified in paying special attention to the
individuals in control. Failing to act in a way which indicates respect for the
inherent potential for harm of those technologies, after having voluntarily
assumed control of them (no one has to drive, use explosives, or keep
guns) is legitimately regarded as criminal.” In s. 86(2), Parliament has
addressed the threat posed by the use and storage of firearms by rendering
those whose conduct shows a marked departure from the standard of care of a
reasonably prudent person subject to criminal liability and possible
imprisonment. In Hundal, supra, this Court was unanimously of the view
that, in the appropriate context, negligence can be an acceptable basis of
liability which meets the fault requirement of s. 7 of the Charter: R. v.
Finlay, [1993] 3 S.C.R. 103.

The test for the mens
rea of unlawful act manslaughter is objective foreseeability of the risk of
bodily harm which is neither trivial nor transitory, in the context of a
dangerous act. Foreseeability of the risk of death is not required. This test does
not violate the principles of fundamental justice. The mens rea
requirement of foreseeability of harm is entirely appropriate to the stigma
associated with the offence of manslaughter. By the very act of calling the
killing manslaughter, the law indicates that the killing is less blameworthy
than murder. Nor does the sentence attached to manslaughter require elevation
of the degree of mens rea for the offence. Finally, the principle that
those causing harm intentionally must be punished more severely than those
causing harm unintentionally is strictly observed in the case of manslaughter.
The standard of mens rea required for manslaughter is thus appropriately
tailored to the seriousness of the offence. Risk of bodily harm is not
appreciably different from risk of death in the context of manslaughter: when
the risk of bodily harm is combined with the established rule that a wrongdoer
must take his victim as he finds him and the fact that death did in fact occur,
the distinction disappears. Further, while the rule that there must be symmetry
between the mens rea and the prohibited consequences of the offence is a
general rule of criminal law, it is not a principle of fundamental justice. The
objective test for criminal fault, which requires a “marked departure”
from the standard of the reasonable person, should not be extended to
incorporate a standard of care which varies with the background and
predisposition of each accused. Considerations of principle and policy dictate
the maintenance of a single, uniform legal standard of care for such offences,
subject to one exception: incapacity to appreciate the nature of the risk which
the activity in question entails. While the legal duty of the accused is not
particularized by his or her personal characteristics short of incapacity, it
is particularized in application by the nature of the activity and the
circumstances surrounding the accused’s failure to take the requisite care. The
question is what the reasonably prudent person would have done in all the circumstances.
In this case a reasonable person in all the circumstances would have foreseen
the risk of bodily harm. At the very least, a person administering a dangerous
drug like cocaine to another has a duty to inform himself as to the precise
risk the injection entails and to refrain from administering it unless
reasonably satisfied that there was no risk of harm. As that was not the case
here the conviction was properly entered: R. v. Creighton, [1993] 3
S.C.R. 3.

There is no
statutory or common law rule that supports the proposition that all defences
are applicable to all offences. In R. v. Bernard, [1988], 2 S.C.R. 833,
a majority of this Court agreed that the removal of a particular defence does
not violate the principles of fundamental justice in s. 7 of the Charter even
when that defence, drunkenness, arguably concerns the existence of mens rea.
This is particularly the case where the exculpatory defence would undermine the
entire purpose of an offence; for example, the defence of drunkenness cannot be
used as a defence to impaired driving because it constitutes the very nature of
the offence, R. v. Penno, [1990], 2 S.C.R. 865. Less controversially,
justifications and excuses are commonly restricted in their application, and
there is no suggestion that this violates the principles of fundamental
justice. For example, s. 14 of the Code prevents the operation of the
defence of consent in relation to offences of causing death. The whole
rationale for limits on individual responsibility for war crimes and crimes
against humanity is that there are higher responsibilities than simple
observance of national law. That a law of a country authorizes some sort of
clearly inhumane conduct cannot be allowed to be a defence: R. v. Finta,
[1994] 1 S.C.R. 701.

This Court has
recognized on a number of occasions that “moral blameworthiness” is
an essential component of criminal liability which is protected under s. 7 as a
“principle of fundamental justice”. The respondent in the case at bar
attempts to link the principles of “moral blameworthiness” and
“moral voluntariness” as a means of securing the constitutional
status of the defence of duress. To equate moral involuntariness with moral
innocence would be contrary to the Court’s conceptualization of duress as an
excuse. Morally involuntary conduct is not always inherently blameless. Once
the elements of the offence have been established, the accused can no longer be
considered blameless. However, although duress does not negate ordinarily actus
reus per se (just as it does not ordinarily negate mens rea), the
principle of voluntariness, unlike that of “moral blamelessness”, can
remain relevant in the context of s. 7 even after the basic elements of the
offence have been established. Punishing a person whose actions are involuntary
in the physical sense is unjust because it conflicts with the assumption in
criminal law that individuals are autonomous and freely choosing agents. It is
similarly unjust to penalize an individual who acted in a morally involuntary
fashion. This is so because his acts cannot realistically be attributed to him,
as his will was constrained by some external force. Although moral
involuntariness does not negate the actus reus or mens rea of an
offence, it is a principle which, similarly to physical involuntariness,
deserves protection under s. 7 of the Charter. It is a principle of fundamental
justice that only voluntary conduct — behaviour that is the product of a free
will and controlled body, unhindered by external constraints — should attract
the penalty and stigma of criminal liability. Depriving a person of liberty and
branding her with the stigma of criminal liability would infringe the
principles of fundamental justice if the accused did not have any realistic
choice. Section 17 of the Criminal Code limits the defence of duress to
a person who is compelled to commit an offence under threats of immediate death
or bodily harm from a person who is present when the offence is committed. A
threat will seldom meet the immediacy criterion if the threatener is not
physically present at or near the scene of the offence. The immediacy and
presence requirements, taken together, clearly preclude threats of future harm.
By the strictness of its conditions, s. 17 breaches s. 7 of the Charter because
it allows individuals who acted involuntarily to be declared criminally liable:
R. v. Ruzic, [2001] 1 S.C.R. 687, 2001 SCC 24.

The conclusion of
the majority in Leary v. R., [1978] 1 S.C.R. 29, establishes
that, even in a situation where the level of intoxication reached by the
accused is sufficient to raise a reasonable doubt as to his capacity to form
the minimal mental element required for a general intent offence for which he
is being tried, he still cannot be acquitted. In such a situation, self-induced
intoxication is substituted for the mental element of the crime. The result of
the decision in Leary, applied to this case, is that the intentional act
of the accused to voluntarily become intoxicated is substituted for the
intention to commit the sexual assault or for the recklessness of the accused
with regard to the assault. The strict application of the Leary rule
offends both ss. 7 and 11(d) of the Charter. In this case, the necessary mental
element can ordinarily be inferred from the proof that the assault was
committed by the accused. However, the substituted mens rea of an
intention to become drunk cannot establish the mens rea to commit the
assault. R. v. Whyte, [1988] 2 S.C.R. 3, dealt with the
substitution of proof of one element for proof of an essential element of an
offence and emphasized the strict limitations that must be imposed on such
substitutions: “Only if the existence of the substituted fact leads inexorably
to the conclusion that the essential element exists, with no other reasonable
possibilities, will the statutory presumption be constitutionally valid.” The
substituted mens rea set out in Leary does not meet this test.
The consumption of alcohol simply cannot lead inexorably to the conclusion that
the accused possessed the requisite mental element to commit a sexual assault,
or any other crime. Rather, the substituted mens rea rule has the effect
of eliminating the minimal mental element required for sexual assault.
Furthermore, mens rea for a crime is so well recognized that to
eliminate that mental element, an integral part of the crime, would be to
deprive an accused of fundamental justice: R. v. Vaillancourt, supra. In
that same case it was found that s. 11(d) would be infringed in those
situations where an accused could be convicted despite the existence of
reasonable doubt pertaining to one of the essential elements of the offence.
That would be the result if the Leary rule was to be strictly applied.
For example, an accused in an extreme state of intoxication akin to automatism
or mental illness would have to be found guilty although there was reasonable
doubt as to the voluntary nature of the act committed by the accused. This
would clearly infringe both ss. 7 and 11(d) of the Charter: R. v. Daviault,
[1994] 3 S.C.R. 63.

From the cases which
followed the passage of the Charter, the following can be derived: first,
generally speaking, an offence of absolute liability is not likely to offend s.
7 of the Charter unless a prison sanction is provided; secondly, an accused
charged with an absolute liability offence cannot avoid liability by
demonstrating that he exercised due diligence; thirdly, one of the prime bases
for distinguishing a strict liability offence from an absolute liability
offence is the availability of the defence of due diligence; fourthly, any
provincial regulatory offence providing for a term of imprisonment must make a
defence of due diligence available to the accused. In the present case, ss. 92
and 94 of the B.C. Motor Vehicle Act create an absolute liability
offence since they effectively eliminate the defence of due diligence.
Nevertheless, the absolute liability offence does not contravene the Charter.
This conclusion flows from the application of s. 4.1 and of s. 72(1) of the Offence
Act. These sections respectively indicate that, notwithstanding the
provisions of any other Act, no person is liable to imprisonment for an
absolute liability offence, and that the non-payment of a fine will not result
in imprisonment. Thus, an accused convicted under ss. 92 and 94 of the Motor
Vehicle Act faces no risk of imprisonment and there is, accordingly, no
violation of the right to life, liberty and security of the person under s. 7
of the Charter: R. v. Pontes, [1995] 3 S.C.R. 44.

The importance of a
contextual approach to the interpretation of s. 7 was emphasized by Cory J. in R.
v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154. Similarly in Kindler
v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, McLachlin J. adopted
a contextual approach which “takes into account the nature of the decision
to be made”. Thus in determining the scope of principles of fundamental
justice as they apply to this case, the Court must look to the principles and
policies underlying immigration law. The most fundamental principle of
immigration law is that non-citizens do not have an unqualified right to enter
or remain in the country. The distinction between citizens and non-citizens is
recognized in s. 6 of the Charter. Thus Parliament has the right to adopt an
immigration policy and to enact legislation prescribing the conditions under
which non-citizens will be permitted to enter and remain in Canada. It has been
done so in the Immigration Act. There is one element common to all persons
who fall within the class of permanent residents described in s. 27(1)(d)(ii)
of the Act. They have all deliberately violated an essential condition
under which they were permitted to remain in Canada. In such a situation, there
is no breach of fundamental justice in giving practical effect to the
termination of their right to remain in Canada. In the case of a permanent
resident, deportation is the only way in which to accomplish this. There is
nothing inherently unjust about a mandatory order: Canada (M.E.I.) v.
Chiarelli, [1992] 1 S.C.R. 711.

It was argued in
this case that s. 810.1 of the Criminal Code, which allows for the
imposition of a recognizance or a peace bond on persons who are likely to
commit any one of certain enumerated offences against a child under fourteen
years of age, imposes punishment and therefore must be considered on a par with
an offence. The argument proceeds as follows: if restrictions that amount to
punishments are imposed, they require proof of some underlying offence or fault.
There is no doubt that a person against whom a recognizance is imposed may feel
punished, just as a person who is ordered to pay compensatory damages in a
civil case or who is denied custody in a divorce action may feel punished.
However, the mere fact that those individuals feel punished or that a court
order restricts their liberty does not mean that they have committed any
offence, let alone an offence for which fault is constitutionally mandated.
This is because a restriction on liberty is not necessarily punishment. To
decide whether it is punishment, it is necessary to look not only at the impact
of the restriction but also its object. It is clear from the face of s. 810.1
that it is meant to prevent offences, not to punish. The misconception of the
applicant in making the submission that s. 810.1 does not contain a fault
requirement is to see the section only in the light of an offence-creating
model without considering that it may fit under a preventive community
protection model. The long enduring history of preventive judicial powers means
that they are part of the fabric of our law even in cases where no offence has
been proven. Their policy rationale is clear: where the reasonably certain
commission of an offence can be prevented, it may be in the interest of the
likely offender, his potential victim and of society to prevent the offence.
This is particularly true when the preventive measures employed are less
restrictive than the punishment that might flow from a conviction. Therefore,
there is nothing inherently contrary to fundamental justice in lesser
restrictions on liberty that are based on the potential for future offences,
provided they are carefully drafted. The breadth and severity of the preventive
restrictions must be in keeping with the triggering event that legitimizes the
restriction and with the standard of proof required in proving the risk posed
by the potential offender. In other words, a conviction for a serious offence
with proof of dangerousness beyond a reasonable doubt can justify even
indeterminate detention; proof on a balance of probabilities that an offence
will be committed may only permit restrictions on liberty short of detention.
The restrictions found in s. 810.1 would not prevent a person from living a
reasonably normal life. While they do infringe that person’s liberty interest,
they do so in a manner that is moderate and circumscribed: R. v. Budreo,
(1996), 104 C.C.C. (3d) 245 (Ont. Gen. Div.); appeal dismissed, (2000), 142
C.C.C.(3d) 225 (Ont. C.A.); leave to appeal refused (S.C.C., May 3, 2001).

[6.C]
Procedural Application

The principles of
fundamental justice are informed in part by the rules of natural justice and
the concept of procedural fairness. What is fair in a particular case will
depend on the context of the case. As stated by La Forest J. for the majority
in R. v. Lyons: “It is clear that, at a minimum, the requirements of
fundamental justice embrace the requirements of procedural fairness. … It is
also clear that the requirements of fundamental justice are not immutable;
rather, they vary according to the context in which they are invoked. Thus,
certain procedural protections might be constitutionally mandated in one
context but not in another.” In assessing whether a procedure accords with the
principles of fundamental justice, it may be necessary to balance the competing
interests of the state and individual. It is also necessary to consider the
statutory framework within which natural justice is to operate. The statutory
scheme may necessarily imply a limit on disclosure. As a general rule, a fair
hearing must include an opportunity for the parties to know the opposing
party’s case so that they may address evidence prejudicial to their case and
bring evidence to prove their position. However, the general rule does tolerate
certain exceptions. Some situations require a measure of secrecy, such as
wiretap and search warrant applications. In such circumstances, fairness is met
through other procedural safeguards such as subsequent disclosure, judicial
review and rights of appeal. In other cases, for instance where a privilege is
successfully asserted, the content of the disputed information may never be
revealed. The context of the case is therefore critical. The principles of
fundamental justice do not require that the applicant have the most favourable
proceedings. They do require that the proceedings be fair: Ruby v. Canada
(Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75.

In Re B.C. Motor
Vehicle Act, Lamer J. indicated that the principles of fundamental justice
“are to be found in the basic tenets of our legal system”. To determine the
content of these “basic tenets” in any given circumstance, we must have regard
to “the applicable principles and policies that have animated legislative and
judicial practice in the field”. It is important to remember that the legislative
and judicial “principles and policies” that have so far defined the protections
granted against self-incrimination have, as is true in other areas, sought to
achieve a contextual balance between the interests of the individual and those
of society. This balancing is crucial in determining whether or not a
particular law, or in the present case state action, is inconsistent with the
principles of fundamental justice. This is all the more apparent in the instant
case, where the appellant challenges a regulatory procedure — the use
of hail reports and fishing logs — designed (and employed) in the public
interest. In evaluating the constitutionality of this procedure, we must be
careful to keep the interests of both the individual and society in mind. The
balance thus far achieved is reflected in the common law. Though it is not, of
course, determinative of rights guaranteed under s. 7, the common law does give
us a valuable indication of what is just and fair in the circumstances: R.
v. Fitzpatrick, [1995] 4 S.C.R. 154; R. v. White, [1999] 2 S.C.R.
417.

The principles of
fundamental justice of which s. 7 speaks, though not identical to the duty of
fairness elucidated in Baker v. Canada, are the same principles
underlying that duty. What is required by the duty of fairness — and therefore
the principles of fundamental justice — is that the issue at hand be decided
in the context of the statute involved and the rights affected. More
specifically, deciding what procedural protections must be provided involves a
consideration of the following factors: (1) the nature of the decision made and
the procedures followed in making it, that is, “`the closeness of the
administrative process to the judicial process ‘”; (2) the role of the
particular decision within the statutory scheme; (3) the importance of the
decision to the individual affected; (4) the legitimate expectations of the
person challenging the decision where undertakings were made concerning the
procedure to be followed; and (5) the choice of procedure made by the agency
itself. This is not to say that other factors or considerations may not be
involved: Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3, 2002 SCC 1.

One of the
criticisms levied against the “judicial investigative hearing”
provision of s. 83.28 of the Criminal Code is that it co-opts the judiciary
into performing executive, investigatory functions in place of its usual
adjudicative role. Essentially, the assertion is that judges acting under s.
83.28 lack institutional independence or impartiality. We find that the
substance of such a criticism is not made out. Judges routinely play a role in
criminal investigation by way of measures such as the authorization of wire
taps, search warrants, and in applications for DNA warrants. The thrust of
these proceedings is their investigatory purpose, and the common underlying
thread is the role of the judge in ensuring that such information is gathered
in a proper manner. The place of the judiciary in such investigative contexts is
to act as a check against state excess. Under a broad and purposive
interpretation, s. 83.28 requires the judge to act “judicially”, in
accordance with constitutional norms, and the historic role of the judiciary in
criminal proceedings. It was also argued that the independence of Crown counsel
is compromised by the judicial investigative hearing process, becoming
impermissibly intertwined with the “police task” of investigation. We
reject this argument for two reasons. First, this Court in R. v. Regan declined
to set a bright line delineating the proper pre-charge role of the Crown. The
core content of Crown independence is the maintenance of objectivity throughout
the proceedings but the contextual framework may vary. Since the application of
Crown objectivity is inevitably highly contextual, it fails to meet the
criteria for recognition as a principle of fundamental justice under s. 7.
Second, one may assume that by bringing Crown counsel into the judicial
investigative hearing process, the legislature intended that the Crown would
conduct itself according to its proper role as an officer of the court and its
duty of impartiality in the public interest. This is consistent with our
interpretation of the intended role of judges in the proceeding. Where, however,
the Crown can be shown to have acted vexatiously or in bad faith, recourse may
be sought through the courts: Application under s. 83.28 of the Criminal Code
(Re), 2004 SCC 42.

