FREEDOM AND SECURITY OF THE PERSON
CONTENTS:
FREEDOM AND SECURITY OF THE PERSON ........................................................................................ 1
India ................................................................................................................................................................ 4
PREVENTIVE DETENTION .................................................................................................................... 4
Art 22:..................................................................................................................................................... 4
S.Krishan v. State of MAdras AIR 1951 SC 301 .................................................................................. 5
The State of Bombay v Atma Ram Sridhar Vaidya AIR 1951 SC 157 ................................................ 6
The State of West Bengal v. Ashok Dey AIR 1972 SC 1660 ................................................................. 6
Rajendra Kumar v State of Gujarat AIR 1988 SC 1255 ......................................................................... 6
ZIMBABWE: ................................................................................................................................................. 7
Liberty ........................................................................................................................................................ 7
Makomboredze v Minister of State Security 1986 (1) ZLR 73 (HC) ............................................... 7
Protection against inhuman or degrading punishment ................................................................................ 7
S v Ncube 1987 (2) ZLR 246 (SC); 1988 (2) SA 702 (ZS): Whipping of adults................................... 7
S v Juvenile 1989 (2) ZLR 61 (SC); 1990 (4) SA 151 (ZS): Constitutionality of sentences of corporal
punishment imposed upon juveniles......................................................................................................... 7
S v Arab 1990 (1) ZLR 253 (SC): Mandatory minimum sentence ........................................................ 8
S v Masitere 1990 (2) ZLR 289 (SC): Punishments of solitary confinement and spare diet amounts to
torture, and to inhuman and degrading punishment .................................................................................. 8
S v Nkomo & Anor 1993 (2) ZLR 131 (S): Confrontation is a permissible element of police
interrogation ........................................................................................................................................... 9
NAMIBIA ...................................................................................................................................................... 9
Sentence: Life imprisonment ...................................................................................................................... 9
S v Tooeib 1992 NR 198 ....................................................................................................................... 9
EUROPEAN COMMUNITY ......................................................................................................................... 9
Lalljee v United Kingdom App No 10556/83: ......................................................................................10
East African Asians v United Kingdom 3 EHRR 76 1973: ...................................................................10
Soering v United Kingdom 11 EHRR 439: ...........................................................................................11
X, Y and Z v Sweden 5 EHRR 147 1982: .............................................................................................11
Education: respect for parent’s religious and philosophical convictions: ..............................................11
CHAHAL v. THE UNITED KINGDOM (70/1995/576/662) 15 November 1996: order for
deportation to India of Sikh separatist for national security reasons - detention for six years pending
deportation - adequacy of judicial review..............................................................................................11
SILVA ROCHA v. PORTUGAL (82/1995/588/674) 15 November 1996: detention in a psychiatric
hospital for a minimum period of three years of person prosecuted for homicide and found not to be
criminally responsible on account of his mental disturbance ................................................................12
AHMED v. AUSTRIA (71/1995/577/663) 17 December 1996: deportation of Somali national
convicted of criminal offence: right of Contracting States to control entry, residence and expulsion of
aliens – refugee status ............................................................................................................................15
Refugee status:.......................................................................................................................................15
AKSOY v. TURKEY (100/1995/606/694) 18 December 1996: alleged torture in South-East Turkey;
Court considers that where individual is taken into police custody in good health but found to be
injured on release, incumbent on State to provide plausible explanation. Ill-treatment was of such a
serious and cruel nature that it can only be described as torture............................................................16
SCOTT v. SPAIN (84/1995/590/676) 18 December 1996: lawfulness and length of pre-trial
detention of person also sought for extradition; Rape investigation provided at all times justification
