The redistributive potential of section 7 of the Charter: incorporating socio-economic context in criminal law and in the adjudication of rights.

• Author: Sylvestre, Marie-Eve

This article contrasts two series of arguments put forward by litigators for including social and economic context in the adjudication of rights protected by section 7 of the Canadian Charter of Rights and Freedoms, in order to assess the impact of 25 years of Charter litigation on the rights of the poor in the wake of the Re BC Motor Vehicle Act, [1985] 2 SCR 486. The first series of arguments focuses on the inclusion of poverty and social disadvantage in the definition of principles of fundamental justice relevant to the determination of criminal responsibility and in sentencing. The second series of arguments articulates a broader conception of the right to life, liberty and security of the person. In light of the mitigated results obtained for the pour in both cases, this article disclasses whether the problem lies in the constitutional nature of Charter litigation itself or in the ideological nature of social and economic arguments.

Cet article met en opposition deux series d'arguments presentes par des plaideurs en vue d'integrer le contexte social et economique a l'adjudication de droits proteges par l'article 7 de la Charte canadienne des droits et libertes et ce, en vue d'evaluer l'incidence de 25 annees de litiges relatifs a la Charte a propos des droits des pauvres dans la foulee de l'arret Renvoi sur la Motor Vehicle Act (C-B), [1985] 2 RCS 486. La premiere serie d'arguments met l'accent sur rinclusion de la pauvrete et la condition sociale i la definition des principes de justice fondamentale pertinents aux fins de determiner la responsabilite penale et la peine subsequente a imposer. Dans la seconde serie d'arguments, on formule une conception elargie du droit i la vie, a la liberte et a la securite de la personne. A la lumiere des resultats mitiges obtenus en faveur des pauvres dans les deux cas, cet article s'interroge a savoir si le probleme reside dans la nature constitutionnelle des litiges portant sur la Charte ou dans la nature ideologique des arguments sociaux et economiques.

Table of Contents I. INTRODUCTION II. SOCIAL CONTEXT AND PRINCIPLES OF FUNDAMENTAL JUSTICE A. Mens red B. Defences C. Sentencing III. SOCIAL CONTEXT AND RIGHT TO LIFE, LIBERTY AND SECURITY OF THE PERSON IV. CONCLUSION I. INTRODUCTION

Since the adoption of the Canadian Charter of Rights and Freedoms,' criminal lawyers, scholars and social activists have attempted several strategies for including much-needed social and economic context in the adjudication of rights. While we often hear about lawyers' and scholars' efforts to achieve redistribution in the context of section 15 of the Charter, we sometimes forget that section 7 has also held--and under certain circumstances may arguably hold--great promise for incorporating social context and for ensuring the rights of poor people.

In this article, I will discuss the redistributive potential of section 7 by examining two series of strategies that have been used." Part II examines the first series of strategies. These strategies asserted that relevant social and economic factors, including poverty or other social disadvantage, should be considered in assessing an offender's culpability and in sentencing decisions because it affects his or her ability to choose. These strategies were primarily used during the first ten years of Charter optimism, as the terms "principles of fundamental justice" began to be defined. Such strategies encountered very limited success and, in some cases, have led to significant regression when compared to the pre-Charter context. Yet, interestingly, some small gains were made outside the ambit of the Charter, particularly in the context of sentencing decisions.

In Part III, the second series of strategies are examined. These strategies were those used in Gosselin v Quebec (Attorney General) (2) and in more recent lower court cases such as Victoria (City of) v Adams (3) and Bedford v Canada (Attorney General), (4) in which lawyers have put forward a broader conception of the right to life, liberty and security of the person, in an attempt to generate redistributive outcomes. While this line of argument was rejected by a majority of the Supreme Court of Canada in Gosselin, it has led to victories in several lower court cases. Such gains, however, were the result of a compromise on the part of lawyers who chose to argue that section 7 protected individuals against state interference to their right to life, liberty and security of the person, rather than promoting a positive conception of these rights, which could potentially create obligations on the state. In the concluding section, I discuss the minimal results obtained for the poor and ask whether the problem with the adjudication of social rights lies in the constitutional nature of Charter litigation itself or in the ideological nature of social and economic considerations.