The Charter analysis
here, because the appeal concerns a challenge to a common law, judge-made rule,
involves somewhat different considerations than would apply to a challenge to a
legislative provision. It is not strictly necessary to go on to consider the
application of s. 1 after the existing common law rule has been found to limit
the s. 7 right. It would be appropriate to consider at this stage whether an
alternative common law rule could be fashioned which would not be contrary to
the principles of fundamental justice. If it is possible to reformulate a
common law rule so that it will not conflict with the principles of fundamental
justice, such a reformulation should be undertaken: R. v. Swain, [1991]
1 S.C.R. 933.

In immigration
matters, s. 7 of the Charter does not mandate the provision of a compassionate
appeal from a decision which comports with principles of fundamental justice.
There has never been a universally available right of appeal from a deportation
order “on all the circumstances of the case”. Such an appeal has
historically been a purely discretionary matter. If any right of appeal from
the deportation order is necessary in order to comply with principles of
fundamental justice, a “true” appeal which enables the decision of
the first instance to be questioned on factual and legal grounds clearly satisfies
such a requirement. The respondent also alleged that the procedure followed by
the Security Intelligence Review Committee in this case violated his s. 7
rights. The scope of principles of fundamental justice will vary with the
context and the interests at stake. In assessing whether a procedure accords
with fundamental justice, it may be necessary to balance competing interests of
the state and the individual. The state has a considerable interest in
effectively conducting national security and criminal intelligence
investigations and in protecting police sources. The need for confidentiality
in national security cases was emphasized by Lord Denning in R. v. Secretary
of State, ex parte Hosenball, [1977] 3
All E.R. 452 (C.A.). Here, although the first day of the hearing was conducted in
camera, the respondent was provided with a summary of the evidence
presented. He was provided with various documents which gave him sufficient
information to know the substance of the allegations against him, and to be
able to respond. It is not necessary, in order to comply with fundamental
justice in this context, that the respondent also be given details of the
criminal intelligence investigation techniques or police sources used to
acquire that information: Canada (M.E.I.) v. Chiarelli, [1992] 1 S.C.R.
711.

Where a serious
issue of credibility is involved, fundamental justice requires that credibility
be determined on the basis of an oral hearing. Although the absence of an oral
hearing need not be inconsistent with fundamental justice in every case, the
concern with any procedural scheme is not with the absence of an oral hearing
in and of itself, but with the adequacy of the opportunity the scheme provides
for a person to state his case and know the case he has to meet: Singh et
al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.

The principles of
fundamental justice do not require that a refugee claimant be provided with
counsel at the pre-inquiry or pre-hearing stage of the refugee claim
determination process. While the right to counsel under s. 7 may apply in other
cases besides those which are encompassed by s. 10(b), for example in cases
involving the right to counsel at a hearing, it is clear that the secondary
examination of the appellant in this case at the port of entry is not analogous
to a hearing. Certainly, factual situations which are closer or analogous to
criminal proceedings will merit greater vigilance by the courts. However, in an
immigration examination for routine information-gathering purposes, the right
to counsel does not extend beyond those circumstances of arrest or detention
described in s. 10(b). The concern raised by Wilson J. in Singh, supra,
related to the adequacy of “the opportunity the procedural scheme provides
for a refugee claimant to state his case and know the case he has to
meet”. This concern is met in the present case by the requirement of a
subsequent oral hearing: Dehghani v. Canada (M.E.I.), [1993] 1 S.C.R.
1053.

At issue in this
case is whether the accused’s right to a fair trial was infringed by the
provisions of s. 486(2.1) of the Criminal Code, which allow the
testimony of a complainant in certain offences to be given behind a screen. The
principles of fundamental justice provided by s. 7 must reflect a diversity of
interests, including the rights of an accused, as well as the interests of
society. While the objective of the judicial process is the attainment of
truth, the principles of fundamental justice require that the criminal process
be a fair one. It must enable the trier of fact to get at the truth and
properly and fairly dispose of the case while at the same time providing the
accused with the opportunity to make a full defence. The main objective pursued
by the legislative enactment presently challenged is to better “get at the
truth”, by recognizing that a young child abuse victim’s evidence may, in
certain circumstances, be facilitated if the child is able to focus his or her
attention on giving testimony, rather than experiencing difficulties in facing
the accused. One must recall that rules of evidence are not cast in stone, nor
are they enacted in a vacuum. The recent trend in courts has been to remove
barriers to the truth-seeking process. Recent Supreme Court of Canada
decisions, by relaxing certain rules of evidence, such as the hearsay rules,
the use of videotaped evidence and out of court statements, have been a genuine
attempt to bring the relevant and probative evidence before the trier of fact
in order to foster the search for truth. Parliament, on the other hand, is free
to enact or amend legislation in order to reflect its policies and priorities,
taking into account societal values which it considers important at a given
time. It is clear that, in enacting s. 486(2.1), Parliament was well aware of the
plight of young victims of sexual abuse, as well as the need to curtail such
abuse. This is perfectly legitimate: R. v. Levogiannis, [1993] 4 S.C.R.
475.

Full s. 7 protection
in the pre-trial phase is essential to ensuring that an accused is not found culpable
as a result of non-voluntary statements made against himself. That logic cannot
easily be transferred to the post-trial phase. As this Court held in Lyons,
supra, ss. 7 to 14 protection has a more limited scope when applied to the
sentencing process. Once guilt has been established, our fundamental principles
of justice dictate a focus on the most appropriate sentence for the guilty
party. To assume that s. 7 post-trial protection should be identical to
pre-trial and trial protection ignores a rather critical intervening fact: The
accused has been found guilty of a crime. Having so found, the court places
greater emphasis on the interests of society in developing a sentence that is
appropriate to the guilty party. Evidence introduced at trial may be used in
this assessment. Evidence emerging from the psychiatric evaluation pursuant to
s. 537(1)(b) of the Criminal Code and relevant to assessing
dangerousness should be similarly treated: R. v. Jones, [1994] 2
S.C.R. 229.

The decision to
prosecute, whether by way of information sworn or direct indictment, involves
the administrative exercise of both discretion and judgment in the accusatorial
function of the executive branch of government, and the cases make it very
clear that if any jurisdiction exists to review the conduct of the
Attorney-General in the exercise of that function, it must be exercised only in
cases of “flagrant impropriety”. In the absence of clear and unmistakable
evidence of an abuse of the powers and privileges of that office, such decision
is not reviewable by the courts: R. v. Light, (1993), 78 C.C.C. (3d) 221
(B.C.C.A.); R. v. Reed (1995), 64
B.C.A.C. 156 (B.C.C.A.); Kostuch v. Alberta (Attorney General), (1995),
128 D.L.R. (4th) 440 (Alta. C.A.).

The right to
confront unavailable witnesses at trial is neither an established nor a basic
principle of fundamental justice. However, it is basic to our system of justice
that the accused have had a full opportunity to cross-examine the witness when
the previous testimony was taken if a transcript of such testimony is to be
introduced as evidence in a criminal trial for the purpose of convicting the
accused. This is in accord with the traditional view that it is the opportunity
to cross-examine and not the fact of cross-examination which is crucial if the
accused is to be treated fairly: R. v. Potvin, [1989] 1 S.C.R. 525.

It is a
contradiction in terms to assert that a person can suffer a deprivation of his
Charter rights when he is undergoing a trial which is conducted in accordance
with the principles of fundamental justice. The publicity attendant upon a
public trial must in almost every case cause prejudice to the accused, but the
law recognizes that prejudice by providing safeguards before the institution of
criminal proceedings. Once the accused “has put himself upon his
country”, the trial is to be public subject only to the order of the court
as to non-publication or otherwise provided in clearly delineated circumstances
under the Criminal Code. It was argued
here that s. 7 clothed the Provincial Court with jurisdiction to make
non-publication orders over and above those expressly authorized by the Code,
in order to protect the accused’s right to privacy. The position of the accused
must come down to an assertion that a public trial is a right of the accused
person and therefore, being for his protection, it is a right that he can
waive. The assertion that such a right can be waived is untenable. The public
has as much of an interest in the conduct of the trial as does the accused and
the accused is no more entitled to waive a public hearing than he is a fair
one: R. v. Dalzell, (1991), 63 C.C.C. (3d) 134 (Ont. C.A.).

In this case, the
challenged legislation simply appeared on the government’s legislative agenda
with little, or no, public notice and without any attempt to enter into any
meaningful consultation with those people who would be most affected by it.
Such, however, is the prerogative of government. There is no obligation on
government to consult the electorate before it introduces legislation. It may
exercise its powers as it sees fit, subject only to constitutional constraints.
In doing so, it takes the risk that if its legislation is unpopular the voters
will remove it at their first opportunity: East York (Borough) v. Ontario
(Attorney General), (1997), 34 O.R. (3d) 789 (Ont. Gen. Div.); appeal
dismissed, [1997] O.J. No. 4100 (Q.L.)(Ont.
C.A.).

[6.D]
Vagueness and Overbreadth of Statutory Language

See also Section 1,
heading [9], “Vagueness and Overbreadth”.

A law is
unconstitutionally vague if it “does not provide an adequate basis for
legal debate” and “analysis”; “does not sufficiently
delineate any area of risk”; or “is not intelligible”. The law
must offer a “grasp to the judiciary”: R. v. Nova Scotia
Pharmaceutical Society. Certainty is not required. A law must set an
intelligible standard both for the citizens it governs and the officials who
must enforce it. The two are interconnected. A vague law prevents the citizen
from realizing when he or she is entering an area of risk for criminal
sanction. It similarly makes it difficult for law enforcement officers and
judges to determine whether a crime has been committed. This invokes the
further concern of putting too much discretion in the hands of law enforcement
officials, and violates the precept that individuals should be governed by the
rule of law, not the rule of persons. The doctrine of vagueness is directed
generally at the evil of leaving “basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory application”: Grayned
v. City of Rockford, 408 U.S. 104 (1972). Ad hoc discretionary
decision making must be distinguished from appropriate judicial interpretation.
Judicial decisions may properly add precision to a statute. Legislators can
never foresee all the situations that may arise, and if they did, could not
practically set them all out. It is thus in the nature of our legal system that
areas of uncertainty exist and that judges clarify and augment the law on a
case-by-case basis: Canadian Foundation for Children, Youth and the Law v.
Canada (Attorney General), 2004 SCC 4.

The American
jurisprudence distinguishes between vagueness and overbreadth. As Professor
Tribe explains, although there is a parallel between the two concepts,
“vagueness is a constitutional vice conceptually distinct from overbreadth
in that an overbroad law need lack neither clarity nor precision”. A law
that is overly broad sweeps within its ambit activities that are beyond the
allowable area of State control and in fact burdens conduct that is
constitutionally protected. Since the advent of the Charter, the doctrine of
vagueness or overbreadth has been the source of attack on laws on two grounds.
First, a law that does not give fair notice to a person of the conduct that is
contemplated as criminal, is subject to a s. 7 challenge to the extent that
such a law may deprive a person of liberty and security of the person in a
manner that does not accord with the principles of fundamental justice. Second,
where a separate Charter right or freedom has been limited by legislation, the
doctrine of vagueness or overbreadth may be considered in determining whether
the limit is “prescribed by law” within the meaning of s. 1. The
vagueness doctrine does not require that a law be absolutely certain; no law
can meet that standard. In addition, the role of the courts in giving meaning
to legislative terms should not be overlooked when discussing the issue of
vagueness. The void for vagueness doctrine is not to be applied to the bare
words of the statutory provision but, rather, to the provision as interpreted
and applied in judicial decisions. The fact that a particular legislative term is
open to varying interpretations by the courts is not fatal. Flexibility and
vagueness are not synonymous. Therefore, the question here is whether the
impugned sections of the Criminal Code
can be or have been given sensible meanings by the courts. In other words, is
the statute so pervasively vague that it permits a “standardless
sweep” allowing law enforcement officials to pursue their personal
predilections? The words and terms used in s. 193 of the Code are not
terms of art; rather, they are words of common usage that have been interpreted
and applied by courts in the past. This is indicative of the existence of an
ascertainable standard of conduct, a standard that has been given sensible
meaning by courts in a number of cases. Although the language of s. 195.1(1)(c)
of the Code is broad and far-reaching, the terms of the section are not
vague. The type of all-inclusive language used here is not strange to the Criminal Code. A provision whose
language is broad in scope thereby criminalizing a wide range of activity is
not by that reason impermissibly vague. In fact, such a provision may make more
clear what the targeted activity is, and the circumstances in which it is
prohibited. However, while the section is not impermissibly vague, and
therefore does not violate s. 7 for that reason, the issue of whether it is
overly broad may well be a consideration under a potential analysis pursuant to
s. 1 of the Charter: Reference Re Sections 193 and 195.1(1)(c) Criminal Code,
[1990] 1 S.C.R. 1123.

Vagueness can be
raised under s. 7 of the Charter, since it is a principle of fundamental
justice that laws may not be too vague. It can also be raised under s. 1 of the
Charter in limine, on the basis that an enactment is so vague as not to
satisfy the requirement that a limitation on Charter rights be “prescribed
by law”. Furthermore, vagueness is also relevant to the “minimal
impairment” stage of the Oakes test. The “doctrine of
vagueness” is founded on the rule of law, particularly on the principles
of fair notice to citizens and limitation of enforcement discretion. Factors to
be considered in determining whether a law is too vague include (a) the need
for flexibility and the interpretative role of the courts, (b) the
impossibility of achieving absolute certainty, a standard of intelligibility
being more appropriate and (c) the possibility that many varying judicial
interpretations of a given disposition may exist and perhaps coexist.
Vagueness, when raised under s. 7 or under s. 1 in limine, involves
similar considerations. A notion tied to balancing such as overbreadth finds
its proper place in sections of the Charter which involve a balancing process.
However, overbreadth remains no more than an analytical tool. The alleged
overbreadth is always related to some limitation under the Charter. It is
always established by comparing the ambit of the provision touching upon a
protected right with such concepts as the objectives of the State, the
principles of fundamental justice, the proportionality of punishment or the reasonableness
of searches and seizures, to name a few. There is no such thing as overbreadth
in the abstract. Overbreadth has no autonomous value under the Charter. The
threshold for finding a law vague is relatively high. The two rationales of
fair notice to the citizen and limitation of enforcement discretion have been
adopted as the theoretical foundations of the doctrine of vagueness. Fair
notice comprises two aspects. First, there is the more formal aspect of notice,
that is acquaintance with the actual text of a statute. Given that case law
applying and interpreting a particular section is relevant in determining
whether the section is vague, formal notice is not a central concern in a
vagueness analysis. Second, there is a substantive aspect to fair notice, which
could be described as a notice, an understanding that some conduct comes under
the law. The substantive aspect of fair notice is a subjective understanding
that the law touches upon some conduct, based on the substratum of values
underlying the legal enactment and on the role that the legal enactment plays
in the life of the society. The weakness or the absence of substantive notice
before the enactment can be compensated by bringing to the attention of the
public the actual terms of the law, so that substantive notice will be
achieved. Merit point and deriving license revocation schemes are prime
examples of this; through publicity and advertisement these schemes have been
“digested” by society. A law must not be so devoid of precision in
its content that a conviction will automatically flow from the decision to
prosecute. Such is the crux of the concern for limitation of enforcement
discretion. When the power to decide whether a charge will lead to conviction
or acquittal, normally the preserve of the judiciary, becomes fused with the
power to prosecute because of the wording of the law, then a law will be
unconstitutionally vague. The substantive notice and limitation of enforcement
discretion rationales point in the same direction: an unintelligible provision
gives insufficient guidance for legal debate and is therefore
unconstitutionally vague. Legal rules only provide a framework, a guide as to
how one may behave, but certainty is only reached in instant cases, where law
is actualized by a competent authority. In the meantime, conduct is guided by
approximation. By setting out the boundaries of permissible and non-permissible
conduct, these norms give rise to legal debate. They bear substance, and they
allow for a discussion as to their actualization. They therefore limit
enforcement discretion by introducing boundaries, and they also sufficiently
delineate an area of risk to allow for substantive notice to citizens. No
higher requirement as to certainty can be imposed on law in our modern State.
Semantic arguments, based on a perception of language as an unequivocal medium,
are unrealistic. Guidance, not direction, of conduct is a more realistic
objective. A vague provision does not provide an adequate basis for legal
debate, that is for reaching a conclusion as to its meaning by reasoned
analysis applying legal criteria. It does not sufficiently delineate any area
of risk, and thus can provide neither fair notice to the citizen nor a
limitation of enforcement discretion. The modern State intervenes today in
fields where some generality in the enactments is inevitable. The substance of
these enactments remains nonetheless intelligible. One must be wary of using
the doctrine of vagueness to prevent or impede State action in furtherance of
valid social objectives, by requiring the law to achieve a degree of precision
to which the subject matter does not lend itself. A delicate balance must be
maintained between societal interests and individual rights. The doctrine of
vagueness can therefore be summed up in this proposition: a law will be found
unconstitutionally vague if it so lacks in precision as not to give sufficient
guidance for legal debate: R. v. Nova Scotia Pharmaceutical Society,
[1992] 2 S.C.R. 606; R. v. Hall, [2002] 3 S.C.R. 309, 2002 SCC 64.

In this case the
respondent argues that s. 7(3.71) and s. 7(3.765) of the Criminal Code
violate the principle that there must be no crime or punishment except in
accordance with fixed, predetermined law. Specifically, the respondent argues
that the state of international law prior to 1944 was such that it could not
provide fair notice to the accused of the consequences of breaching the still
evolving international law offences. It is not fatal that a particular
legislative term is open to varying interpretations by courts. The fact that
the entire body of international law is not codified and that reference must be
made to opinions of experts and legal writing in interpreting it does not in
itself make the legislation vague or uncertain. This material is often helpful
in determining the proper interpretations to be given to a statute. Further,
the fact that there may be differences of opinion among international law
experts does not necessarily make the legislation vague. It is ultimately for
the court to determine the interpretation that is to be given to a statute.
That questions of law and of fact arise in the interpretation of these
provisions and their application in specific circumstances does not render them
vague or uncertain: R. v. Finta, [1994] 1 S.C.R. 701.