for applicant's ongoing detention - ........................................................................................................18
D. v. THE UNITED KINGDOM (146/1996/767/964) 2 May 1997: proposed removal of an alien
drug courier dying of Aids to his country of origin where he has no accommodation, family, moral or
financial support and no access to adequate medical treatment .............................................................19
GÜLEÇ v. TURKEY (54/1997/838/1044) 27 July 1998: – alleged unlawful killing by security forces
during a demonstration and lack of an appropriate investigation into the circumstances. .....................19
AERTS v. BELGIUM (61/1997/845/1051) 30 July 1998: applicant held, for seven months of his total
detention, in the psychiatric wing of an ordinary prison, rather than in a social protection centre
designated by the relevant mental health board ....................................................................................20
ANDRONICOU AND CONSTANTINOU v. CYPRUS
(86/1996/705/897) 9 October 1997: alleged unlawful killing of a young couple by officers of a special
police unit in the course of a rescue operation. Court only concerned to establish whether in circumstances
authorities had taken appropriate care in planning and control of rescue operation. ..................................22
ENGLAND ....................................................................................................................................................23
Torture: ..................................................................................................................................................23
Criminal Justice Act 1988 s134: ............................................................................................................23
Cruel and Unusual Punishment: ............................................................................................................23
Objective test: ........................................................................................................................................23
Violations committed by officials .........................................................................................................23
CANADA ......................................................................................................................................................23
R. v. Stillman [1997] 1 S.C.R. 607: Police taking hair samples, buccal swabs and teeth impressions
from accused without his consent while he was in custody -- Whether accused's right to security of
person infringed in manner not consistent with principles of fundamental justice -- Security of person- Search and seizure-- Admissibility of evidence ...................................................................................24
R. v. Sarson [1996] 2 S.C.R. 223: Prerogative writs -- Habeas corpus -- Accused convicted of murder
and sentenced to life imprisonment without eligibility for parole for 15 years -- Accused convicted
under provision subsequently struck down as unconstitutional -- Whether accused`s continued
detention gives rise to right to habeas corpus. .......................................................................................31
R. v. Montour [1995] 2 S.C.R. 416: Arbitrary detention or imprisonment -- Random stopping of
accused's vehicle by police -- Trial judge finding that random stopping of vehicle violated s. 9 of
Canadian Charter of Rights and Freedoms and excluding evidence -- Accused acquitted -- Court of
Appeal setting aside acquittals -- Acquittals restored. ...........................................................................33
R. v. Pontes [1995] 3 S.C.R. 44: Motor Vehicle Act provides that a person convicted of an offence
under certain sections of the Act is "automatically and without notice" prohibited from driving a motor
vehicle for 12 months -- creates absolute liability offence -- Ignorance of the law ..............................34
Chan v. Canada (Minister of Employment and Immigration) [1995] 3 S.C.R. 593: Immigration -Convention refugee -- Well-founded fear of persecution because of membership in particular social
group or political opinion -- Likelihood of forced sterilization following breach of China's one-child
policy -- Confession as to involvement in pro-democracy movement -- Whether or not appellant had
well-founded fear of persecution for reasons of membership in a particular social group (his family)
or political opinion ................................................................................................................................37
R. v. Brown [1994] 3 S.C.R. 749: Cruel and unusual punishment -- Criminal law -- Sentencing -Mandatory minimum sentence for use of firearm while committing indictable offence -- Sentence to be
served consecutively to punishment imposed for an offence arising from same event -- Sentence
imposed on conviction for armed robberies using shotgun ...................................................................40
R. v. Goltz [1991] 3 S.C.R. 485: Cruel and unusual punishment -- Minimum sentence -- Provincial
motor vehicle legislation providing for mandatory minimum sentence of seven days' imprisonment
together with fine for first conviction of driving while prohibited .........................................................41
R. v. Heywood [1994] 3 S.C.R. 761: Criminal Code prohibiting convicted sexual offenders from
