Some reflections on Re BC Motor Vehicle Act.

• Author: Iacobucci, Frank

This article discusses the reasons for judgment of Justice Antonio Lamer (as he then was) in Re BC Motor Vehicle Act, [1985] 2 SCR 486, which, to the surprise of many, mandated a substantive component--not just a procedural one--to the meaning of Section 7 of the Canadian Charter of Rights and Freedoms. The article also examines the methodology Justice Lamer provided to define "justice." Finally, the article also contains a brief discussion of some notable cases that subsequently shaped the concept of justice and concludes with a short section on what the future direction may be in the process of elaborating the meaning of justice.

Dans cet article, on discute des motifs du jugement du juge Antonio Lainer (tel etait alors son titre) dans le Renvoi sur la Motor Vehicle Act (C-B), [1985] 2 RCS 486, dans lesquels, a la surprise de bon nombre, il rend obligatoire une composante de fond--non pas seulement de nature procedurale--pour l'interpretation de l'article 7 de la Charte canadienne des droits et libertes. L'auteur de l'artide examine en outre la methodologie que le juge Lamer a suivie en vue de definir les << principes de justice fondamentale >>. Enfin, l'article renferme une breve discussion de quelques-unes des decisions cles qui ont par la suite faconne la notion de justice et se conclut sur un bref apercu sur ce que pourrait etre l'orientation future suivie dans le processus d'elaboration du concept de justice.

Table of Contents I. INTRODUCTION II. WHAT BC MOTOR VEHICLE DECIDED III. JUSTICE TODAY: RULINGS FOLLOWING BC MOTOR VEHICLE IV. WHAT JUSTICE SHOULD BE? V. CONCLUSION I. INTRODUCTION

Re BC Motor Vehicle Act (1) was decided in 1985, when I was not on the Court and when the Charter was in its infancy. It is still very young today, but at that point even some of the most basic questions about how the Canadian Charter of Rights and Freedoms (2) would operate had yet to be asked, let alone answered. For example, I found it striking when I re-read the case that there was an entire section of the reasons devoted to "The Nature and Legitimacy of Constitutional Adjudication Under the Charter." There were indeed many questions left to answer.

One of those questions was whether section 7 was more than just a due process provision. Did the principles of fundamental justice have a substantive element, or did section 7 simply incorporate procedural protections into the Constitution? (3)

Many people presumed that the Supreme Court of Canada was going to treat section 7 as being about procedure, reflecting the views of senior government officials who worked on the preparation of the Charter. Those people were probably more than a little surprised when the reasons of Justice Lamer (as he then was) were released. So was I. Justice Lamer rejected the procedural/substantive dichotomy altogether. He drew on some of the language in R v Big M Drug Mart Ltd (4) when he asserted that "[t]he task of the Court is not to choose between substantive or procedural content per se but to secure for persons 'the full benefit of the Charter's protection' ... while avoiding adjudication of the merits of public policy." (5) It is a very powerful idea, and one that necessarily requires both a substantive and procedural approach to section 7.

By insisting on a substantive role for section 7, and not a merely procedural role, the judgment of Justice Lamer in BC Motor Vehicle posed a daunting and exciting challenge. It is a challenge that goes to the core of the role of a judge in judicial review, and more importantly, to the cote of the human experience.

Above all, BC Motor Vehicle challenges us to define, as a country and as a society, what we mean when we say the word "justice." While courtrooms and judicial opinions are obvious places to meet this challenge, it is worth remembering that philosophers, scholars, governments and citizens have always sought to answer the question: What is justice? This is not solely a challenge for the courts, but rather for all of Canadian society, including out provincial and federal legislatures and governments. It is also not simply a question of how we identify principles of fundamental justice, but also how we think about life, liberty and security of the person.

The BC Motor Vehicle decision acknowledges that justice is defined through an evolutionary process. Just as our constitution is famously a living tree, growing to serve a just society, so must our concept of justice evolve and grow by a process of accrual.