Overbreadth and
vagueness are different concepts, but are sometimes related in particular
cases. The meaning of a law may be unambiguous and thus the law will not be
vague; however, it may still be overly broad. Where a law is vague, it may also
be overly broad, to the extent that the ambit of its application is difficult
to define. Overbreadth and vagueness are related in that both are the result of
a lack of sufficient precision by a legislature in the means used to accomplish
an objective. In the case of vagueness, the means are not clearly defined. In
the case of overbreadth the means are too sweeping in relation to the
objective. Overbreadth analysis looks at the means chosen by the state in
relation to its purpose. In considering whether a legislative provision is over
broad, a court must ask the question: are those means necessary to achieve the
State objective? If the State, in pursuing a legitimate objective, uses means
which are broader than is necessary to accomplish that objective, the principles
of fundamental justice will be violated because the individual’s rights will
have been limited for no reason. The effect of overbreadth is that in some
applications the law is arbitrary or disproportionate. Reviewing legislation
for overbreadth as a principle of fundamental justice is simply an example of
the balancing of the State interest against that of the individual. However,
where an independent principle of fundamental justice is violated, such as the
requirement of mens rea for penal liability, or of the right to natural
justice, any balancing of the public interest must take place under s. 1 of the
Charter. In analyzing a statutory provision to determine if it is overbroad, a
measure of deference must be paid to the means selected by the legislature.
While the courts have a constitutional duty to ensure that legislation conforms
with the Charter, legislatures must have the power to make policy choices.
Before it can be found that an enactment is so broad that it infringes s. 7 of
the Charter, it must be clear that the legislation infringes life, liberty or
security of the person in a manner that is unnecessarily broad, going beyond
what is needed to accomplish the governmental objective. This Court has
approved the use of reasonable hypotheses in determining whether legislation
violates s. 12 of the Charter. The same process may properly be undertaken in
determining the constitutionality of s. 179(1)(b) of the Criminal Code.
The effect of the section is that it could be applied to a man convicted at age
18 of sexual assault of an adult woman who was known to him in a situation
aggravated by his consumption of alcohol. Even if that man never committed
another offence, and was not considered to be a danger to children, at the age
of 65 he would still be banned from attending, for all but the shortest length
of time, a public park anywhere in Canada. The limitation on liberty in s.
179(1)(b) is simply much broader than is necessary to accomplish its laudable
objective of protecting children from becoming victims of sexual offences: R.
v. Heywood, [1994] 3 S.C.R. 761, R. v. Demers, 2004 SCC 46.

The analysis of
overbreadth in relation to s. 7 was considered in R. v. Heywood, at p.
793, where Cory J. observed that “The effect of overbreadth is that in some
applications the law is arbitrary or disproportionate.” Overbreadth in that
respect addresses the potential infringement of fundamental justice where the
adverse effect of a legislative measure on the individuals subject to its
strictures is grossly disproportionate to the state interest the
legislation seeks to protect. Overbreadth in this aspect is, as Cory J. pointed
out, related to arbitrariness. In Heywood, he went on to note “In
analyzing a statutory provision to determine if it is overbroad, a measure of
deference must be paid to the means selected by the legislature. While the
courts have a constitutional duty to ensure that legislation conforms with the Charter,
legislatures must have the power to make policy choices.” The appropriate
degree of deference referred to in Heywood is built into the applicable
standard of “gross disproportionality”. R. v. Clay, [2003] 3
S.C.R. 735, 2003 SCC 75.

In undertaking
vagueness analysis, a court must first develop the full interpretive context
surrounding an impugned provision. This is because the issue facing a court is
whether the provision provides a sufficient basis for distinguishing between
permissible and impermissible conduct, or for ascertaining an “area of risk”.
This does not necessitate an exercise in strict judicial line-drawing because
the question to be resolved is whether the law provides sufficient guidance for
legal debate as to the scope of prohibited conduct. In
determining whether legal debate is possible, a court must first engage in the
interpretive process which is inherent to the “mediating role” of the
judiciary. Vagueness must not be considered in abstracto, but instead
must be assessed within a larger interpretive context developed through an
analysis of considerations such as the purpose, subject matter and nature of
the impugned provision, societal values, related legislative provisions, and
prior judicial interpretations of the provision. Only after exhausting its
interpretive role will a court then be in a position to determine whether an impugned
provision affords sufficient guidance for legal debate. The mediating role of
the judiciary is of particular importance in those situations where practical
difficulties prevent legislators from framing legislation in precise terms. I
would stress, however, that the standard of legal precision required by s. 7
will vary depending on the nature and subject matter of a particular
legislative provision. In particular, a deferential approach should be taken in
relation to legislative enactments with legitimate social policy objectives, in
order to avoid impeding the state’s ability to pursue and promote those
objectives. In the context of environmental protection legislation, a strict
requirement of drafting precision might well undermine the ability of the
legislature to provide for a comprehensive and flexible regime. Moreover, the
precise codification of environmental hazards in environmental protection
legislation may hinder, rather than promote, public understanding of what
conduct is prohibited, and may fuel uncertainty about the “area of risk”
created by the legislation. The analysis of overbreadth under s. 7, and of
cruel and unusual treatment or punishment under s. 12, are quite different from
vagueness analysis. Where a party alleges that a law is overbroad, or that
punishment is cruel and unusual, a court must engage in proportionality
analysis. Proportionality analysis involves an assessment of whether a law, the
terms of which are not vague, applies in a proportionate manner to a particular
fact situation. Inevitably, courts will be required to compare the law with the
facts. In that situation, the use of reasonable hypotheticals will be of
assistance, and may be unavoidable. In the context of vagueness,
proportionality plays no role in the analysis. There is no need to compare the
purpose of the law with its effects (as in overbreadth), or to compare the
punishment with the wrongdoing (as with cruel and unusual punishment). A court
is required to perform its interpretive function, in order to determine whether
an impugned provision provides the basis for legal debate. Given this, I see no
role for the consideration of reasonable hypotheticals in vagueness analysis: Ontario
v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031.

In the Nova
Scotia Pharmaceutical Society and Morales decisions the Supreme
Court made it abundantly clear that the doctrine of vagueness applies to all
types of legislation. In the former decision, Gonthier J. stated: “… the
standard I have outlined applies to all enactments, irrespective of whether
they are civil, criminal, administrative or other. The citizen is entitled to
have the state abide by constitutional standards of precision whenever it
enacts legal dispositions.” These decisions run counter to the
Attorney-General’s contention that a vague enactment cannot be challenged under
s. 7 unless its enforcement provisions include imprisonment as a sanction for
non-compliance. In these decisions, the doctrine is stated to apply not only to
criminal enactments, which normally provide for imprisonment as one of the
sentencing options, but also to civil, administrative and other enactments,
where the sanction of imprisonment would be exceptional. Nothing in these two
decisions appears to require the conclusion that a vague enactment can be
challenged under s. 7 only by a person who is subject to imprisonment upon
conviction and not by someone whose conviction may result in a fine, penalty or
other sanction, together with such stigma as may be attached to the conviction
itself: Canadian Bar Assn. v. B.C.(A.G.), (1993), 101 D.L.R. (4th) 410
(B.C.S.C.).

The absence of any
reference to a mental element in a Criminal
Code provision enacting an offence is not a sufficient basis for a
declaration of vagueness within the meaning of s. 7 of the Charter. As
presently drafted, many Criminal Code
provisions do not refer explicitly to any or all of the requisite fault
elements. The courts, applying established common law principles to the
language used by Parliament, must determine appropriate fault requirements. The
interpretative contribution of the courts must be taken into account when
deciding whether a statutory provision is unconstitutionally vague. Indeed,
vagueness is tested by the court’s ability to interpret statutory language
within the framework of acceptable legal analysis and debate. In the present
case, the trial judge did not base her decision solely on the absence of a
specified fault requirement in the wording of s. 121(1)(c) of the Code.
Rather, she relied mostly on the overbreadth of the proscribed conduct, which
she viewed as unconstitutionally vague even with the inclusion of the mental
element previously identified by this court. The trial judge erred in
concluding that s. 121(1)(c) was unconstitutionally vague on that basis. The
fact that citizens would be surprised to find how broadly the net has been cast
by Parliament in criminalizing corruption in the public service does not mean
that the law is broad to the point of vagueness. Overbreadth has no autonomous
status under the Charter. In Canadian law, it is merely a component of the
doctrine of vagueness, which ranks as a principle of fundamental justice: R.
v. Fisher, (1994), 88 C.C.C. (3d) 103 (Ont. C.A.); leave to appeal refused
(S.C.C., February 2, 1995).

[6.E]
Extradition Cases

It does not follow
from the fact that the procedure for extradition is generally justifiable that
the manner in which the procedures are conducted in Canada and the conditions
under which a fugitive is surrendered can never invite Charter scrutiny. The
pre-eminence of the Constitution must be recognized; the treaty, the
extradition hearing in this country and the exercise of the executive
discretion to surrender a fugitive must all conform to the requirements of the
Charter, including the principles of fundamental justice. In some circumstances
the manner in which the foreign state will deal with the fugitive on surrender,
whether that course of conduct is justifiable or not under the law of that
country, may be such that it would violate the principles of fundamental
justice to surrender an accused under those circumstances. Situations may well
arise where the nature of the criminal procedures or penalties in a foreign
country sufficiently shocks the conscience as to make a decision to surrender a
fugitive for trial there one that breaches the principles of fundamental
justice. However, a judicial system is not fundamentally unjust because it
functions on the basis of an investigatory system without a presumption of
innocence or, generally, because its procedural or evidentiary safeguards have
none of the rigors of our system. Judicial intervention in Canada must be
limited to cases of real substance: Schmidt v. R. et al., [1987] 1
S.C.R. 500; U.S.A. v. Allard and Charette, [1987] 1 S.C.R. 564; Kindler
v. Canada (Minister of Justice), [1991] 2 S.C.R. 779.

The Charter does not
lay down a constitutional prohibition in all cases against extradition unless
assurances are given that the death penalty will not be imposed. The Minister
is required to balance on a case-by-case basis those factors that favour
extradition with assurances against competing factors that favour extradition
without assurances. We hold, however, that such assurances are constitutionally
required in all but exceptional cases. We affirm that it is generally for the
Minister, not the Court, to assess the weight of competing considerations in
extradition policy, but the availability of the death penalty, like death
itself, opens up a different dimension. The difficulties and occasional miscarriages
of the criminal law are located in an area of human experience that falls
squarely within the inherent domain of the judiciary as guardian of the justice
system. The Minister approached this extradition decision on the basis of the
law laid down in Kindler and Ng and related cases. While we
affirm that the “balancing process” set out in Kindler and Ng
is the correct approach, the phrase “shocks the conscience” and
equivalent expressions are not to be taken out of context or equated to opinion
polls. Use of the “shocks the conscience” terminology was intended to
convey the exceptional weight of a factor such as the youth, insanity, mental
retardation or pregnancy of a fugitive which, because of its paramount
importance, may control the outcome of the Kindler balancing test on the
facts of a particular case. The terminology should not be allowed to obscure
the ultimate assessment that is required: namely whether or not the extradition
is in accordance with the principles of fundamental justice. The rule is not
that departures from fundamental justice are to be tolerated unless in a
particular case it shocks the conscience. An extradition that violates the
principles of fundamental justice will always shock the conscience. The
important inquiry is to determine what constitutes the applicable principles of
fundamental justice in the extradition context. The “shocks the
conscience” language signals the possibility that even though the rights
of the fugitive are to be considered in the context of other applicable
principles of fundamental justice, which are normally of sufficient importance
to uphold the extradition, a particular treatment or punishment may
sufficiently violate our sense of fundamental justice as to tilt the balance
against extradition. Examples might include stoning to death individuals taken
in adultery, or lopping off the hands of a thief. The punishment is so extreme
that it becomes the controlling issue in the extradition and overwhelms the
rest of the analysis. The arguments in favour of extradition without assurances
would be as well served by extradition with assurances. There was no convincing
argument that exposure of the respondents to death in prison by execution
advances Canada’s public interest in a way that the alternative, eventual death
in prison by natural causes, would not. This is perhaps corroborated by the
fact that other abolitionist countries do not, in general, extradite without
assurances. Canada is now abolitionist for all crimes, even those in the
military field. The international trend against the death penalty has become
clearer. The death penalty controversies in the requesting State — the United
States — are based on pragmatic, hard-headed concerns about wrongful
convictions. None of these factors is conclusive, but taken together they tilt
the s. 7 balance against extradition without assurances: United States v.
Burns, [2001] 1 S.C.R. 283, 2001 SCC 7.

The elements of
fairness form a minimum standard of s. 7 protection. The extent and nature of
that protection, which is based upon the common law notion of procedural
fairness, will depend upon the context in which it is claimed. To determine the
nature and extent of the procedural safeguards required by s. 7 a court must
consider and balance the competing interest of the state and the individual.
The appellant contends that a dual role has been allotted to the Minister of
Justice by the Extradition Act. The Act requires the Minister to
conduct the prosecution of the extradition hearing at the judicial phase and
then to act as adjudicator in the ministerial phase. These roles are said to be
mutually incompatible and to raise an apprehension of bias on their face. It is
correct that the Minister of Justice has the responsibility to ensure the
prosecution of the extradition proceedings and that to do so the Minister must
appoint agents to act in the interest of the requesting state. However the
decision to issue a warrant of surrender involves completely different
considerations from those reached by a court in an extradition hearing. The
extradition hearing is clearly judicial in its nature while the actions of the
Minister of Justice in considering whether to issue a warrant of surrender are
primarily political in nature. This is certainly not a case of a single official
acting as both judge and prosecutor in the same case. At the judicial phase the
fugitive possesses the full panoply of procedural protection available in a
court of law. At the ministerial phase, there is no longer a lis in
existence. The fugitive has by then been judicially committed for extradition.
The Act simply grants to the Minister a discretion as to whether to
execute the judicially approved extradition by issuing a warrant of surrender.
The arrangement could not raise apprehension of bias in a fully informed
observer: Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631.

Even though the
extradition hearing must be conducted in accordance with the principles of
fundamental justice, this does not automatically entitle the fugitive to the
highest possible level of disclosure. The principles of fundamental justice
guaranteed under s. 7 of the Charter vary according to the context of the
proceedings in which they are raised. It is clear that there is no entitlement
to the most favourable procedures imaginable. The Requesting State concedes
that the fugitive is entitled to know the case against him. In light of the
purpose of the hearing, however, this would simply entitle him to disclosure of
materials on which the Requesting State is relying to establish its prima
facie case. Mr. Dynar does not argue that he did not receive adequate
disclosure of the materials that were being relied upon to establish the prima
facie case against him. It follows that, in light of the limited nature of
extradition hearing, no additional disclosure was required. Quite simply, no
justiciable Charter issue arises in light of the evidence adduced and the
nature of an extradition hearing. The affidavit evidence submitted by the
Requesting State discloses that the evidence was gathered by American
authorities, on American soil, for an American investigation. Any attempt to
demonstrate involvement of Canadian authorities acting in conjunction with
American authorities simply cannot alter this basic fact. If the foreign police
are not governed by the Charter, then the evidence gathered by them cannot be
excluded under s. 24(2) of the Charter. It is true that there are limited
circumstances in which evidence might be excluded without resorting to s.
24(2). Although a fugitive might be able to argue that the admission of some
evidence at an extradition hearing was per se unfair under s. 7 of the Charter,
Mr. Dynar could not have successfully made this argument. The wiretap was
gathered in Nevada, in conformity with the law of the United States, but in a
manner that would be unacceptable in Canada. However, the fact that evidence
was obtained in the foreign jurisdiction in a way that does not comply with our
Charter is not enough on its own to render the proceeding so unfair that the
evidence should be excluded. The facts of the instant appeal illustrate the
logical soundness of the Terry decision. The reasons for exercising
extreme caution in excluding foreign evidence from consideration in the
extradition process on Charter grounds is that it is difficult to imagine how
such evidence could be excluded without indirectly applying the Charter
extraterritorially to the foreign jurisdiction. If this concern applies where
the foreign evidence is being used in a Canadian trial, it must a fortiori
be a very significant if not a governing factor where the foreign evidence is
to be used in a foreign trial: United States of America v. Dynar, [1997]
2 S.C.R. 462; United States of America v. Kwok, [2001] 1 S.C.R. 532,
2001 SCC 18.

The extradition
judge may only order the production of materials relevant to the issues
properly raised at the committal stage of the process, subject to his or her
discretion to expand the scope of that hearing to allow the parties to
establish the factual basis for a subsequent Charter challenge, when it is
expedient to do so, including, obviously, when there is at least an air of
reality to the Charter claims. Requests for disclosure of materials related to
issues which properly belong to the executive phase of extradition, and to the
judicial review thereof, have no independent relevance before the extradition
judge and are subsumed in his or her discretion to hear evidence related to
such issues. In United States v. Whitley, the fugitive was seeking
disclosure of materials similar to the information sought by the appellant, and
essentially for the same purpose. Specifically, Mr. Whitley sought: (i) the
information in the police files in Hamilton pertaining to the Canadian charge
against the appellant; (ii)information concerning the plea and sentencing
arrangements for the appellant’s co-conspirators; (iii)documents and notes on
the decision to prefer a foreign prosecution to a domestic one. In addition, he
requested various internal ministerial briefs and documents relating to the
Minister’s decision to extradite. Noting that the fugitive’s request for
additional disclosure was aimed at exploring s. 6(1) Charter issues, Laskin
J.A., and ultimately this Court, held that such material did not have to be
disclosed, even at the executive phase. Considering the breadth of the
prosecutorial discretion involved in extradition cases, and absent any air of
reality to any suggestion of impropriety or bias on the part of prosecutorial
authorities, the disclosure requests made by the appellant in this case to the
Minister did not bear on issues sufficiently relevant to the surrender
decision, or to the constitutional rights of the appellant in that process, to
require compulsory disclosure: United States of America v. Kwok, [2001]
1 S.C.R. 532, 2001 SCC 18.