loitering in school yards, playgrounds and public parks -- Convicted sexual offender convicted of
loitering by play area in public park -- Definition of "loitering"-- the right not to be subjected to cruel
and unusual treatment or punishment, the right not to be arbitrarily detained or imprisoned .............43
Cunningham v. Canada [1993] 2 S.C.R. 143: Parole -- Mandatory supervision -- Parole Act
amended to change conditions for release on mandatory supervision -- Whether amendment amounts
to denial of prisoner's liberty contrary to principles of fundamental justice .........................................48
Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689: Immigration -- Refugee status -"Particular social group" -- Political opinion -- "Well-founded fear of persecution" necessary to
establishment of claim to Convention refugee status -- Claimant a former member of Irish terrorist
organization sentenced to death by organization for complicity in assisting escape of hostages -Claimant citizen of Ireland and of United Kingdom -- Whether state complicity requirement for
persecution -- Whether terrorist organization a "particular social group" -- Whether dissention from
politico-military organization basis for persecution for political opinion ............................................49
2
R. v. Macooh [1993] 2 S.C.R. 802: Arbitrary detention -- Peace officer entering private home without
a warrant to arrest accused for a provincial offence-- Common law traditionally recognizing hot
pursuit exception to principle of sanctity of home -- Whether exception should be extended to arrests
for provincial offences -- Whether entry by peace officer lawful. .........................................................53
Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519: Terminally ill patient
seeking assistance to commit suicide -- Whether Criminal Code provision prohibiting aiding a person
to commit suicide infringes s. 7 of Canadian Charter of Rights and Freedoms; Equality rights -Discrimination on basis of physical disability-- Cruel and unusual punishment ..................................55
Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.) [1990] 1 S.C.R. 1123 Vagueness
-- Criminal Code prohibiting communications in public for the purpose of prostitution and keeping of
common bawdy-houses -- Whether the Code impermissibly vague – protection of economic rights-Freedom of expression ..........................................................................................................................60
Constitutional law -- Charter of Rights -- Freedom of expression -- Criminal Code prohibiting under s.
195.1(1)(c) communications in public for the purpose of prostitution and under s. 193 the keeping of
common bawdy-houses .........................................................................................................................60
Canada (Minister of Employment and Immigration) v. Chiarelli [1992] 1 S.C.R. 711 Right to
liberty and right not to be deprived thereof except in accordance with principles of fundamental
justice -- Deportation of permanent resident convicted of serious crime -- Appeal to Immigration
Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding
involvement with organized crime -- Cruel and unusual punishment or treatment –Equality Rights –
natural justice ........................................................................................................................................65
Idziak v. Canada (Minister of Justice) [1992] 3 S.C.R. 631: -- Extradition -- Application to Minister
to exercise discretion not to extradite -- Internal memorandum advising minister -- Minister not
informing fugitive of memorandum -- Whether s. 7 right to fundamental justice infringed -- Canadian
Charter of Rights and Freedoms, s. 7. Prerogative writs -- Habeas corpus with certiorari in aid ..........69
R. v. Pearson [1992] 3 S.C.R 665: -- Habeas corpus -- Accused charged with trafficking in narcotics
and denied bail -- Accused challenging constitutionality of bail provisions -- Whether habeas corpus
available remedy-- Right to bail -- Reverse onus Presumption of innocence -- Arbitrary detention ....72
R. v. Morales [1992] 3 S.C.R. 711: Right to bail -- Reverse onus provision -- Order of detention -Justification for detention in custody -- when necessary in the public interest or for the protection or
safety of the public -- criteria of public interest and public safety – vagueness-- Arbitrary detention..75
R. v. Sawyer [1992] 3 S.C.R. 809: -- Sentencing -- Sentence including mandatory prohibition against
possession of firearms or ammunition -- Appellants' employment as stonemasons involving use of
explosives and seasonal employment as hunting guides involving use of hunting rifles -- Whether
mandatory prohibition cruel and unusual punishment ..........................................................................80
R. v. SMITH (EDWARD DEWEY) [1987] 1 S.C.R 1987: Minimum sentence for importing narcotics
notwithstanding degrees of seriousness of the offence -- Whether or not minimum sentence cruel and
unusual punishment ...............................................................................................................................81
R. v. Goltz [1991] 3 S.C.R. 485: -- Cruel and unusual punishment -- Minimum sentence -- Provincial
motor vehicle legislation providing for mandatory minimum sentence of seven days' imprisonment
together with fine for first conviction of driving while prohibited .........................................................84
