As noted in Chapter 13, a crucial question that was faced in the early years of the Charter was whether the very general language of section 7 permitted the courts to review the substance of laws or whether judicial review was restricted to procedural matters. In Reference Re s 94(2) of the Motor Vehicle Act (BC),2the Supreme Court held that "the principles of fundamental justice" are not restricted to procedural values but have substantive content as well. The case involved a fundamental issue in the criminal law, namely, the extent to which moral blameworthiness should be a requirement for conviction. Criminal offences typically require proof of two elements: harm and fault. Ordinarily, the fact that harm has resulted from someone’s conduct is not enough to support a conviction. To label someone a criminal, we must also be satisfied that the individual charged is morally blameworthy. The behaviour of the individual accused of a crime must be shown to have fallen short of an expected standard by intending, or at least foreseeing, the forbidden harm. However, the fault requirement is often difficult to prove, and the legislature may judge it to be in the public interest to impose a sanction without proof of fault of the accused. Re Motor Vehicle Act involved such a law. It imposed a mandatory penalty of imprisonment for driving an automobile while one’s licence was under suspension. There were a number of situations that could lead to a licence suspension without the knowledge of the licence holder. An individual might not have even been aware of a licence suspension, and so the result was that a person who had no criminal intent could face a mandatory jail sentence. In the Supreme Court of Canada’s view, such a situation violated the principles of fundamental justice:
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 of the Canadian Charter of
Rights and Freedoms . . . . In other words, absolute liability and imprisonment cannot be combined.3The Supreme Court has subsequently indicated that convicting a person of an offence without the proof of any fault would be acceptable under the Charter, provided that the person was not sentenced to imprisonment.4Even though conviction of the blameless would violate the principles of fundamental justice, it would violate section 7 of the Charter only if the conviction resulted in a deprivation of the right to life, liberty, or security of the person.
The Supreme Court has given further consideration to the principles limiting the imposition of no-fault liability in criminal law in a number of situations. It struck down a "statutory rape" offence that made sex with a girl under fourteen years of age a crime punishable by life imprisonment, even if the accused honestly believed that the girl was older and had consented. The Court’s concern was that "a person who is mentally innocent of the offence - who has no mens rea [or fault] with respect to an essential element of the offence - may be convicted and sent to prison."5Parliament responded with new offences to protect children from sexual interference that required the accused to take all reasonable steps to ascertain the age of the child.
The Criminal Code "constructive or felony murder" provisions, obviating the need to prove an intent to kill if death is caused in the commission of certain offences and in specified circumstances, were challenged as violating the principles of fundamental justice. While there is no question that an individual who causes death in the commission of an offence is guilty of manslaughter - a serious crime - the issue was whether an accused who did not intend to kill and did not even foresee the possibility that death might result should be convicted of murder. The Supreme Court ruled that, absent proof of moral blameworthiness connected to the death, such an individual could not be found guilty of murder, the most serious offence known to the law. At a minimum, said the majority, there must be proof beyond a reasonable doubt of at least subjective foreseeability that the conduct could result in death:6The punishment for murder is the most severe in our society and the stigma that attaches to a conviction for murder is similarly extreme. . . . [T]here must be some special mental element with respect to the
death before a culpable homicide can be treated as a murder. That special mental element gives rise to the moral blameworthiness which justifies the stigma and sentence attached to a murder conviction.7The Court’s list of the most serious "stigma" based offences that require subjective fault in relation to all aspects of the offence has remained short. It includes murder, attempted murder,8and war crimes,9but does not include other serious criminal offences such as manslaughter.
Regulatory offences are at the other end of the seriousness spectrum. They are enacted to enforce non-criminal behaviour with regard to matters that are not inherently unlawful but that require standards to protect an important public interest. These offences do not carry the same moral connotation and have long been regarded as different from traditional criminal law offences. In a 1991 decision, the Supreme Court held that the Charter does not require the same degree of moral culpability as a prerequisite for conviction of a regulatory offence. Where such offences carry the possibility of imprisonment, section 7 does require a minimal degree of fault, but that is satisfied by a standard of negligence. Requiring the accused to establish on a balance of probabilities that he or she was not negligent was also accepted as a reasonable limit on the presumption of innocence protected under section 11(d) of the Charter.10Between these two extremes are criminal offences less serious than murder but more grave than regulatory offences. In this grey area, the Supreme Court has insisted upon a minimal level of culpability as a prerequisite for conviction. The constitutional standard is satisfied by conduct judged blameworthy on an objective standard and fault need not relate to all aspects of the harm being punished. Thus, offences such as unlawfully causing bodily harm,11dangerous driving,12and manslaughter13have been upheld despite the fact that they do not require proof of fault in relation to all aspects of the prohibited act and require proof of fault only on an objective rather than a subjective standard. Negligence is measured on the basis of a reasonable person standard. Constitutional fault standards are less demanding of the state than common law presumptions, such as those against absolute liability and those in favour of proof of subjective fault in relation to all
aspects of the prohibited act.14One reason may be that common law presumptions can be rebutted by clear parliamentary intent whereas section 7 Charter violations are difficult, if not impossible, to justify under section 1 of the Charter. The Court has, however, stressed that section 7 of the Charter requires more than negligence that would produce civil liability: there needs to be proof of a marked departure from the standards of a reasonable person. The Court was concerned that
if every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.15The marked departure standard has now emerged as a constitutional minimum whenever negligence is used as a form of criminal liability.
As discussed in greater depth in Chapter 13, criminal offences can also violate section 7 of the Charter if they are excessively vague so as not to give fair notice to people of what is prohibited or to place limits on law enforcement discretion. However, the courts have almost always rejected claims on this basis and held that all Parliament must do is to determine an ascertainable standard of conduct that establishes a risk zone alerting the individual to the peril of conviction and providing a basis for legal debate. For example, an offence of unduly lessening competition and a defence that allows the reasonable use of corrective force have been held not to be unconstitutionally vague.16In determining whether a criminal law is so vague that it fails to provide fair notice or limit the exercise of law enforcement discretion, the courts will consider their ability to provide clearer meaning to broad legislative provisions through judicial interpretation.
Criminal laws or, indeed, other laws that infringe the right to life, liberty, or security of the person will violate section 7 of the Charter if they are arbitrary in the sense of not being rationally connected to their legislative objectives. The Supreme Court has held that a refusal of the
minister of health to grant a statutory exemption from drug laws to allow a safe injection site to continue to operate on Vancouver’s downtown Eastside would be arbitrary: all the evidence in the case suggested that a continued exemption would further the legislative purposes of protecting health and controlling crime.17Most criminal laws will not be held...