In this case, the
appellants have contested their extradition on the basis that extraditing them
would unjustifiedly violate their rights under s. 7, in light of statements
made by the American judge and prosecuting attorney with carriage of the matter
in the United States. The extradition judge’s concern is not principally
whether the appellants will face a possibly unfair trial, or an unfair
sentencing hearing in the United States, or whether, if convicted and sentenced
to imprisonment, they will be subjected to sexual violence as predicted, indeed
as prescribed, by the attorney prosecuting the case against them. These
concerns are for the most part premature at the committal stage as they engage
the consideration of issues involving other constitutional rights, such as ss.
6 and 12, which must await consideration by the Minister, and by the courts
upon judicial review of that executive decision. The s. 7 issue before the
extradition judge is whether the extrajudicial conduct and pronouncements of a
party to the proceedings, or of those associated with that party, disentitle
that party from the judicial assistance that it is seeking and whether it would
violate the principles of fundamental justice to commit the fugitives for surrender
to the Requesting State. The extradition judge was correct in deciding in this
case that the matter before him should be stayed for abuse of process. The
statements made by the American judge and the U.S. attorney may properly be
visited upon the Requesting State itself, who was a party before the court.
This is particularly so since the U.S. attorney who made the impugned
statements was the prosecutor who had carriage of the case and also the
principal affiant before the extradition judge in support of the case for the
United States. Both statements, or at the very least the prosecutor’s
statement, were an attempt to influence the unfolding of the Canadian judicial
proceedings by putting undue pressure on the appellants to desist from their
objections to the extradition request. The pressures were not only
inappropriate but also, in the case of the statements made by the prosecutor on
the eve of the opening of the judicial hearing in Canada, unequivocally
amounted to an abuse of the process of the court. These concerns, and the
remedies to which they give rise, properly belong to the judicial phase of the
extradition process as they are not dependent on the ultimate outcome of either
the committal or the surrender decision: United States of America v. Cobb,
[2001] 1 S.C.R. 587, 2001 SCC 19.

This Court has
recently expressed the seriousness with which it views deportation or
extradition to countries where torture and/or death are distinct possibilities:
United States v. Burns, [2001] 1 S.C.R. 283; Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3. In such cases, guarantees of
fundamental justice apply even where deprivations of life, liberty or security
may be effected by actors other than the Canadian government, if a sufficient causal
connection exists between the participation of the Canadian government and the
ultimate deprivation effected. A sufficient causal connection exists where
information gathered under the “judicial investigative hearing”
provision of s. 83.28 of the Criminal Code is used to effect deprivations of
liberty, such as torture or death, in circumstances where the government’s
participation was a necessary precondition, and the resulting deprivation an
entirely foreseeable consequence of the participation. Accordingly,
deportations or extraditions must accord with the principles of fundamental
justice. Consequently, the parameters recognized in Burns, supra, and Suresh,
supra, must be respected: Application under s. 83.28 of the Criminal Code (Re),
2004 SCC 42.

Where a Canadian
official is shown to have acted improperly, in bad faith or with malicious
intent in procuring the extradition of a Canadian citizen, that can form the
basis for finding an abuse of process, or a violation of s. 7 of the Charter
which cannot be justified. The type of evidence which would be required to make
out such a claim is described as follows in R. v. Power, [1994] 1 S.C.R. 601:
“Where there is conspicuous evidence of improper motives or of bad faith
or of an act so wrong that it violates the conscience of the community, such
that it would genuinely be unfair and indecent to proceed, then, and only then,
should courts intervene to prevent an abuse of process which could bring the
administration of justice into disrepute. Cases of this nature will be
extremely rare.” This test has been applied at the ministerial stage of
extradition proceedings to scrutinize the conduct of Canadian officials under
s.6 of the Charter, particularly in the exercise of their prosecutorial
discretion. The test is consistent with the Supreme Court of Canada’s test for
abuse of process set out in U.S.A. v. Cobb, supra. In light of the limited
Charter jurisdiction now extended to the committal judge, it is appropriate to
apply that test at the committal stage to ensure that the conduct of Canadian
officials complies with the Charter throughout the extradition process: United
States of America v. Gillingham, 2004 BCCA 226.

The question of
whether there was a right to cross-examine on documentary evidence submitted on
an extradition hearing was considered in Re State of Wisconsin and Armstrong,
32 D.L.R. (3d) 265, in relation to ss. 1(a)
and 2(e) of the Canadian Bill of Rights. The wording of those sections
is almost identical to the wording of s.7 of the Charter and the reasoning in Armstrong,
holding that no right to cross-examine on the documents existed, should be
followed: Schmidt v. The Queen, [1987] 1 S.C.R. 500.

In this case the
fugitive, a Canadian citizen, faces the prospect of incarceration in the State
of Florida for a minimum of just over six years, or five years if transferred
to Canada, in respect of offences for which, if convicted in Canada, he would
probably serve less than two years before being eligible for consideration for
full parole. It is in this context that we must ask whether the case meets the
test laid down in U.S.A. v. Allard, supra: “To arrive at the conclusion
that the surrender of the respondents would violate the principles of
fundamental justice, it would be necessary to establish that the respondents
would face a situation which is simply unacceptable.” While the acceptability
of the penalty in this country is obviously a factor to be considered, the
question is not one which can be answered by deciding whether or not the
penalty would be constitutionally valid if prescribed by Canadian law. We do
not have any means of contrasting the extent of drug-driven crime in Florida
with that in Canada, but we know that trafficking in narcotics on the scale
said to be involved in this case is a very serious crime, one for which there
can be few, if any, excuses, and that it carries a maximum penalty in this
country of imprisonment for life. It is entirely reasonable that the Florida
legislature should regard it as an even greater scourge in that State than we
regard it in Canada, and should decide to invoke a substantially more severe
sentencing regime for such cases than has as yet been introduced here. We must
have in mind that the purposes of the Extradition Act and the treaty
would be defeated if Canadian citizens who return to Canada after committing
drug offences in the United States were to receive privileged treatment, and
become favoured operators in the United States drug underworld. The application
of the Charter to these cases cannot require that extradition be denied simply
because the consequences which await the alleged fugitive in the requesting
jurisdiction would not conform with requirements of the Charter if provided for
by Canadian law, nor because the alleged fugitive is a Canadian national. It is
apparent that more than that must be shown before the appropriate test can be
said to have been met: Ross v. U.S.A., (1994) 93 C.C.C. (3d) 500
(B.C.C.A.); appeal dismissed, [1996] 1 S.C.R. 469.

[6.F]
Exclusion of Evidence Obtained Abroad

The general issue in
this appeal is whether an inculpatory statement, made without the benefit of
counsel by a Canadian citizen to American peace officers, concerning her
participation in a criminal offence in Canada, is admissible in evidence by the
Crown when the statement, though made in accordance with United States law,
would if taken in Canada by Canadian police in similar circumstances violate
the accused’s right to counsel under s. 10(b) of the Charter. The application
of the Charter could only be triggered when the Canadian police began
proceedings against the accused on her return to Canada. The appellant does not
complain about any improper police action in Canada. Consequently, the only
grounds that may be available to the appellant is that the admission of the
evidence would violate the appellant’s liberty interests in a manner that is
not in accordance with the principles of fundamental justice under s. 7, or
would violate the guarantee of a fair trial under s. 11(d) of the Charter. In
approaching this issue, I do not think one can automatically assume that the
evidence was unfairly obtained or that its admission would be unfair simply
because it was obtained in a manner that would in this country violate a
Charter guarantee. As in other cases involving broad concepts like “fairness”
and “principles of fundamental justice”, one is not engaged in absolute or
immutable requirements; these concepts vary with the context in which they are
invoked. We must be mindful that a constitutional rule may be adopted to ensure
that our system of obtaining evidence is so devised as to ensure that a
guaranteed right is respected as a matter of course. Thus there may well be
cases where in an objective sense there may be no unfairness where a second
warning is not given to a suspect when an investigation moves to a more serious
offence, but by imposing the rule we encourage a type of police practice that
ensures the individual’s right to counsel is respected. The rule is not geared
to the individual case alone, but to ensuring the fairness of the system and
general respect for this country’s constitutional values. We have no systemic
concern of this kind in relation to the actions of foreign police abroad. We
are concerned solely with whether the admission of evidence in the particular
case will affect the fairness of the trial. The fact that the evidence was
obtained in another country in accordance with the law of that country may be a
factor in assessing fairness. More specifically, conformity with the law of a country
with a legal system similar to our own has even more weight, for we know that a
number of different balances between conflicting principles can be fair. But
the foreign law is not governing in trials in this country. Simply, what we
seek is a fair trial in the specific context, and I am by no means sure this
requirement can be satisfied by the rejection of foreign evidence only in the
most egregious circumstances. However, this issue does not arise here. While no
new warning was given when the interrogation moved to the more serious offence
under Canadian law, I do not think this was unfair in the circumstances of this
case. In general terms, I have some hesitation in accepting in the abstract
that an enquiry conducted in the United States in accordance with the Miranda
case is automatically unfair in situations that would in this country require a
second warning. Our more stringent rule exists for systemic reasons and is not
addressed to determining the fairness of a single situation taking place in another
country. I would be inclined to think that evidence obtained following a Miranda
warning should ordinarily be admitted at a trial unless in the light of other
circumstances the court has reason to think the admission of the evidence would
make the trial unfair. Had the circumstances been such that the admission of
the evidence would lead to an unfair trial, I would have had no difficulty
rejecting the evidence by virtue of the Charter. I would not take this step
under s. 24(2) nor would I rely on s. 24(1). Rather I would reject the evidence
on the basis of the trial judge’s duty, now constitutionalized by the
enshrinement of a fair trial in the Charter, to exercise properly his or her
judicial discretion to exclude evidence that would result in an unfair trial: R.
v. Harrer, [1995] 3 S.C.R. 562, 101 C.C.C. (3d) 193 (S.C.C.).

The appellant in
this case argues that all evidence tendered in Canada ought to be treated as
though the Charter applies to it, regardless of where it was obtained, with the
consequence that a failure of foreign police to observe the requirements of the
Charter constitutes a violation sufficient to engage s. 24(2) of the Charter.
The main difficulty this argument encounters is that s. 24(2) of the Charter
applies only if a breach of the Charter is established. In order to find a
Charter breach, it is necessary to find that in detaining the appellant under
the authority of a U.S. warrant, the Santa Rosa police were subject to the
Charter. Such a finding would run counter to the settled rule that a state is
only competent to enforce its laws within its own territorial boundaries. The
appellant argues that it is unfair and artificial to treat evidence gathered
abroad any differently than evidence gathered in Canada. From the point of view
of fairness, he asserts, it makes little difference to an accused whether the
police conduct at issue occurred in this country or elsewhere. The first answer
to this argument is that s. 24(2) is not an independent source of Charter
rights; it is merely a remedy for their breach. The second answer to this
argument is that it is not in fact unfair to treat evidence gathered abroad
differently from evidence gathered on Canadian soil. People should reasonably
expect to be governed by the laws of the state in which they currently abide,
not those of the state in which they formerly resided or continue to maintain a
principal residence. Nor does this leave the traveller abroad without a remedy
for abuse in the course of foreign evidence-gathering. As this Court articulated
in Harrer, supra, while s. 24(2) of the Charter may not be available in
such a case, other provisions are. The Charter guarantees the accused a fair
trial: s. 11(d). More generally, the Charter provides that the accused’s
liberty cannot be limited except in accordance with the principles of
fundamental justice: s. 7. To admit evidence gathered in an abusive fashion may
well violate the principles of fundamental justice. For example, the common law
confessions rule was extended in accordance with the principles of fundamental
justice under s. 7 of the Charter in R. v. Hebert, [1990] 2 S.C.R. 151.
The principle against self-incrimination has similarly been held to be one of
the principles of fundamental justice under s. 7: R. v. S. (R.J.),
[1995] 1 S.C.R. 451. The accused may use these and other principles of
fundamental justice to obtain redress for abuses abroad in gathering evidence
subsequently tendered against him or her: R. v. Terry, [1996] 2 S.C.R.
207.

In this case, the
Court is called upon to determine whether the investigative actions of Canadian
authorities on foreign soil, in connection with a crime committed in Canada and
to be prosecuted in Canada, are subject to the Charter. In our view, the
Charter applies to the actions of the Vancouver detectives in interviewing the
appellant in New Orleans. Two factors are critical to this conclusion and
provide helpful guidelines for recognizing those rare circumstances where the
Charter may apply outside of Canada: (1) the impugned act falls within s. 32(1)
of the Charter; and (2) the application of the Charter to the actions of the
Canadian detectives in the United States does not, in this particular case,
interfere with the sovereign authority of the foreign state and thereby
generate an objectionable extraterritorial effect. The scope of the Charter
application beyond Canadian territory cannot be determined merely by reference
to s. 32(1). The analysis is further conditioned by the accepted principle of
international law that “since states are sovereign and equal, it follows that
one state may not exercise jurisdiction in a way that interferes with the
rights of other states”. We caution that the holding in this case marks an
exception to the general rule in public international law that a state cannot
enforce its laws beyond its territory. The exception arises on the basis of
very particular facts before us. Specifically, the impugned actions were
undertaken by Canadian governmental authorities in connection with the
investigation of a murder committed in Canada for a process to be undertaken in
Canada. The appellant, the rights claimant herein, was being compulsorily
brought before the Canadian justice system. This situation is far different
from the myriad of circumstances in which persons outside Canada are trying to
claim the benefits of the Charter simpliciter: R. v. Cook, [1998]
2 S.C.R. 597.

[7]
Property and Economic Rights

What is immediately
striking about s. 7 is the inclusion of “security of the person” as
opposed to “property”. This stands in contrast to the classic liberal
formulation, adopted, for example, in the Fifth and Fourteenth Amendments in
the American Bill of Rights. The intentional exclusion of property from s. 7,
and the substitution therefore of “security of the person” has a dual
effect. First, it leads to a general inference that economic rights as
generally encompassed by the term “property” are not within the
perimeters of the s. 7 guarantee. This is not to declare, however, that no
right with an economic component can fall within “security of the
person”. Lower courts have found that the rubric of “economic
rights” embraces a broad spectrum of interests, ranging from such rights,
included in various international covenants, as rights to social security,
equal pay for equal work, adequate food, clothing and shelter, to traditional
property – contract rights. To exclude all of these at this early moment in the
history of Charter interpretation seems to be precipitous. This Court does not,
at this moment, choose to pronounce upon whether those economic rights
fundamental to human life or survival are to be treated as though they are of
the same ilk as corporate-commercial economic rights. In so stating, this Court
finds the second effect of the inclusion of “security of the person”
to be that a corporation’s economic rights find no constitutional protection in
that section: Irwin Toy Ltd. v. A.G. Que., [1989] 1 S.C.R. 927.

The appellants in
this case submitted that the challenged law violates their right under s. 7 to
pursue a lawful occupation. Additionally, they submitted that it restricts
their freedom of movement by preventing them from pursuing their chosen
profession in a certain location, namely, the Town of Winkler. However, as a
brief review of this Court’s Charter jurisprudence makes clear, the
rights asserted by the appellants do not fall within the meaning of s. 7. The
right to life, liberty and security of the person encompasses fundamental life
choices, not pure economic interests. As La Forest J. explained in Godbout
v. Longueuil (City): “. . . the autonomy protected by the s. 7 right to
liberty encompasses only those matters that can properly be characterized as
fundamentally or inherently personal such that, by their very nature, they
implicate basic choices going to the core of what it means to enjoy individual
dignity and independence”: Siemens v. Manitoba (Attorney General),
[2003] 1 S.C.R. 6, 2003 SCC 3.

The jurisprudence
that has developed under the Charter has made clear that economic rights as
generally encompassed by the term “property” and the economic right to carry on
a business, to earn a particular livelihood, or to engage in a particular
professional activity all fall outside the s. 7 guarantee: A & L
Investments Ltd. v. Ontario, (1997), 152 D.L.R.(4^th) 692 (Ont.
C.A.).

The right to life,
liberty and security of the person has been held not to encompass economic
rights per se. Consequently, the fairness of depriving the owner of a
motor vehicle temporarily of his property by reason of the fact that it was
being driven by a person whose licence had been suspended or cancelled is not a
Charter issue; it is a matter for the legislature alone to decide: R. v.
Werhun, (1991) 62 C.C.C. (3d) 440 (Man. C.A.).

The position of the
applicants in this case is that by imposing a cash security deposit
requirement, the Peterborough Utilities Commission denied them electrical
service and thereby threatened their physical and psychological health and that
of their families. Deprivation of electricity results in an absence of heat,
light, cooling, refrigeration, hot water and fire alarms and would render their
homes uninhabitable. It therefore becomes an issue of a right to housing which
should be included within their right to life and security of the person. The
security deposit is of course only one of several factors relevant to the issue
of affordable housing. Dickson C.J., speaking for the majority in Irwin Toy
Ltd., supra, ruled that generally economic or property rights do not come
within the parameters of s. 7. Neither Irwin Toy nor any other authority
stands for the proposition urged by the applicants. Their submission goes
beyond s. 7‘s right to life and security of the person to seek a certain level
of means and service as a guaranteed right. It is a plea for economic
assistance which goes beyond a claim with an economic component to claim
utility services as a basic economic and social right devoid of any
responsibility to prove oneself to be credit-worthy. This type of claim
requires the kind of value and policy judgments and degree of social obligation
which should properly be addressed by legislatures and responsible organs of
government, not by courts under the guise of “principles of fundamental
justice” under s. 7: Clark v. Peterborough Utilities Commission, (1995),
24 O.R. (3d) 7 (Ont. Gen. Div.).

[8] Civil
Causes of Action and Procedure

The removal of an
injured workman’s right to bring an action for damages pursuant to the
provisions of The Workmen’s Compensation Act, is not a matter that falls
within the meaning of “security of the person”, nor does it give rise
to any denial of Charter rights otherwise than in accordance with the
principles of fundamental justice: Terzian v. Workmen’s Compensation Board
et al. (1983), 6 C.R.R. 212 (Ont. Div.
Ct.); Budge v. Workers’ Compensation Board, [1985] 1 W.W.R. 437 (Alta.
Q.B.); Ryan et al. v. Workmen’s Compensation Board, (1984) 6 O.A.C. 33
(Ont. Div. Ct.); City of Calgary v. Budge, (1991), 77 D.L.R. (4th) 361
(Alta. C.A.).

As held in Videoflicks,
supra, s.7 relates to one’s physical or mental integrity. It does not apply
to a person’s right to commence an action for damages and thus it does not
invalidate the six month limitation period prescribed by the Public
Authorities Protection Act of Ontario: Mirhadizadeh v. The Queen,
(1986), 33 D.L.R. (4th) 314 (Ont. S.C.); appeal dismissed, (1989), 60 D.L.R.
(4th) 597 (Ont. C.A.); Wittman v. Emmott, [1991] 4 W.W.R. 175
(B.C.C.A.); Filip v. Waterloo (City), (1992), 98 D.L.R. (4th) 534 (Ont.
C.A.).