R. v. Storrey [1990] 1 S.C.R. 241: Arbitrary detention or imprisonment -- Accused arrested for
aggravated assault and detained 18 hours before charge laid -- Accused kept in custody for the
purposes of conducting an identification parade -- Whether accused's arrest lawful -- Whether accused
arbitrarily detained -- .............................................................................................................................87
Steele v. Mountain Institution [1990] 2 S.C.R. 1385: Indeterminate sentence -- Necessary
psychiatric treatment not available -- Parole repeatedly denied -- Whether or not Parole Board erred in
refusing to release prisoner -- Whether or not flaw in operation of the parole review process -Whether or not flaw amounting to cruel and unusual punishment ........................................................88
USA v. Cotroni [1989] 1 S.C.R. 1469: Right of Canadian citizen to remain in Canada -- Extradition -Conspiracy to import drugs into U.S.A. from Canada -- Actions of accused taking place in Canada -Offence existing under both U.S. law and Canadian law -- Whether or not extradition of Canadian
citizen under these circumstances an infringement of citizen's right to remain in Canada ....................91
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Freedom and security of the person
12. (1) Everyone has the right to freedom and security of the person, which includes the
right a. not to be deprived of freedom arbitrarily or without just cause;
b. not to be detained without trial;
c. to be free from all forms of violence from either public or private sources;
d. not to be tortured in any way; and
e. not to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity, which includes the right
a. to make decisions concerning reproduction;
b. to security in and control over their body; and
c. not to be subjected to medical or scientific experiments without their informed
consent.
(Note that Zimbabwe and South Africa have also declared corporal punishment to be
unconstitutional. See S v Ncube 1988 (2) SA 702 (ZS), S v Juvenile 1990 (4) SA 151 (ZS),
S v Williams 1995 (3) SA 632 (CC))
India
This section requires elaboration.
PREVENTIVE DETENTION
(The rights of the accused under the Indian Constitution)
Art 22:
No person shall be detained in custody without being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied the right to consult and to be defended
by, legal practitioner of his choice.
Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty four hours of such areest excluding the time
necessary for such journey from the place of arrest to the court of magistrate and no
person shall be detained in custody beyond the said period without the authority of
the magistrate.
Nothing in clauses (1) and (2) shall applyto any person for the time being an enemy alien
to any person who is arrested or detained under any law providing for
preventive detention.
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(4) No law providing for preventive detention shall authorize the detention of any
person for a period longer than three months unlessan advisory Board consisting of persons who are qualified to be appointed as, Judges of
High Court has reported before the expiration of the said period that there is, in its
opinion sufficient cause for such detention:
Provided that nothing in this clause shall authorize such detention beyond the period
specified by any law made by Parliament
(5)When any person is detained in pursuance of an order made under any law providing
for preventive detention, the authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order has been made and
shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making such order to disclose the
facts which such authority considers to be against the public interest to disclose.
Preventive detention means the detention of a person without trial in such
circumstances that the evidence before the authority is not sufficient to make out a legal
charge or to secure the conviction of the detenue by legal proof, but still may be
sufficient to justify his detention. The object of preventive detention is to prevent a
person from doing something.1 No offence is proved, nor any charge formulated: and the
justification is suspicion or reasonable probability and not criminal conviction which only
can be warranted by legal evidence.2
The object of the framers of the Constitution to give Constituional status to preventive
detention was that though they recognized the need for such laws, they wanted to provide
safeguards to prevent abuse of power. The procedural requirements are mandatory and
any violation would render the detention invalid.
S.Krishan v. State of MAdras AIR 1951 SC 301
Validity of Preventive Detention(Amendment) Act (1951) considered. The common
questions which arose in this cases were whether certain provisions of the Preventive
Detention Act ,1950 purporting to amend the Ppreventive Detention Act ,1950 ,so as to
authorise detention of the petitioners to be continued beyond the expiry of one year are
ultra vires and inoperative.
Two conditions have to be fulfilled in order that a person can be detained for a longer
period than three months: (i) his case must be referred to an Advisory Board constituted
in the manner specified, (ii) that the Board must make a report before expiration of
three months that there is sufficient cause for such detention.
The amendment was challenged as being unconstitutional and contravening Art. 22(4)(a)
of the constitution.