As we consider the reasoning of Justice Lamer in BC Motor Vehicle, and the body of case law that continues to develop in its wake, we note that the Court has tried, and is still trying, to mediate between principles of fundamental justice promulgated by the courts, and those asserted by the Canadian public, legislatures and government.

In my time here today, I will discuss the challenge raised in BC Motor Vehicle as confronted by the Supreme Court. What is justice? What is it now, and what should it be in the future?

I plan to spend some time discussing the reasons of Justice Lamer, and extracting some of the methods of defining justice that emerge from those reasons.

I will discuss some notable cases that have helped shape the way we think of justice in this country, and I will then conclude my remarks by looking at some cases that suggest where our concept of justice may be heading. Owing to time constraints, I shall be highly selective in the cases chosen for discussion.

2. WHAT BC MOTOR VEHICLE DECIDED

   As you will recall, BC Motor Vehicle was about a piece of British Columbia legislation that established an offence with mandatory fines and imprisonment for driving without a valid license. It was essentially a given that this provision constituted a deprivation of liberty.

   The real issue was whether that deprivation was in accordance with the principles of fundamental justice. The majority held that the pairing of absolute liability and imprisonment was contrary to the principles of fundamental justice and overturned the law. The majority took a purposive approach that shaped the rest of its analysis. It is an approach with roots in the seminal cases of Hunter v Southam Inc (6) and in Big M, which had been decided just a few months earlier. The purposive approach insists on taking the animating principles of a provision into account, and tends to err on the side of greater protection of individual rights. In this case, that approach led the Court to address the relationship between section 7 and the rest of the Charter.

   The reasons of Justice Lamer noted that the truly novel feature of the Charter was not that it invited substantive review of legislation, which had always been part of constitutional federalism adjudication, but rather that the Charter extended the scope of that review to individual rights, and not simply the powers of government. This expansion of the courts' jurisdiction is rooted in section 52 of the Charter. The purposive approach situates this new role as incorporating a substantive element into the principles of fundamental justice. By virtue of section 52, the courts were competent and required to consider the way that legislation impacts individual rights.

   The purposive approach also led the majority to look at section 7 in the context of the other legal rights found in sections 8 to 14 of the Charter. We often place little weight in headings when it comes to interpreting contracts or legislation, but in BC Motor Vehicle it was a key part of the Court's attempt to find and give life to the meaning of section 7. Sections 7 through 14 all fall under the heading of "Legal Rights" in the text of the Charter. To Justice Lamer and the majority, this placement of section 7 with the rest of the legal rights was highly relevant. Since sections 8 through 14 include substantive elements, the majority reasoned that section 7 must do so as well. (7) This view was not without controversy, but what it shows is the Court's attempt to work through the still very new Charter in a manner that is contextual and that sees the Charter as a well thought-out, carefully integrated and coherent document.

   Perhaps it would have been easier over the years to adjudicate issues brought before the Supreme Court had section 7 been purely about procedural protections, but BC Motor Vehicle was not decided to make out jobs as judges, politicians and citizens easier. It was decided to provide the full benefit of the Charter to individuals without forcing the courts to wade too deeply into areas of public policy. Most importantly, BC Motor Vehicle correctly found that there is indeed a substantive element to section 7.

   However, the real challenge of the decision of BC Motor Vehicle is to define the substance of our rights under section 7. In BC Motor Vehicle, Justice Lamer and the majority provided us with the starting point: that "the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system." (8) That approach insists that the analysis be broad; that it look beyond centuries of judicial edicts and take into account society's view of what is fundamentally just. This approach, as well as BC Motor Vehicle's liberal use of the pronouns "we" and "our," suggest that the societal consensus, or at least the Court's perception of that consensus, plays a vital role in defining the principles of fundamental justice.

   To paraphrase Justice Douglas of the Supreme Court of the United States, one of the great challenges in this area of law is to differentiate between the role of being a supreme legislature and a supreme court. (9) As I move on from BC Motor Vehicle to discuss some of the other Supreme Court decisions, I will discuss how they have built on BC Motor Vehicle's approach, and how they have tried to rule on the substance of enactments without judging on policy matters, which...