The Alberta Court of
Queen’s Bench in Public Trustee v. Workers’ Compensation Board, [1987] 6
W.W.R. 217, seems to import into the Charter the American constitutional civil
right to bring an action for damages for injury. It has been conclusively
determined that proprietary rights of this sort were purposely excluded from
the Charter’s protection, and this Court therefore respectfully believes that
case to be wrongly decided: Medwid v. The Queen, (1988) 48 D.L.R. (4th)
272 (Ont. S.C.); City of Calgary v. Budge, [1991] 3 W.W.R. 1 (Alta.
C.A.).

A claim for damages
for personal injuries suffered falls within the economic realm and is not
within s. 7 of the Charter: Whitbread v. Walley, (1987), 19 B.C.L.R.
(2d) 120 (B.C.S.C.); appeal dismissed, (1988), 51 D.L.R. (4th) 509 (B.C.C.A.);
appeal dismissed, [1990] 3 S.C.R. 1273; Wittman v. Emmott, [1991] 4
W.W.R. 175 (B.C.C.A.).

The Charter relates
to the protection of the person and to personal rights and freedoms and does
not apply to interest in or damages pertaining to the disposal of property.
Accordingly, a statute which prescribes a cause of action is not inconsistent
with s. 7: Apsassin v. The Queen, [1988] 3 F.C. 20 (F.C.T.D.);
appeal dismissed, (1993), 100 D.L.R. (4th) 504 (F.C.A.); appeal allowed on
other grounds, [1995] 4 S.C.R. 344.

It has not been a
principle of fundamental justice in Canada that a civil remedy is suspended
until criminal proceedings arising out of the same facts have been concluded.
However, the civil courts have retained the power to control their own
proceedings by exercising a discretion to stay an action in the face of
criminal proceedings in extraordinary or exceptional cases. Thus, there is no
absolute right to have civil proceedings stayed in the face of criminal
proceedings, but there is a protection, available on a discretionary basis, in
extraordinary or exceptional circumstances. But to elevate that limited
protection to the status of a fundamental right is not justified: Haywood
Securities Inc. v. Inter-Tech Resource Group Inc. et al., (1986),
24 D.L.R. (4th) 724 (B.C.C.A.); Schwartz v. Stinchcombe (1990), 110 A.R. 62 (Alta. Q.B.).

The principles of
fundamental justice do not require that litigants have a trial when there is no
serious issue to be tried. Accordingly, the granting of summary judgment
against the guarantor of a debt in this case did not infringe the Charter: McMurchy
v. Fitzhenry et al., (1986), 46 Alta. L.R. (2d) 388 (Alta. C.A.).

The right to trial
by jury in civil matters is not a principle of fundamental justice: Fairchels
et al. v. The Queen et al., (1988), 23 B.C.L.R. (2d) 238 (B.C.S.C.).

A statutory
enactment cannot stand in the way of a constitutional entitlement. Section
32(1)(b) of the Charter provides that the Charter applies to the legislature
and government of each province. The remedy section of the Charter would be
emasculated if the provincial government, as one of the very powers the Charter
seeks to control, could declare itself immune. Therefore, s. 5(6) of the
Ontario Proceedings Against the Crown Act must be construed as limited
to the causes of action that are permitted against the Crown under s. 5(1) of
that Act, and cannot infringe upon a s. 24(1) Charter remedy. The next
issue to consider is, if absolute immunity from Charter relief cannot be
afforded by less than constitutional enactments, can immunity be imposed after
a period of time as set out in s. 11 of the Public Authorities Protection
Act? In the context of the Charter, limitation periods are very different
from the rules of procedure which effect a dismissal for failure to meet time
requirements. First and foremost, the rules are subject to the discretion of
the court, whereas the statute is not. In practice, a meritorious claim will be
permitted to proceed, perhaps on terms, despite a breach of the rules. In M.
(K.) v. M. (H.), [1992] 3 S.C.R. 6, La Forest J. describes the historic
purposes of limitation periods as providing a time when prospective defendants
can be secure that they will not be held to account for ancient obligations,
foreclosing claims based on stale evidence, permitting destruction of
documents, and assuring that plaintiffs do not sleep on their rights. Those
purposes are best served, when Charter remedies are sought, by the court
refusing relief on the basis of laches, in appropriate cases. The purpose of
the Charter, in so far as it controls excesses by governments, is not at all
served by permitting those same governments to decide when they would like to
be free of those controls and put their houses in order without further threat
of complaint. Having found that immunity is not available under the Proceedings
Against the Crown Act from a claim for Charter remedy, it therefore follows
that s. 11 of the Public Authorities Protection Act should be read as
not applying to relief claimed under s. 24(1) of the Charter: Prete v.
Ontario, (1993), 86 C.C.C. (3d) 442 (Ont. C.A.); leave to appeal refused
(S.C.C., April 28, 1994). [Note: A different conclusion was reached by
the Quebec Court of Appeal in Gauthier v. Lambert et al., [1988] R.D.J. 14 (leave to appeal refused,
S.C.C., May 26, 1988), in which it was held that the remedies flowing from
article 1053 of the Civil Code, which before the advent of the Charter
covered the major part of the range of possible remedies for victims of any
sort of damage, continue to be subject to the short limitation periods
envisaged by other provisions of the Civil Code. Similarly, in Nagy
v. Phillips, (1996), 137 D.L.R. (4^th) 715 (Alta. C.A.), it was
held that a Charter claim for damages was subject to the prescriptions of the Limitations
of Actions Act.]

[9]
Disclosure and Discovery in Criminal Cases

There is no valid
practical reason to support the position of the opponents of a broad duty of
disclosure by the Crown. Apart from the practical advantages, there is the
overriding concern that failure to disclose impedes the ability of the accused
to make full answer and defence. This common law right has acquired new vigour
by virtue of its inclusion in s. 7 of the Charter as one of the principles of
fundamental justice. There is a general duty on the part of the Crown to
disclose all material it proposes to use at trial and especially all evidence
which may assist the accused even if the Crown does not propose to adduce it.
However, this obligation to disclose is not absolute. It is subject to the
discretion of counsel for the Crown. This discretion extends both to the
withholding of information and to the timing of disclosure. For example,
counsel for the Crown has a duty to respect the rules of privilege. In the case
of informers the Crown has a duty to protect their identity. In some cases
serious prejudice or even harm may result to a person who has supplied evidence
or information to the investigation. While it is a harsh reality of justice
that ultimately any person with relevant evidence must appear to testify, the
discretion extends to the timing and manner of disclosure in such circumstances.
A discretion must also be exercised with respect to the relevance of
information. While the Crown must err on the side of inclusion, it need not
produce what is clearly irrelevant. There may also be situations in which early
disclosure may impede completion of an investigation. Delayed disclosure on
this account is not to be encouraged and should be rare. The discretion of
Crown counsel is reviewable by the trial judge. Counsel for the defence can
initiate a review when an issue arises with respect to the exercise of the
Crown’s discretion. On a review the Crown must justify its refusal to disclose.
Inasmuch as disclosure of all relevant information is the general rule, the
Crown must bring itself within an exception to that rule. The trial judge on a review
should be guided by the general principle that information ought not to be
withheld if there is a reasonable possibility that the withholding of
information will impair the right of the accused to make full answer and
defence, unless the non-disclosure is justified by the law of privilege. The
trial judge might also, in certain circumstances, conclude that the recognition
of an existing privilege does not constitute a reasonable limit on the
constitutional right to make full answer and defence and thus require
disclosure in spite of the law of privilege. The trial judge may also review
the decision of the Crown to withhold or delay production of information by
reason of concern for the security or safety of witnesses or persons who have
supplied information to the investigation. In such circumstances, while much
leeway must be accorded to the exercise of the discretion of the counsel for
the Crown with respect to the manner and timing of the disclosure, the absolute
withholding of information which is relevant to the defence can only be
justified on the basis of the existence of a legal privilege which excludes the
information from disclosure. The general principles referred to herein arise in
the context of indictable offences. While it may be argued that the duty of
disclosure extends to all offences, many of the factors canvassed may not apply
at all or may apply with less impact in summary conviction offences. Moreover,
the content of the right to make full answer and defence entrenched in s. 7 of
the Charter may be of a more limited nature. A decision as to the extent to
which the general principles of disclosure extend to summary conviction
offences should be left to a case in which the issue arises in such
proceedings: R. v. Stinchcombe, [1991] 3 S.C.R. 326.

This Court has
clearly established that the Crown is under a general duty to disclose all
information, whether inculpatory or exculpatory, except evidence that is beyond
the control of the prosecution, clearly irrelevant, or privileged. The Crown obligation
to disclose all relevant and non-privileged evidence requires that the Crown
exercise the utmost good faith in determining which information must be
disclosed and in providing ongoing disclosure. When the Crown alleges that it
has discharged its obligation to disclose, an issue may arise as to whether
disclosure is complete in two situations: (1) the defence contends that
material that has been identified and is in existence ought to have been
produced; or (2) the defence contends that that material whose existence is in
dispute ought to have been produced. In situations in which the existence of
certain information has been identified, then the Crown must justify
non-disclosure by demonstrating either that the information sought is beyond
its control, or that it is clearly irrelevant or privileged. The trial judge
must afford the Crown an opportunity to call evidence to justify such
allegation of non-disclosure. Justification of non-disclosure on the grounds of
public interest privilege or other privilege may involve certain special
procedures such as the procedure referred to in s. 37(2) of the Canada
Evidence Act to protect the confidentiality of the evidence. In some cases,
the existence of material which is alleged to be relevant is disputed by the
Crown. Once the Crown alleges that it has fulfilled its obligation to produce
it cannot be required to justify the non-disclosure of material the existence
of which it is unaware or denies. Before anything further is required of the
Crown, therefore, the defence must establish a basis which could enable the
presiding judge to conclude that there is in existence further material which
is potentially relevant. Relevance means that there is a reasonable possibility
of being useful to the accused in making full answer and defence. The existence
of the disputed material must be sufficiently identified not only to reveal its
nature but also to enable the presiding judge to determine that it may meet the
test with respect to material which the Crown is obliged to produce. The
obligation cast upon the defence can, and in many cases will, be discharged not
by leading or pointing to evidence but by oral submissions of counsel without
the necessity of a voir dire The requirement that the defence provide a
basis for its demand for further production serves to preclude speculative,
fanciful, disruptive, unmeritorious, obstructive and time-consuming disclosure
requests. In cases involving wiretaps, such as this appeal, this is
particularly important. Routine disclosure of the evidence of wiretaps in
relation to a particular accused who has been charged, but who is the subject
of wiretaps for ongoing criminal investigations in relation to other suspected
offences, would impede the ability of the state to investigate a broad array of
sophisticated crimes which are otherwise difficult to detect, such as
drug-trafficking, extortion, fraud and insider trading. If the defence
establishes a basis, the Crown must then justify a continuing refusal to
disclose. The obligation of the Crown is the same as its obligation in first
instance. Generally, if the matter cannot be resolved without viva voce
evidence, the Crown must be afforded an opportunity to call relevant evidence: R.
v. Chaplin, [1995] 1 S.C.R. 727.

The Crown can only
produce what is in its possession or control. There is no absolute right to
have originals produced. If the Crown has the originals of documents which
ought to be produced, it should either produce them or allow them to be
inspected. If, however, the originals are not available and if they had been in
the Crown’s possession, then it should explain their absence. If the
explanation is satisfactory, the Crown has discharged its obligation unless the
conduct which resulted in the absence or loss of the original is in itself such
that it may warrant a remedy under the Charter: R. v. Stinchcombe,
[1995] 1 S.C.R. 754.

The right of
disclosure would be a hollow one if the Crown were not required to preserve
evidence that is known to be relevant. Yet despite the best efforts of the
Crown to preserve evidence, owing to the frailties of human nature, evidence
will occasionally be lost. The principle in Stinchcombe No. 2, supra,
recognizes this unfortunate fact. Where the Crown’s explanation satisfies the
trial judge that the evidence has not been destroyed or lost owing to
unacceptable negligence, the duty to disclose has not been breached. Where the
Crown is unable to satisfy the judge in this regard, it has failed to meet its
disclosure obligations, and there has accordingly been a breach of s. 7 of the
Charter. Such a failure may also suggest that an abuse of process has occurred,
but that is a separate question. It is not necessary that an accused establish
abuse of process for the Crown to have failed to meet its s. 7 obligation to
disclose. In order to determine whether the explanation of the Crown is
satisfactory, the Court should analyse the circumstances surrounding the loss
of the evidence. The main consideration is whether the Crown or the police (as
the case may be) took reasonable steps in the circumstances to preserve the
evidence for disclosure. One circumstance that must be considered is the
relevance that the evidence was perceived to have at the time. The police
cannot be expected to preserve everything that comes into their hands on the
off-chance that it will be relevant in the future. In addition, even the loss
of relevant evidence will not result in a breach of the duty to disclose if the
conduct of the police is reasonable. But as the relevance of the evidence
increases, so does the degree of care for its preservation that is expected of
the police. What is the conduct arising from failure to disclose that will
amount to an abuse of process? By definition it must include conduct on the
part of governmental authorities that violates those fundamental principles
that underlie the community’s sense of decency and fair play. The deliberate
destruction of material by the police or other officers of the Crown for the
purpose of defeating the Crown’s obligation to disclose the material will,
typically, fall into this category. Other serious departures from the Crown’s
duty to preserve material that is subject to production may also amount to an
abuse of process notwithstanding that a deliberate destruction for the purpose
of evading disclosure is not established. In some cases an unacceptable degree
of negligent conduct may suffice. The Crown’s obligation to disclose evidence
does not, of course, exhaust the content of the right to make full answer and
defence under s. 7. Even where the Crown has discharged its duty by disclosing
all relevant information in its possession and explaining the circumstances of
the loss of any missing evidence, an accused may still rely on his or her s. 7
right to make full answer and defence. Thus, in extraordinary circumstances,
the loss of a document may be so prejudicial to the right to make full answer
and defence that it impairs the right of an accused to receive a fair trial. In
such circumstances, a stay may be the appropriate remedy: R. v. La (H.K.),
[1997] 2 S.C.R. 680.

Crown witnesses,
even informants, are not the property of the Crown whom the Crown can control
and produce for examination by the defence. The obligation of the Crown to
disclose does not extend to producing its witnesses for oral discovery: R.
v. Khela, [1995] 4 S.C.R. 201.

Outside the
wiretapping domain, this Court has repeatedly held that a criminal accused does
not enjoy an absolute right to disclosure of confidential investigative
information held by the state under the right to full answer and defence. As
this Court held in R. v. Stinchcombe, [1991] 3 S.C.R. 326, the Crown’s
obligation to disclose all relevant information prior to trial “is not
absolute”. Under Stinchcombe and its progeny, the Crown is not obliged
to disclose information which is clearly irrelevant, beyond the control of the
prosecution, or protected by a recognized form of privilege. As Sopinka J.
elaborated in R. v. Durette, supra, the Crown may justify non-disclosure
in circumstances where “the public interest in non-disclosure outweighs
the accused’s interest in disclosure”. For instance, the Crown’s
obligation of disclosure under Stinchcombe remains subject to the
“informers privilege” at common law. Sopinka J. and I indicated in R.
v. O’Connor, supra, that in some circumstances the scope of the traditional
“informers privilege” may be forced to yield to the constitutional
demands of s. 7 given the compelling “societal interest in preventing a
miscarriage of justice”. But the important point remains that even in the
context of criminal trial, the individual’s right to full answer and defence
must be balanced against — and may at some point yield to — the state’s
competing interest in preserving the confidentiality of its investigations and
the safety of its informers: Michaud v. Quebec (Attorney General),
[1996] 3 S.C.R. 3.

Informer privilege
is subject only to one exception, known as the “innocence at stake”
exception. It has been suggested that the Charter, as interpreted in Stinchcombe,
has introduced another exception to the informer privilege rule based on the
right to full disclosure of documents in the Crown’s possession in aid of the
Charter guarantee of the right to make full answer and defence. This argument
rests on a right to disclosure broader than any which this Court has
enunciated. In Stinchcombe, the right to disclosure of Crown documents
was expressly made subject to two conditions: relevance (to be interpreted
generously as including all that is not clearly irrelevant) and privilege. The
right to disclosure was not to trump privilege. Any doubt about its application
to informer privilege was expressly negated. This Court has consistently
affirmed that it is a fundamental principle of justice, protected by the
Charter, that the innocent must not be convicted. To the extent that rules and
privileges stand in the way of an innocent person establishing his or her
innocence, they must yield to the Charter guarantee of a fair trial. The common
law rule of informer privilege, however, does not offend this principle. From
its earliest days, the rule has affirmed the priority of the policy of the law
“that an innocent man is not to be condemned when his innocence can be
proved” by permitting an exception to the privilege where innocence is at
stake: Marks v. Beyfus. I find no inconsistency between the Charter
right to disclosure of Crown documents affirmed in Stinchcombe, and the
common law rule of informer privilege. Where the accused seeks to establish
that a search warrant was not supported by reasonable grounds, the accused may
be entitled to information which may reveal the identity of an informer
notwithstanding informer privilege in circumstances where it is absolutely
essential. “Essential” circumstances exist where the accused
establishes the “innocence at stake” exception to informer privilege.
Such a case might arise, for example, where there is evidence suggesting that
the goods seized in execution of the warrant were planted. To establish that
the informer planted the goods or had information as to how they came to be
planted, the accused might properly seek disclosure of information that may
incidentally reveal the identity of the informer. Absent a basis for concluding
that disclosure of the information that may reveal the identity of the informer
is necessary to establish the innocence of the accused, the information remains
privileged and cannot be produced, whether on a hearing into the reasonableness
of the search or on the trial proper: R. v. Leipert, [1997] 1 S.C.R. 281.

The entitlement of
an accused person to production either from the Crown or third parties is a
constitutional right. Breach of this right entitles the accused person to a
remedy under s. 24(1) of the Charter. Remedies range from one or several
adjournments to a stay of proceedings. To require the accused to show that the
conduct of his or her defence was prejudiced would foredoom any application for
even the most modest remedy where the material has not been produced. It would
require the accused to show how the defence would be affected by the absence of
material which the accused has not seen. This Court has consistently taken the
position that the question of the degree of prejudice suffered by an accused is
not a consideration to be addressed in the context of determining whether a
substantive Charter right has been breached. The extent to which the Charter
violation caused prejudice to the accused falls to be considered only at the
remedy stage of a Charter analysis: R. v. Carosella, [1997] 1 S.C.R. 80.