2. SOCIAL CONTEXT AND THE PRINCIPLES OF FUNDAMENTAL JUSTICE.

   The adoption of section 7 of the Charter, which provides for the right not to be deprived of one's life, liberty and security, except in accordance with the principles of fundamental justice, (5) held great promise for substantive criminal law. Lawyers have been quick to argue that the principles of fundamental justice should include principles such as mens rea, moral blameworthiness and proportionality of punishment in the hope that subjective considerations could be introduced in the assessment of culpability (in mens rea and in defences), or in sentencing.

   1. Mens rea

      The Supreme Court of Canada indicated the potential of section 7 in Re BC Motor Vehicle Act, (6) when it raised the concept of mens rea to the level of a constitutional imperative. Justice Lamer (as he then was) stated that a minimum standard of fault was required whenever a liberty interest was threatened and declared that the combination of imprisonment and absolute liability constituted a violation of section 7. (7) At the time, everything seemed possible--including a move towards considering relevant social and economic context related to race, gender and class in assessing an offender's moral culpability.

      Enthusiasm was short-lived, however, when Justice Lamer suggested only one year after the Court struck down the Criminal Code (8) provisions on constructive murder in R v Martineau, (9) that "the Constitution does not always guarantee the 'ideal,'" (10) but, rather, imposed minimum standards of moral fault. Moreover, what appeared to be a lower limit or a minimum threshold ended up becoming a ceiling on the mens rea required for several criminal offences. With the Court's decision in R v Creighton and its companion cases, (11) many scholars realized there had been important drawbacks from the pre-Charter context, (12) First, the terminology had changed. Whereas in R v Sault Ste Marie (13) the Court spoke in terms of the presence or absence of mens rea, in Creighton the Court drew a distinction between "objective" and "subjective" mens rea. (14) This semantic shift was not trivial. Even more importantly, the common law tradition of adopting a subjective approach to mens rea for criminal offences (15) came to an abrupt end. Justice McLachlin (as she then was), rallying the majority, (16) stated that section 7 did not require subjective standards of fault for all criminal offences and that absolute symmetry between the mens rea and the prohibited consequences was not a principle of fundamental justice. (17) Instead, a low-level objective fault requirement was found constitutionally sufficient for a broad range of crimes, (18) other than those falling within the extremely limited group of offences for which subjective awareness was deemed necessary to reflect social stigma and proportional punishment. (19) Further weakening the most basic principles of criminal law, the Court held that not only was it acceptable to convict someone on the mere basis of negligence, but that the assessment of the offender's capacity to comply with the reasonable person standard should exclude any consideration of his or her personal characteristics including age, race, gender, lack of experience, not to mention poverty or class. (20)

      By excluding subjective factors and social context from the assessment of moral culpability, there are at least two things that the Court did not do, despite purporting to have done so. First, comparing the offender's behaviour with that of a reasonable person, who does not share any of his or her personal characteristics, did not set a neutral or universal standard. (21) On the contrary, while pretending to introduce an objective standard, the Court actually obscured gender, race and class biases. As feminists and critical race theorists have convincingly argued, the semantic shift that has occurred over the last thirty years in legal doctrine from the "reasonable man" standard to that of the "reasonable person" has not changed the fact that the reasonable person has historically, and is still today, often thought to be a man. (22) Also, the "reasonable person" is a man of a particularly rare kind, one might add, who is tall, strong, fearless and not too emotional, embodying an ideal of perfection that almost no one--man or woman--could possibly match. But more than being gender biased, the "reasonable person" is generally understood to come from a white middle class background. (23) As such, the "reasonable person", as judges generally understand the concept, is unlikely to have had many encounters with the criminal justice system. This is mostly because of the systemic discriminating effects of dominant conceptions and Criminal Code definitions of "crime," and prevailing law enforcement strategies that tend to focus on street-level crimes most likely to be committed by the poor, and by other disadvantaged groups. (24) Also, the reasonable person is not likely to know anything about the difficulties of poverty or street life and the constraints it imposes on one's life...