The right to
disclosure is but one component of the right to make full answer and defence.
Although the right to disclosure may be violated, the right to make full answer
and defence may not be impaired as a result of that violation. Where a court is
persuaded that undisclosed information meets the Stinchcombe threshold,
an accused has met his burden to establish a violation of his Charter right to
disclosure. The appropriate remedy for such a violation is, at trial, an order
for production or an adjournment. Where non-disclosure is raised on an appeal
from a conviction, an accused must, as a threshold matter, establish a
violation of the right to disclosure. Further, the accused bears the additional
burden of demonstrating on a balance of probabilities that the right to make
full answer and defence was impaired as a result of the failure to disclose.
This burden is discharged where an accused demonstrates that there is a
reasonable possibility the non-disclosure affected the outcome at trial or the
overall fairness of the trial process. The reasonable possibility to be shown
under this test must not be entirely speculative. It must be based on
reasonably possible uses of the non-disclosed evidence or reasonably possible
avenues of investigation that were closed to the accused as a result of the
non-disclosure. In order to determine whether the right to make full answer and
defence was impaired, it is necessary to undertake a two-step analysis. First,
in order to assess the reliability of the result, the undisclosed information
must be examined to determine the impact it might have had on the decision to
convict. If at the first stage an appellate court is persuaded that there is a
reasonable possibility that, on its face, the undisclosed information affects
the reliability of the conviction, a new trial should be ordered. Even if the
undisclosed information does not itself affect the reliability of the result at
trial, the effect of the non-disclosure on the overall fairness of the trial
process must be considered at the second stage of analysis. This will be done
by assessing, on the basis of a reasonable possibility, the lines of inquiry
with witnesses or the opportunities to garner additional evidence that could
have been available to the defence if the relevant information had been
disclosed. In short, the reasonable possibility that the undisclosed
information impaired the right to make full answer and defence relates not only
to the content of the information itself, but to the realistic opportunities to
explore possible uses of the undisclosed information for purposes of
investigation and gathering evidence. In considering the overall fairness of
the trial process, defence counsel’s diligence in pursuing disclosure from the
Crown must be taken into account. Whether a new trial should be ordered on the
basis that the Crown’s non-disclosure rendered the trial process unfair
involves a process of weighing and balancing. If defence counsel knew or ought
to have known on the basis of other disclosures that the Crown through
inadvertence had failed to disclose information yet remained passive as a
result of a tactical decision or lack of due diligence it would be difficult to
accept a submission that the failure to disclose affected the fairness of the
trial: R. v. Dixon, [1998] 1 S.C.R. 244; R. v. Taillefer, [2003]
3 S.C.R. 307, 2003 SCC 70.

While the nature of
the Crown’s disclosure obligation and its rationale remain constant after
conviction, the resolution of disclosure disputes on appeal will require a somewhat
different analytical framework than that described in Stinchcombe. There are at
least two reasons for this different approach. A convicted accused is no longer
presumed innocent. In fact, the opposite is presumed. A convicted person has
also exhausted his or her right to make full answer and defence. An accused
does, however, have broad rights of appeal under the Criminal Code. These include not only legal
and factual challenges arising out of the trial record, but also the right to
adduce fresh evidence if the interests of justice so require. The Crown’s
disclosure obligation on appeal must recognize and give full value to an
accused’s broad rights of appeal and the rationale underlying those rights. It
must extend to any information in the possession of the Crown that there is a
reasonable possibility may assist the accused in the prosecution of his or her
appeal. In the present case, the applicant seeks disclosure in aid of a
proposed fresh evidence motion. To obtain production, the applicant must first
demonstrate a connection between the request for production and the fresh
evidence he proposes to adduce. The applicant must show that there is a
reasonable possibility that the material sought could assist on the motion to
adduce fresh evidence. By assist, I mean yield material that will be admissible
as fresh evidence, or assist the applicant in developing or obtaining material
that will be admissible as fresh evidence. The applicant must next demonstrate
that there is some reasonable possibility that the evidence to which the
production request is linked may be received as fresh evidence on appeal.
Unless the appellant can make both links, there is no reasonable possibility
that the material sought could assist in the prosecution of the appeal and consequently,
no reason for this court to require the Crown to disclose it: R. v. Trotta, [2004] O.J. No. 2439 (Ont. C.A.).

It is common ground
in this case that an accused against whom primary wiretap evidence obtained
under judicial authorization is to be tendered in legal proceedings is entitled
to contest its admissibility, inter alia, under the Criminal Code. Admissibility of primary
evidence under the Code may be contested at the preliminary inquiry, as
well as at trial. To facilitate the admissibility challenge, the accused is
entitled to disclosure of the affidavit filed in support of the application for
judicial authorization. The disclosure given, however, may require editing
based on considerations of public interest immunity. Summaries may be provided
of portions of the affidavit deleted upon such basis. Under R. v.
Stinchcombe, supra, disclosure is generally to be given prior to
election and plea, thereby informing the decision as to each. The apparent
impediment to disclosure of an edited version of the affidavit, at present, in
advance of an election of mode of trial, is the insistence in Garofoli,
[1990] 2 S.C.R. 1421, that editing be done by the trial judge. There is,
at present, no confirmed sighting of a trial judge, as there has been neither election
of mode of trial, nor, a fortiori, order to stand trial. However logical
and practical it may be to permit a provincial court judge sitting as a justice
at a preliminary inquiry to edit the disclosed supportive affidavit, since it
plays into the Code admissibility question the justice will be required
to determine, or to return to the former practice of having the judge who opens
the packet perform at least a preliminary editing function, subject to review
by the trial judge, it would not appear open to follow such course in
light of the express command of Garofoli. There would not appear any
perfect solution to the dilemma created by the disclosure commands of Stinchcombe,
the editing regime of Garofoli, and the undoubted right of the applicant
to contest the admissibility of primary evidence under the Code at a
preliminary inquiry. To deny disclosure on grounds of “jurisdiction”
as suggested by Crown counsel, however, would appear to be manifestly unjust.
Disclosure of the supportive affidavit should be given before the applicant is
required to elect the mode of trial or enter a plea, absent exigent
circumstances which are not present here. The mandate of Stinchcombe
will then be met. The disclosure, however, must not compromise any valid public
interest immunity considerations. Such considerations not only circumscribe the
extent of disclosure required under the principles of Stinchcombe, but
equally justify editing under Garofoli. Each is subject to review by the
trial judge. The practical solution in the present case lies in the
application of the preliminary prosecutorial editing procedure dictated by Garofoli.
Such a procedure ensures disclosure without compromise of legitimate public
interest immunity concerns. This edited form of disclosure will place the
applicant, as nearly as present circumstances permit, in the position that he
may well find himself at trial. What is ordered here will permit a Code
challenge at a preliminary inquiry and facilitate focused cross-examination
there to lay a basis for Charter challenge at trial. In an imperfect world, it
ensures an accused at least some measure of fundamental justice: R. v.
Aranda, (1992), 11 C.R. (4th) 339 (Ont. Gen. Div.).

The so-called
“right” to a preliminary hearing is not elevated to a constitutional
right under the Charter. The “right” to a preliminary hearing under
the Criminal Code may be displaced
by the Attorney General preferring an indictment. However, the preferring of a
direct indictment in combination with the failure of the Crown to make adequate
disclosure might result in an accused being unable to make full answer and
defence at his trial, thereby contravening s.7 of the Charter and enabling the
trial judge to fashion a remedy under s.24(1): Arviv v. R., (1985),
19 C.C.C. (3d) 395 (Ont. C.A.); Ertel v. R., (1987), 35 C.C.C.
(3d) 398 (Ont. C.A.); R. v. Ford, (1993), 108 Sask. R. 168 (Sask. Q.B.).

When disclosure is
demanded or requested, Crown counsel have a duty to make reasonable inquiries
of other Crown agencies or departments that could reasonably be considered to
be in possession of evidence. Counsel cannot be excused for any failure to make
reasonable inquiries when to the knowledge of the prosecutor or the police
there has been another Crown agency involved in the investigation. Relevancy
cannot be left to be determined by the uninitiated. If Crown counsel is denied
access to another agency’s file, then this should be disclosed to the defence
so that the defence may pursue whatever course is deemed to be in the best
interests of the accused. This also applies to cases where the accused is
unrepresented. Here, not only were representatives of the Ministry of Health
and Community Services in court from time to time, they participated in the
investigation with the police from the very beginning. In preparation for the
trial itself Crown counsel has a duty to the public to be familiar with all
aspects of the case, favourable and unfavourable, from all reasonable sources: R.
v. Arsenault, (1994), 93 C.C.C.(3d) 111 (N.B.C.A.).

This transmission of
evidence cannot be equated with the trial, can be considered preliminary only,
and cannot therefore be a part of the trial. The only obligation on the part of
the Crown is therefore to transmit, in good faith, to counsel for the accused
or to the accused himself, the information it possesses; its obligation does
not include transcription or translation. Consequently, given the provisions of
sections 530 and 530.1 of the Criminal Code, there was no reason to
require that the documents that might serve as evidence, written in a language
other than the official language in which documents were drafted, be provided
to counsel for the accused in the language of counsel’s choice or be translated
by the Crown. Moreover, Parliament intended to protect the accused when it
stipulated in paragraph 530.1 (g) that the documentary evidence shall be
presented in the language in which it was tendered. In fact, no proof was
adduced that the accused was prejudiced by the language in which it was
written. On the contrary, the court made sure that counsel for the accused
clearly informed his client so that the accused was able to defend himself
adequately. The court could have followed a different reasoning had the accused
not been represented by counsel, had he himself received the communication of
the evidence in a language that was foreign to him, and had he been unable to
know the evidence, so that it became clear that he could not have received a
fair trial: R. v. Breton (Yukon Territory C., July 9, 1995).

[10]
Pre-Charge and Appellate Delay

Section 11 of the
Charter limits its operation to the post-information period. Prior to the
charge, the rights of the accused are protected by general law and guaranteed
by ss. 7, 8, 9 and 10. Given the broad wording of s. 7 and the other Charter
provisions, it is not necessary to distort the words of s. 11(b) in order to
guard against a pre-charge delay: R. v. Kalanj, [1989] 1 S.C.R. 1594; R.
v. Potvin, [1993] 2 S.C.R. 880.

Sections 7 and 11(d)
protect, among other things, an individual’s right to a fair trial. The
fairness of a trial is not, however, automatically undermined by even a lengthy
pre-charge delay. Indeed, a delay may operate to the advantage of the accused,
since Crown witnesses may forget or disappear. The comments of Lamer J. in Mills,
supra, are apposite: “Pre-charge delay is relevant under ss. 7 and
11(d) because it is not the length of the delay which matters but rather
the effect of that delay upon the fairness of the trial”: R. v.
L.(W.K.), [1991] 1 S.C.R. 1091.

The criminal
appellant or respondent is not without a remedy when delay of appeal
proceedings affects the fairness of the trial. While s. 11(b) does not apply,
s. 7 may in appropriate circumstances afford a remedy. In R. v. L. (W.K.),
supra, this Court held that, in respect of pre-charge delay, if the
particular circumstances of the case indicated that the fairness of the trial
had been affected by the delay. s. 7 can be resorted to. This is simply the
application to delay of the Court’s power to remedy an abuse of process which
is enshrined in s. 7 as a principle of fundamental justice. The appropriate
forum for a remedy pursuant to s. 7 for appellate delay is the court in which
the delay occurred. That court is in the best position to assess the
consequences of delay. Moreover, this approach avoids the necessity of a
referral back of the issue to a trial court whenever a serious case of delay is
made out. In addition, it avoids the awkwardness inherent in a lower court’s
passing upon proceedings in a higher court which the latter must then review.
If a further appeal lies from the first appellate court, the issue of delay can
be reviewed in the second appellate court along with the consequences of additional
delay resulting from the second appeal. As with other issues in appeal, this
Court does not favour issues being raised for the first time in an appeal to
this Court: R. v. Potvin, [1993] 2 S.C.R. 880.

In this case the
question whether the non-availability of the complainant’s statements to the
police in 1980 and the inability to identify the officers to whom those
statements were made were so prejudicial to the accused as to justify the
granting of a stay on a pretrial motion was determined by the trial judge on an
agreed statement of facts. The trial judge ordered a stay notwithstanding the
position of Crown counsel that although the facts in the agreed statement were
accurately stated, they were not all the facts relevant to such a
determination, and that a decision made at that stage would be premature. The
showing of some prejudice is not a sufficient basis for a decision that an
accused person’s Charter rights under ss. 7 and 11(d) would be infringed if the
accused were required to stand trial. What must be demonstrated on a balance of
probabilities is that the missing evidence creates a prejudice of such
magnitude and importance that it can be fairly said to amount to a deprivation
of the opportunity to make full answer and defence. The measurement of the
extent of the prejudice in the circumstances of this case could not be done
without hearing all the relevant evidence, the nature of which would make it
clear whether the prejudice was real or minimal. The pretrial motion was
premature and the stay should not have been granted when it was: R. v. B.(D.J.),
(1993), 16 C.R.R. (2d) 381 (Ont. C.A.); R. v. Francois, (1993), 18
C.R.R. (2d) 187 (Ont. C.A.).

Absent any finding that delay in the institution of proceedings was for the ulterior purpose of depriving an accused of the opportunity of making full answer and defence, delay in itself, even delay resulting in the impairment of the ability to make full answer and defence, is not a basis for a stay of proceedings pursuant to s.7. However, where it is shown that executive action leading to the charge and its prosecution is offensive to the principles on which the administration of justice is conducted by the courts (such as where the executive initially elects not to prosecute and then, without any change in circumstances having occurred, lays charges some six years later), the court may prevent such unfairness by the control of its process: R. v. Young (1984), 13 C.C.C. (3d) 1 (Ont. C.A.).

It seems to be clear from cases such as Kalanj, supra, that there is no formula for determining the amount of delay which the law will not tolerate. It also seems clear from R. v. L. (W.K.), supra, that the lapse of time alone will seldom be a sufficient ground upon which to order a stay equivalent to an acquittal. Instead there must be other factors. It is necessary to keep in mind that a delay of the kind involved in this case does not necessarily support an inference that the complainant would have come forward sooner if his complaint were true. This phenomenon of delayed notice is now well recognized in sexual assault cases, although we must be careful to avoid replacing one form of invalid stereotypical thinking for another equally invalid presumption that the evidence of all complainants must be accepted. Here, no evidence has been lost, and it has not been suggested that the accused has been prejudiced, in a legal sense, by the delay which has ensued. It has not been shown by the accused, who carries the onus on this question, that he was deprived by pre or post-charge delay of the opportunity to make full answer and defence: R. v. Short (1991), 15 W.A.C. 306 (B.C.C.A.).

[11] Right to Competent Counsel / Right to Counsel at State’s Expense

(i) Right to Competent Counsel

The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984). The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. Miscarriages of justice may take many forms in this context. In some instances, counsel’s performance may have resulted in procedural unfairness. In others, the reliability of the trial’s result may have been compromised. In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow : R. v. G.D.B., [2000] 1 S.C.R. 520, 2000 SCC 22.

An accused who chooses to seek the assistance of legally trained counsel is entitled to assistance which reflects that expertise. An accused is also entitled to proceed without counsel. The accused may choose self-representation, or if the Crown has proceeded summarily, the accused may choose to be represented by an agent. If an accused chooses self-representation, he or she cannot be heard to complain that the conduct of the trial did not rise to the level of a competent counsel. We see no reason why the same conclusion would not follow when an accused chooses to be represented by an agent who is not a lawyer. Nor does the fact that the agent is paid create any presumption as to the agent’s competence. Just as where an accused chooses self-representation, an accused who chooses to be represented by an agent who is not a lawyer has decided against exercising the right to effective assistance of counsel, and cannot be heard to contend that the agent’s performance should be tested against the standard reserved to counsel trained in the law. In holding that an accused who chooses to be represented by an agent and not a lawyer has no constitutional right to competent representation, we do not suggest that the accused’s right to a fair trial is diminished. That right remains in full force and the absence of legally trained counsel puts an added obligation on the trial judge to protect that right. Nor do we suggest that an accused who is represented by an agent who is not a lawyer is foreclosed from raising the conduct of that agent on appeal in support of a submission that the conviction constitutes a miscarriage of justice. Any such submission cannot, however, be made on the basis that the miscarriage arises because the agent failed to meet the competent lawyer standard. Rather, the accused must demonstrate that the agent’s conduct, perhaps combined with other events, produced a miscarriage of justice: R. v. Romanowicz, (1999), 138 C.C.C. (3d) 225 (Ont. C.A.).

It is generally recognized that a lawyer representing more than one accused in a joint criminal trial is potentially in a position of conflict. In general, joint representation may lead the jury to link the co-accused together. In the United States, the general recognition of a potential conflict of interest is based on the Sixth Amendment right to the assistance of counsel, which has been interpreted to mean the effective assistance of counsel. In a case of joint representation of conflicting interests, defence counsel’s basic duty of undivided loyalty and effective assistance is jeopardized and his performance may be adversely affected. That is, he may refrain from doing certain things for one client by reason of his concern that his action might adversely affect his other client. Here, trial counsel should have recognized immediately that, as a result of the co-accused’s last-minute change of plea to not guilty, a position of conflict had arisen which would undermine the appellant’s right to a fair trial. Trial counsel’s effectiveness was seriously impaired, since the appellant was prevented from compelling the co-accused to testify, and trial counsel was unable to advise the co-accused whether or not to testify without potentially harming the interests of one of his two clients. The appellant’s right to effective assistance of counsel entitled him to the competent advice of counsel unburdened by a conflict of interest. Because of the difficulty of assessing the effect of the conflict of interest on the defence of the appellant, this Court is not prepared to apply the curative proviso of s.686(1)(b)(iii) of the Criminal Code. The appellant has satisfied the burden of showing that the conflict of interest had an adverse effect on the performance of defence counsel at trial. The United States courts have consistently refused to apply the “harmless error” rule to conflict of interest cases. The reasoning is that conflict of interest affecting the adequacy of representation by counsel is a denial of the constitutional right to the effective assistance of counsel, and that, therefore, it is unnecessary to demonstrate prejudice: R. v. Silvini, (1991), 9 C.R. (4th) 233 (Ont. C.A.).

The appellant in this child protection case argued that her right to effective legal representation was impaired because she was only allowed duty counsel. Although effective representation does not mean the best possible, presumably the state-funded counsel ordered by the Supreme Court in the New Brunswick v. G.(J.) case, whether through Legal Aid or otherwise, must be suitable and effective to achieve the aim of a fair trial. On the face of it, a reasonable Legal Aid scheme would seem to comply with this requirement. This presumption may be rebutted where an individual who is eligible for the benefits of legal aid can convince a court that no lawyer employed by Legal Aid can provide adequate representation: Winnipeg Child and Family Services v. A.(J.), (2003), 235 D.L.R.(4th) 292, 2003 MBCA 154.

(ii) Right to Counsel at State’s Expense

The right to a fair hearing will not always require an individual to be represented by counsel when a decision is made affecting that individual’s right to life, liberty or security of the person. In particular, a parent need not always be represented by counsel in order to ensure a fair custody hearing. The seriousness and complexity of a hearing and the capacities of the parent will vary from case to case. Whether it is necessary for the parent to be represented by counsel is directly proportional to the seriousness and complexity of the proceedings, and inversely proportional to the capacities of the parent. Although all custody hearings engage serious interests, the seriousness of the interests at stake varies according to the length of the proposed separation of parent from child. For instance, permanent guardianship applications are more serious than temporary custody applications. The complexity of the hearing can vary dramatically from case to case. Some hearings may be very short, involve relatively simple questions of fact and credibility, and have no expert reports. Others might take days and involve complicated evidentiary questions, troublesome points of law, and multiple experts. The parent’s capacities are also variable. Some parents may be well educated, familiar with the legal system, and possess above-average communication skills and the composure to advocate effectively in an emotional setting. At the other extreme, some parents may have little education and difficulty communicating, particularly in a court of law. I note that there are a number of appellate court cases in Canada which have found that legal representation of an accused may be necessary to ensure a fair trial, pursuant to ss. 7 and 11(d) of the Charter. These cases are noteworthy because the criteria employed by the courts to determine whether counsel was warranted included the seriousness of the interests at stake and the complexity of the proceedings. I therefore conclude that the potential restriction of the appellant’s right to security of the person would not have been in accordance with the principles of fundamental justice had the custody hearing proceeded with the appellant unrepresented by counsel. The potential s. 7 violation in this case would have been the result of the failure of the government of New Brunswick to provide the appellant with state-funded counsel under its Domestic Legal Aid program after initiating proceedings under the Family Services Act. There are only two possible remedies a judge can order under s. 24(1) to avoid a prospective s. 7 breach in
circumstances where the absence of counsel for one of the parties would result in an unfair hearing: an order that the government provide the unrepresented party with state-funded counsel, or a stay of proceedings: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46.

The right of an accused person to be free of unreasonable state or judicial interference in his or her choice of counsel does not impose a positive obligation on the state to provide funds for counsel of choice. There are two exceptions to this general proposition. First, in some unique situations it may be that an accused can establish that he or she can only obtain a fair trial if represented by a particular counsel. In those unusual circumstances, the court may be entitled to make an order to ensure that the accused is represented by that counsel. This was the case in R. v. Fisher, [1997] S.J. No. 530 (QL) (Q.B.), and the genesis of the so-called Fisher order. But in making the order, Milliken J. recognized that he was faced with a unique case, and he suggested that the circumstances that led him to make the order might not occur in Saskatchewan “in another thirty years”. Second, in unusual circumstances, the court may find that the accused simply cannot find competent counsel to represent him or her on conditions imposed by Legal Aid. One would expect those cases to be exceedingly rare. For example, if the accused was unable to retain local counsel, Legal Aid would inevitably grant authorization to retain out-of-town counsel. Courts in Ontario have, with few exceptions, rejected the proposition that enhanced rates above those authorized by Legal Aid are necessary to ensure that accused receive competent counsel. Here, the case is not unique and it is not of the same order of complexity as the Fisher case. It is an arson case expected to last seven days in which there may be up to thirty Crown witnesses, one of whom was a former accomplice. If this is the level of complexity that would justify a Fisher order, virtually every accused facing a jury trial could claim an entitlement to state-funded counsel of choice. That is simply not the law. As to the accused’s relationship with his counsel, it is not unusual for accused to have prior professional relationships with a lawyer. The fact that counsel had a prior relationship with the respondent and that the respondent had confidence in him similarly did not demonstrate an entitlement to state-funded counsel of choice: R. v. Peterman, [2004] O.J. No. 1758 (Ont. C.A.).

In this child protection case, the appellant mother cites R. v. McCallen, (1999), 43 O.R.(3d) 56 (C.A.), as authority that accused are entitled to state-funded counsel of choice under s. 10(b) of the Charter. However, the Court in that case noted that the right is not unlimited. It is subject to counsel who are competent to undertake the retainer and are willing to act. Here, Legal Aid has been willing to provide a certificate to the appellant’s counsel of choice, but he is unwilling to act at the tariff offered. It is only in the very exceptional case in which a particular lawyer is essential to ensure a fair trial, such as in R. v. Fisher, [1997] S.J. No. 530 (QL) (Q.B.), that a court might consider ordering a particular lawyer to act as counsel: Winnipeg Child and Family Services v. A.(J.), (2003), 235 D.L.R.(4th) 292, 2003 MBCA 154.

The purposes and interests which ss. 7, 10(b) and 11(d) are meant to protect when the issue is the scope and extent of the right to counsel lead irresistibly to the conclusion that a person charged with an offence that is serious and complex, when he cannot afford to retain counsel, is constitutionally entitled to have counsel provided to assist him at the expense of the state. However, those sections of the Charter do not separately or together support a constitutional right of an accused person to be assigned counsel of his choice by the Legal Aid Society: Panacui v. Legal Aid Society, (1988), 40 C.C.C. (3d) 459 (Alta.
Q.B.); R. v. Rockwood, (1989), 49 C.C.C. (3d) 129 (N.S.C.A.); Robinson
and Dolejs v. R., (1989), 51 C.C.C. (3d) 452 (Alta. C.A.); Munroe v. R., (1990), 57 C.C.C. (3d) 421 (N.S.S.C.); appeal dismissed, (1990), 59 C.C.C. (3d) 446 (N.S.C.A.); Mireau v. Canada, (1991), 96 Sask R. 197 (Sask. Q.B.).

The right to retain counsel, constitutionally secured by s. 10(b) of the Charter, and the right to have counsel provided at the expense of the state are not the same thing. However, in cases not falling within provincial legal aid plans, ss. 7 and 11(d), which guarantee an accused a fair trial in accordance with the principles of fundamental justice, require funded counsel to be provided if the accused wishes counsel, but cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial. A trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided. Where the trial judge exercises this power, either Legal Aid or the Crown will be required to fund counsel if the trial is to proceed: Rowbotham et al. v. R., (1988), 41 C.C.C. (3d) 1 (Ont. C.A.); R. v. McGibbon, (1988), 45 C.C.C. (3d) 334 (Ont. C.A.); R. v. Rockwood, (1989), 49 C.C.C. (3d) 129 (N.S.C.A.); R. v. Sechon, (1995), 104 C.C.C. (3d) 554 (Que. C.A.); R. v. Rain, (1998), 130 C.C.C. (3d) 167 (Alta. C.A.); leave
to appeal refused (S.C.C., April 1, 1999).

A general right to state funding by federal Ministers for representation by counsel does not arise under s. 7 where the impecunious person affected is subject to an inquiry by an adjudicator under the Immigration Act to determine whether, on the basis of allegations and evidence in support of them, the person is not admissible to Canada. The proceedings leading to deportation engage interests protected by s.7, but those interests and thus the appropriate protection under s. 7 may be less than in serious criminal proceedings. In the circumstances of this case, s. 7 does not raise a duty for the respondent to provide, in advance of an inquiry, assurance of funding for preparation by counsel to represent the applicant: A.B. v. Canada (Minister of Citizenship and Immigration) (1997), 142 F.T.R. 161 (F.C.T.D.).

[12] Access to Wiretap Packets

Prima facie misconduct
is not required to be shown by an accused who seeks access to the sealed packet relating to an application for a wire-tap authorization. The assertion that the admission of the evidence is challenged and that access is required in order to permit full answer and defence to be made is sufficient: Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Durette, [1994] 1
S.C.R. 469.

The power to edit the contents of the sealed packet clearly exists and derives from the supervisory and protecting power which a court possesses over its own records. In determining the procedure to be followed in editing the materials in the packet, regard must be had for the competing interests of law enforcement, and in particular the protection of the identity of informers and investigative techniques, on the one hand and the right of the accused to make full answer and defence on the other. The identity of informers is generally not relevant. When a trial judge is engaged in the editing process, he or she must consider the “innocence at stake” exception. The exception is more likely to apply where the informer is a witness to material facts. The determination in each case will require the balancing of the relevance of the identity of the informer to the accused’s case against the prejudice to the informer and to the public interest in law enforcement which disclosure would occasion. In deciding what to edit, the factors outlined in R. v. Parmar, (1987), 34 C.C.C. (3d) 260, commend themselves. This court has consistently protected the right to cross-examine. The concerns regarding protection of the identity of informers and prolongation of proceedings can be accommodated without such a drastic curtailment of the right. There is no right to cross-examine informants since they are not witnesses and cannot be identified unless the accused brings himself within the “innocence at stake” exception. Leave to cross-examine the affiant should be granted at the discretion of the trial judge, who may impose limitations on its scope, when he is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. The accused must establish a basis for the view that cross-examination will discredit the existence of one of the pre-conditions for the authorization: R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Durette, [1994] 1 S.C.R. 469.

The rule requiring that an accused automatically be given access to the sealed packet is based upon the fact that, as part of the right to make full answer and defence, the accused has the right to be given the opportunity to challenge the admissibility of evidence tendered by the Crown. In order to protect the public interest in law enforcement, and in particular the interest in protecting the identity of informers and the confidentiality of investigative techniques, a judge may edit a wiretap affidavit before providing it to the accused. The interests of law enforcement are adequately served if the judge considers the factors set out in R. v. Parmar, supra, and approved of in Garofoli, supra, before disclosing the contents of an affidavit to the accused. During the editing process, the judge must strike a balance between the competing interests of law enforcement on the one hand, and the right of the accused to make full answer and defence on the other. Editing is to be kept to a minimum. The present case provides a convenient opportunity to add that the need for editing should not be presumed. When determining whether the contents of wiretap affidavits should be disclosed to an accused, full disclosure should be the rule, subject only to certain exceptions based upon overriding public interests which may justify non-disclosure. The affidavits should only be edited to the extent necessary to protect those overriding public interests. Here, the record clearly shows that the trial judge edited the affidavits before him more extensively than was necessary to protect the public interest. Non-disclosure can only be justified on the basis that disclosure will prejudice the interests of informants, innocent persons or the law enforcement authorities and that such prejudice overbears the interests of the accused. Trial judges must be granted some discretion to determine what editing is required to ensure that the public interest is protected. However, that discretion does not include the power to edit material whose continued confidentiality clearly is not justified by any of the public interest concerns identified in Parmar. By showing that the trial judge excised a substantial amount of material whose continued confidentiality could not be justified, the appellants have established, prima facie, that their ability to make full answer and defence was prejudiced in that they were denied the opportunity to conduct a full inquiry into the validity of the seven wiretap authorizations challenged before the trial judge. The appellants should not be required to demonstrate the specific use to which they might put information which they have not even seen. The respondent has not been able to satisfy me that no prejudice occurred and an appellate court which does not have the benefit of access to counsel’s brief cannot be expected to speculate in these circumstances. The respondent takes the position that there is no need to consider the excised portions of the affidavit if the authorization can be supported exclusively on the basis of the affidavit as edited. However, this submission ignores the fact that the material contained in the excised material may be used to impugn the contents of the portions of the affidavit which have been disclosed. In the absence of overriding policy concerns which justified confidentiality, the appellants were entitled to have the opportunity to use the deleted material in this fashion: R. v. Durette, [1994] 1 S.C.R.
469.

The logic of R. v. Dersch is simply inapplicable to the case at bar. In Dersch, this Court held that judicial discretion to open the sealed packet under the predecessor of s. 187(1)(a)(ii) of the Criminal Code must be automatically exercised in favour of an accused’s right to disclosure as part of his or her right to full answer and defence under s. 7. It is thus apparent
that a non-accused surveillance target such as the appellant cannot rely on Dersch to support a claim of automatic access to the packet under the Charter. The appellant faces no imminent criminal prosecution. He has no basis for seeking disclosure to effectuate his constitutional right to full answer and defence, nor does he have any need to challenge the reception of potentially inadmissible evidence. Indeed, the majority in Dersch acknowledged that different considerations ought to govern the exercise of judicial discretion under s. 187(1)(a)(ii) where a non-accused target or an interested third party applies for access to the packet. The existing judicial interpretation of s.187(1)(a)(ii) strikes an appropriate balance between the individual’s interest in contesting the validity of an authorized interception of communications and the public’s interest in the confidentiality of law enforcement techniques and police informers. Under Part VI, where an individual receives notice of an interception under s. 196(1), a judge will have already examined the original wiretap application and supporting affidavits and have concluded that they demonstrate reasonable and probable grounds for a search. In light of the existence of prior authorization in addition to the other procedural and substantive protections contained within Part VI, I believe that Canadian courts have adequately balanced the relevant interests in concluding that the statutory discretion to open the packet should normally only be exercised in favour of a non-accused target upon some evidence that the initial authorization was obtained in an unlawful manner: Michaud v. Quebec (Attorney General), [1996] 3 S.C.R. 3.

It is common ground in this case that an accused against whom primary wiretap evidence obtained under judicial authorization is to be tendered in legal proceedings is entitled to contest its admissibility, inter alia, under the Criminal Code. Admissibility of primary evidence under the Code may be contested at the preliminary inquiry, as well as at trial. To facilitate the admissibility challenge, the accused is entitled to disclosure of the affidavit filed in support of the application for judicial authorization. The disclosure given, however, may require editing based on considerations of public interest immunity. Summaries may be provided of portions of the affidavit deleted upon such basis. Under R. v. Stinchcombe, supra, disclosure is generally to be given prior to election and plea, thereby informing the decision as to each. The apparent impediment to disclosure of an edited version of the affidavit, at present, in advance of an election of mode of trial, is the insistence in Garofoli, [1990] 2 S.C.R. 1421, that editing be done by the trial judge. There is, at present, no confirmed sighting of a trial judge, as there has been neither election of mode of trial, nor, a fortiori, order to stand trial. However logical and practical it may be to permit a provincial court judge sitting as a justice at a preliminary inquiry to edit the disclosed supportive affidavit, since it plays into the Code admissibility question the justice will be required to determine, or to return to the former practice of having the judge who opens the packet perform at least a preliminary editing function, subject to review by the trial judge, it would not appear open to follow such course in light of the express command of Garofoli. There would not appear any perfect solution to the dilemma created by the disclosure commands of Stinchcombe, the editing regime of Garofoli, and the undoubted right of the applicant to contest the admissibility of primary evidence under the Code at a preliminary inquiry. To deny disclosure on grounds of “jurisdiction” as suggested by Crown counsel, however, would appear to be manifestly unjust. Disclosure of the supportive affidavit should be given before the applicant is required to elect the mode of trial or enter a plea, absent exigent circumstances which are not present here. The mandate of Stinchcombe will then be met. The disclosure, however, must not compromise any valid public interest immunity considerations. Such considerations not only circumscribe the extent of disclosure required under the principles of Stinchcombe, but equally justify editing under Garofoli. Each is subject to review by the trial judge. The practical solution in the present case lies in the application of the preliminary prosecutorial editing procedure dictated by Garofoli. Such a procedure ensures disclosure without compromise of legitimate public interest immunity concerns. This edited form of disclosure will place the applicant, as nearly as present circumstances permit, in the position that he may well find himself at trial. What is ordered here will permit a Code challenge at a preliminary inquiry and facilitate focused cross-examination there to lay a basis for Charter challenge at trial. In an imperfect world, it ensures an accused at least some measure of fundamental justice: R. v. Aranda, (1992), 11 C.R. (4th) 339 (Ont. Gen. Div.).

[13] Right to Remain Silent / Self-Incrimination

Beginning in S. (R.J.), and continuing in Branch, Phillips, and Jarvis, the more recent jurisprudence of our Court on self-incrimination developed such that three procedural safeguards emerged: use immunity, derivative use immunity, and constitutional exemption. Use immunity serves to protect the individual from having the compelled incriminating testimony used directly against him or her in a subsequent proceeding. The derivative use protection insulates the individual from having the compelled incriminating testimony used to obtain other evidence, unless that evidence is discoverable through alternative means. The constitutional exemption provides a form of complete immunity from testifying where proceedings are undertaken or predominately used to obtain evidence for the prosecution of the witness. Together these necessary safeguards provide the parameters within which self-incriminating testimony may be obtained: Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42.

The right to silence conferred by s. 7 is rooted in two common law concepts. The first is the confessions rule, which makes a confession which the authorities improperly obtain from a detained person inadmissible in evidence. The second is the privilege against self-incrimination which precludes a person from being required to testify against himself at trial. While the exact scope of the confessions rule has been the subject of debate, a common theme can be said to unite these two quite separate rules – the idea that a person in the power of the state in the course of the criminal process has the right to choose whether to speak to the police or remain silent. The scope of the right must extend to exclude tricks which would effectively deprive the suspect of this choice. To permit the authorities to trick the suspect into making a confession to them after he or she has exercised the right of conferring with counsel and declined to make a statement, is to permit the authorities to do indirectly what the Charter does not permit them to do directly. This cannot be in accordance with the purpose of the Charter. However, there is nothing in the rules underpinning the s. 7 right to silence or other provisions of the Charter that suggests that the scope of the right to silence should be absolute, capable of being discharged only by waiver. Rather, the approach which should be adopted should retain the objective approach to confessions which has always prevailed in our law and should permit the rule to be subject to the following limits. First, there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel. Presumably, counsel will inform the accused of the right to remain silent. If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Second, it applies only after detention. Undercover operations prior to detention do not raise the same considerations. Nor does the Charter extend the right to counsel to pre-detention investigations. Third, the right to silence predicated on the suspect’s right to choose freely whether to speak to the police or to remain silent does not affect voluntary statements made to fellow cellmates. The violation of the right occurs only when the Crown acts to subvert the suspect’s constitutional right to choose not to make a statement to the authorities. This would be the case regardless of whether the agent used to subvert the accused’s right was a cellmate, acting at the time as a police informant, or an undercover police officer. Fourth, a distinction must be made between the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect’s choice to remain silent. In the absence of eliciting behaviour on the part of the police, there is no violation of the accused’s right to choose whether or not to speak to the police. If the suspect speaks, it is by his or her own choice, and he or she must be taken to have accepted the risk that the recipient may inform the police: R. v. Hebert, [1990] 2 S.C.R. 151.

In every case where the right to silence is raised, the threshold question will be: was the person who allegedly subverted the right to silence an agent of the state? In answering this question one should remember that the purpose of the right to silence is to limit the use of the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se. Accordingly, if the person to whom the impugned remarks is made is not an agent of the state, there will be no violation of the right to silence. In determining whether or not the informer is a state agent, it is appropriate to focus on the effect of the relationship between the informer and the authorities on the particular exchange or contact with the accused. A relationship between the informer and the state is relevant for the purposes of s. 7 only if it affects the circumstances surrounding the making of the impugned statement. A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects the exchange between the informer and the accused, will not make the informer a state agent for the purposes of the exchange in question. Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. This Court would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents? Even if the evidence in question was acquired by an agent of the state, it will only have been acquired in violation of s. 7 if the manner in which it was acquired infringed the suspect’s right to choose to remain silent. In general, there will be no violation of the suspect’s right to silence if the suspect volunteers the information, knowing he or she is talking to an agent of the state. As McLachlin J. expressed it in Hebert, supra, the state agent must “actively elicit” the information or statement. It is difficult to give a short and precise meaning of elicitation but rather one should look to a series of factors to decide the issue. These factors test the relationship between the state agent and the accused so as to answer this question: considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused? The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk? In considering whether the statement in question was elicited, evidence of the instructions given to the state agent for the conduct of the conversation may be important. Evidence that the state agent was instructed not to elicit information will not end the inquiry. The authorities may not take the benefit of the actions of their agent which exceed his or her instructions: R. v. Broyles , [1991] 3 S.C.R. 595.

The breadth with which McLachlin J. in Hebert defines the right to silence is inconsistent with the proposition that an atmosphere of oppression is required for its violation. At the same time, Hebert carefully distinguishes its formulation of the right to silence from that which assumes an “absolute right to silence” in the accused, capable of being discharged only by waiver. Hebert does not rule out the use of undercover police officers. Its concern is not with subterfuge per se, but with subterfuge that, in actively eliciting information, violates the accused’s right to silence by depriving her of her choice whether to speak to the police. Precisely because the detainee retains her freedom in that respect, not all of her speech can be immediately deemed involuntary merely by virtue of her being detained. Hebert expressly allows for situations where, though speaking to an undercover officer, the detainee’s speech is voluntary, in the sense that she must be taken to have freely accepted the risk of her own actions. In this case, the Crown argued that the Hebert doctrine applies only where the accused has made a declaration that she does not wish to speak to the authorities. We disagree. The Crown’s submission confuses the facts in Hebert with the fundamental principle formulated in that case: that the accused in Hebert happened to have declared that he did not wish to speak to the authorities does not mean that an assertion of the right to silence on the part of the accused is a condition precedent to the application of the Hebert doctrine. In following the authority of Hebert and Broyles, we find nothing in the facts of this appeal to support the proposition that the exchange between the appellant and the undercover officer was the functional equivalent of an interrogation. It is of no consequence that the police officer was engaged in a subterfuge, permitted himself to be misidentified, or lied, so long as the responses by the appellant were not actively elicited or the result of interrogation. The two sets of factors outlined in Broyles pertain to the nature of the exchange and the nature of the relationship between the state agent and the accused. It is worth recalling that these factors are neither exhaustive nor dispositive. They are rather guidelines provided to test the relationship between the state agent and the accused so as to determine whether there was a causal link between the conduct of the state agent and the making of the statement by the accused: R. v. Liew, [1999] 3 S.C.R. 227.

There is in Canada a principle against self-incrimination which is part of fundamental justice. The principle, however, is not absolute and may reflect different rules in different contexts. In the present case, a person (“M”) separately charged with the same offence as the accused was properly compellable as a witness at the accused’s trial. Fundamental justice is satisfied because neither M’s testimony, nor a limited class of evidence derived from his testimony, can later be used to incriminate him in other proceedings (save for proceedings in respect of perjury or for the giving of contradictory evidence). The similarity between the structure of ss. 11(c) and 13 of the Charter, and the statutory approach apparent in s. 5 of the Canada Evidence Act, demonstrate an obvious attempt to enact in constitutional form the same structural protection against self-incrimination for witnesses which existed historically. The protection envisioned involves a general rule of witness compellability, coupled with an evidentiary immunity. To contend that s. 7 of the Charter demands a testimonial privilege for all witnesses is to suggest that the framers of our Constitution misunderstood the nature of s. 5 of the Canada Evidence Act and forgot to include a provision in the Charter comparable to the Fifth Amendment of the American Constitution. Such a proposition is unacceptable. The Charter’s structure, however, cannot be invoked to condone all types of inquisition and one must focus on the purpose, or character, of proceedings at which testimony is sought to be compelled as a way to confine the reach of a general compellability rule. An objection must be lodged against proceedings which are justified by a self-incriminatory purpose. Here, although the accused’s trial might be considered an inquiry in relation to M as witness, the inquiry is of the sort permitted by our law. The truth-seeking goal operates to limit effectively the scope of the proceedings in terms of the “inquiry effect”. The laws of relevancy would preclude the random examination of individuals within a criminal trial. While in R. v. Hebert, supra, the recognition of a residual role for s. 7 gave effect to the Charter as a coherent system, to use s. 7 as the repository for an absolute right to silence or for the common-law witness privilege would do violence to that system since it would become difficult to account for the existence of s. 13 of the Charter. Section 13, however, does not exclusively define the scope of the available evidentiary immunity. The principle against self-incrimination also finds recognition under s. 24(2) of the Charter and a review of the principles developed under that section discloses a need for a partial derivative-use immunity under s. 7 of the Charter. Derivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness ought generally to be excluded under s. 7 in the interests of trial fairness. Such evidence, although not created by the accused and thus not self-incriminatory by definition, is self-incriminatory nonetheless because the evidence could not otherwise have become part of the Crown’s case. To this extent, the witness must be protected against assisting the Crown in creating a case to meet. The test for exclusion of derivative evidence involves the question whether the evidence could have been obtained but for the witness’s testimony and requires an inquiry into logical probabilities, not mere possibilities. The important consideration is whether the evidence, practically speaking, could have been located. Logic must be applied to the facts of each case, not to the mere fact of independent existence. There should be no automatic rule of exclusion in respect of any derivative evidence. Its exclusion ought to be governed by the trial judge’s discretion. The exercise of the trial judge’s discretion will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission. The burden is on the accused to demonstrate that the proposed evidence is derivative evidence deserving of a limited immunity protection: R. v. S. (R.J.), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3.

The British Columbia Securities Commission commenced an investigation into a company following a report by the company’s auditors disclosing questionable expenditures. The appellants, two of the officers of the company, were served with summonses issued pursuant to s. 128(1) of the Securities Act compelling their attendance for examination under oath and requiring them to produce all information and records in their possession relating to the company. The Act aims to protect the public from unscrupulous trading practices which may result in investors being defrauded. An inquiry of this kind legitimately compels testimony as the Act is concerned with the furtherance of a goal which is of substantial public importance, namely, obtaining evidence to regulate the securities industry. The inquiry is of the type permitted by our law as it serves an obvious social utility. Hence, the predominant purpose of the inquiry is to obtain the relevant evidence for the purpose of the instant proceedings, and not to incriminate the appellants. The proposed testimony thus falls to be governed by the general rule applicable under the Charter, pursuant to which a witness is compelled to testify, yet receives evidentiary immunity in return: S. (R.J.), supra. The appellants are also entitled to claim the protection of subsequent derivative – use immunity. This is a protection that is afforded to witnesses notwithstanding that the source of their evidence may derive from corporate activity. Documentary compulsion may also entail jeopardy in so far as it engages the appellants’ liberty interest. We do not believe that a right against self-incrimination can be applied to artificial entities in any meaningful way. It is the self-conscriptive effect of compulsion which the Charter guards against. The appellants, as representatives of the corporation, may receive the benefit of immunity protection in so far as they are personally implicated by their own evidence. At the stage of compellability, like the oral testimony, the documents are compellable subject to a possible claim against their subsequent use under the “but for” test. That test is not applicable to determining their compellability. Moreover, the documents are not sought in a proceeding against the witness. The documents are properly compellable unless they are excluded on the basis of the principles applicable to testimonial compulsion. The rationale both at common law and under s. 7 for these principles is that in certain circumstances compellability would impinge on the right to silence. This right, however, attaches to communications that are brought into existence by the exercise of compulsion by the state and not to documents that contain communications made before such compulsion and independently thereof. If, as in this case, the person subpoenaed is compelled to testify, then all communications including those arising from the production of documents will be compelled. If not compelled, the communications arising from production of documents would also not be admissible. The communicative aspects of the production of documents may, however, be of significance at the derivative evidence stage at which the witness seeks to exclude all evidence which would not have been obtained but for the compelled testimony: British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3.

This case raises the issue of whether statutorily required fishing logs and hail reports, stating the size and location of a catch, may be used as evidence in the regulatory prosecution of fishers for overfishing under the Fisheries Act. The appellant effectively asks this Court to endorse a broad, abstract principle against self-incrimination as a principle of fundamental justice under s. 7, which would prevent the use of information in all contexts in which it is statutorily compelled. Nowhere in the case law, however, is there support for such a broad, abstract approach to the issue of self-incrimination. The issue in this case has never been squarely raised before this Court. Our task is to determine what principles of fundamental justice require in the context of this appeal, which involves a self-reporting requirement in the regulatory sphere. In Re B.C. Motor Vehicle Act, Lamer J. indicated that the principles of fundamental justice “are to be found in the basic tenets of our legal system”. To determine the content of these “basic tenets” in any given circumstance, we must have regard to “the applicable principles and policies that have animated legislative and judicial practice in the field”. It is important to remember that the legislative and judicial “principles and policies” that have so far defined the protections granted against self-incrimination have, as is true in other areas, sought to achieve a contextual balance between the interests of the individual and those of society. This balancing is crucial in determining whether or not a particular law, or in the present case state action, is inconsistent with the principles of fundamental justice. This is all the more apparent in the instant case, where the appellant challenges a regulatory procedure — the use of hail reports and fishing logs — designed (and employed) in the public interest. To suggest that s. 7 of the Charter protects individuals who voluntary participate in this fishery from being “conscripted” against themselves, by having information used against them that they were knowingly required to provide as a condition of obtaining their fishing licences, would in my view be to overshoot the purposes of the Charter. The right against self-incrimination has never yet been extended that far; nor should it be. The Charter was not meant to tie the hands of the regulatory state. The importance of a contextual analysis in considering the principle against self-incrimination has been underlined by the Chief Justice in R. v. Jones, [1994] 2 S.C.R. 229. He observed that this principle is “a general organizing principle of criminal law from which particular rules can be derived (for example, rules about non-compellability of the accused and admissibility of confessions)”. The rules that flow from the application of this “general organizing principle” will vary with the circumstances. It is therefore important to focus on these circumstances each time a new application of the principle against self-incrimination is considered. There are several reasons why the general principle against self-incrimination, as applied in the regulatory context of the present case, does not require the appellant to be granted immunity against the use by the Crown of his statutorily compelled hail report and fishing logs. First, the information provided in this case was not provided in a proceeding in which the individual and the state are adversaries. Instead, it was provided in response to a reasonable regulatory requirement relating to fishery management. Second, the coercion imposed on the appellant is at best indirect, for it arose only after he had made a conscious choice to participate in a regulated area, with its attendant obligations. This case would seem to present us with a paradigmatic example of a licensing scheme, in that the appellant literally cannot participate in the commercial fishery without a licence. In accepting his licence, he must accept the terms and conditions associated with it, which include the completion of hail reports and fishing logs, and the prosecution of those who overfish. To the extent that the appellant believes himself to be compelled “against his will” to produce hail reports and fishing logs, lest they one day be used against him in a prosecution for overfishing, he is free to resign from the commercial fishery, and thereby to be released from this obligation: R. v. Fitzpatrick, [1995] 4 S.C.R. 154.

In the present appeal, the Crown has argued that it would not violate the principle against self-incrimination to permit the respondent’s three statements to police under the Motor Vehicle Act to be used against her in a criminal trial. The Crown relies, in particular, upon the decision of this Court in Fitzpatrick. Several of the self-incrimination concerns which were absent in Fitzpatrick are acutely present here. A key factor in the Court’s reasoning in Fitzpatrick was that the accused and the state were not in an adversarial relationship at the specific time that the self-incriminatory statements were made. The situation is very different under the Motor Vehicle Act. The provincial decision to vest the responsibility for taking accident reports in the police has the effect of transforming what might otherwise be a partnership relationship into one that is potentially adversarial. Very often, the police officer who is receiving the accident report is simultaneously investigating a possible crime, in relation to which the driver is a suspect. At the same time that the officer is required by s. 61(4) of the Motor Vehicle Act to obtain information about the accident from the driver, the officer may equally be required or inclined to inform the driver of possible criminal charges and of the driver’s legal rights under the Charter, including the right to remain silent. The result is, quite unlike the situation in Fitzpatrick, a context of pronounced psychological and emotional pressure. The spontaneous utterances of a driver, occurring very shortly after an accident, are exactly the type of communication that the principle against self-incrimination is designed to protect. They are a personal narrative of events, emotions, and decision that are extremely revealing of the declarant’s personality, opinions, thoughts, and state of mind. The dignity of the declarant is clearly affected by the use of this narrative to incriminate: R. v. White, [1999] 2
S.C.R. 417.

Considerations of privacy (which generally form the core of the s. 8 analysis) cannot exhaust the analysis where the principle against self-incrimination is at issue. It is true that where a person is forced to provide evidence contrary to the principle against self-incrimination, he or she is revealing information, thus engaging privacy interests. However, more fundamentally, that evidence is given so that it may be used in a case against him or her. Thus, as this Court recognized in S. (R.J.), supra, the principle against self-incrimination rests on the fundamental notion that the Crown has the burden of establishing a “case to meet” and must do so without the compelled participation of the accused. The question, then, is whether the DNA warrant provisions at issue in this case impermissibly violate the principle against self-incrimination, thus rendering any search or seizure performed under them unreasonable, contrary to s. 8. In my view, a consideration of the principle’s underlying rationales indicates that they do not. First, unlike cases involving testimonial compulsion, there is no concern with unreliability. On the contrary, one of the benefits of DNA evidence is its high degree of reliability. The second rationale – protection against the abuse of power by the state – requires a somewhat deeper analysis. As a majority of this Court indicated in White, supra, the degree to which the principle is engaged will depend in part on the extent to which coercion was used by the state in obtaining the statements; the extent to which the relationship between the accused and the state was adversarial at the time the conscriptive evidence was obtained; and the presence or absence of an increased risk of abuses of power by the state as a result of the compulsion. R. v. S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60.

In giving expression to the principle against self-incrimination, s. 7 does not envelop an abstract
and absolute rule that would prevent the use of information in all contexts in which it is statutorily compelled. A court must begin “on the ground”, with a concrete and contextual analysis of all the circumstances, in order to determine whether or not the principle against self-incrimination is actually engaged. This analysis necessarily involves a balancing of principles. One must, in assessing the limits on compellability demanded by the principle against self-incrimination, consider the opposing principle of fundamental justice suggesting that relevant evidence should be available to the trier of fact in a search for truth. These competing interests will often be brought to the foreground in regulatory contexts, where the procedures being challenged have generally been designed (and are employed) as part of an administrative scheme in the public interest: R. v. Jarvis, [2002] 3 S.C.R. 757, 2002 SCC 73.

The right to silence has now been recognized as a basic tenet of our legal system. It follows that an accused person has the right to remain silent at the investigation stage as well as at the trial. It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer’s question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt. Accordingly, unless the Crown can establish a real relevance and a proper basis for their admission, neither the questions by the investigating officers nor evidence as to the ensuing silence of the accused should be admitted: R. v. Chambers, [1990] 2 S.C.R. 1293.

While it is clear that the accused is neither a competent nor a compellable witness for the Crown, it is a separate question whether the silence of the accused at trial may be used against him in reaching a verdict. Specifically, if the trier of fact is otherwise not convinced of guilt beyond a reasonable doubt, may the silence of the accused at trial be treated as a distinct piece of evidence which the trier of fact may use to become convinced of guilt beyond a reasonable doubt? In my view R. v. Chambers< i> assists in analyzing the proper use by the trier of fact of the accused’s silence at trial. Cory J. indicated that it would severely undercut the pre-trial right to silence if pre-trial silence could be used against the accused. Similarly, in the present context, it would severely undercut the right to silence at trial, which is found in ss. 7 and 11(c) of the Charter, if the silence could be used against the accused to convince the trier of fact of guilt. If the case against the accused does not otherwise prove guilt beyond a reasonable doubt, to permit the trier of fact to reach a guilty verdict on the basis of the failure to testify would significantly undermine the right not to testify. As Cory J. stated in Chambers, it would be a “snare and a delusion” to grant the accused a right to remain silent at trial yet then proceed to use the silence to find him or her guilty. Just as a person’s words should not be conscripted and used against him or her by the state, it is equally inimical to the dignity of the accused to use his or her silence to assist in grounding a belief in guilt beyond a reasonable doubt. To use silence in this manner is to treat it as communicative evidence of guilt. Some reference to the silence of the accused by the trier of fact may not offend the Charter principles discussed above: where in a trial by judge alone the trial judge is convinced of the guilt of the accused beyond a reasonable doubt, the silence of the accused may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt. If the Crown has proved the case beyond a reasonable doubt, the accused need not testify, but if he doesn’t, the Crown’s case prevails and the accused will be convicted. It is only in this sense that the accused “need respond” once the Crown has proved its case beyond a reasonable doubt. Another permissible reference to the silence of the accused was alluded to by the Court of Appeal in this case. In its view, such a reference is permitted by a judge trying a case alone to indicate that he need not speculate about possible defences that might have been offered by the accused had he or she testified: R. v. Noble, [1997] 1 S.C.R. 874.