The Supreme Court after considering the matter eloborately held that it is open for the
Parliament to change the procedure by enacting a law and that procedure becomes the
procedure established by law within the meaning of Article 21(which provides that No
person sahllb vbe deprived of his life or liberty except according to the procedure
1
2
DURGA DAS BASU, CONSTITUTIONAL LAW OF INDIA, ( sixth edition, New Delhi, 1991)P.80
Alijan v. D.M. AIR 1983 SC 1130.
5
established by law) of the constitution. Further, the provisions of the amendment
ssubstantially satisfy the requirements of Article 22(4)(a) and are therefore valid.
The State of Bombay v Atma Ram Sridhar Vaidya AIR 1951 SC 157
The question that arose was whether satisfaction of Government under Article 22 (5) of
the Constitution of India can be challenged.
The Court held that the satisfaction of the government alone is necessary, which must
be based on some grounds. If the grounds on which it is stated that the government is
satisfied are such as a rational human being can consider connected in some manner
with the objects sought to be acieved , the question of satisfaction cannot be challenged
in a court of law except on the ground of mala fides
The first part of Article 22 (5) postulates two rights .The first part of Article 22 (5) gives
right to the detained person to be furnished with the grounds on which the order has
been made and that has to be done as soon as possible. The second right given to such a
person is of being offorded"the earliest oppurtunity of making a representation against
the order". If these two requirements are complied with, the detention is valid.
The State of West Bengal v. Ashok Dey AIR 1972 SC 1660
The Constitutional validity of the West Bengal Preventive D4etention Act was
challenged as being the fundamental rights of the citizen under Art 19 of the Constitution.
The Supreme Court held that Art 22 merely invests the Parliament with an overriding
power enabling it to make a law, providing for preventive detention prescribing the
circumstances under which a person may be detained for a period longer than three
months without obtaining the opinion of the Advisory Board and also prescribing the
maximum period for which the person may be detained. The restrictions imposed by the
Act on the fundamental rights of the citizen to move freely throughout the territory of
India, under Art 19, are in the interests of the general public and are covered by the
exceptions to the Art 19.
Rajendra Kumar v State of Gujarat AIR 1988 SC 1255
The petitioner was engaged in bulk importation of Indian made Foreign liquor from
across the border. He was detained under the Prevention of Smuggling Activities Act and
the Conservation of Foreign Exchange Act. He was arrested on Feb 2nd, 1987 and the
details of the case were placed before the authority only in May and the authority passed
the order on 28th May. The petitioner challenged the order on the ground that there was
delay in making the same and so he was denied of the Constitutional rights. The
Supreme Court held that there has to be a distinction drawn between the arrests under the
above Acts and the rest of the arrests. The investigation in these matters may take a very
long time due to the peculiarities of the activities. Therefore, it cannot be said that
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detention was invalid. Even in the absence of explanation for delay it cannot be said that
thesubjective satisfaction arrived at by the detaining authority was not genuine or that the
grounds were stale or illusory. Also held that there was no delay.
Grounds are conclusions of of facts and not a compleate detailed recital of all the
facts.These grounds on which the order of detention is made must be supplied.
The second right of being afffordred the "earliest opportunity of making a representation
against the order " is not confined to only a physical oppurtunity of supplying paper and
pen only.In ordeer that a representation can be made the person detained must first
have knowledge of
The detention order shall be invalid if the grounds are too vague to enable the detenues to
make a representation3. A vague ground is one which is not sufficient to enable the
detenue to make an effective representation, while an irrelevant ground is one which has
no connection at all with the satisfaction of the authority.4
ZIMBABWE:
Liberty
Makomboredze v Minister of State Security 1986 (1) ZLR 73 (HC)
Damages action for wrongful arrest, imprisonment and 12 months wrongful
deportation. Held that the right to liberty is one of the pillars of freedom in a
democratic society.
Protection against inhuman or degrading punishment
S v Ncube 1987 (2) ZLR 246 (SC); 1988 (2) SA 702 (ZS): Whipping of adults
Whipping of adults is inhuman or degrading punishment and contravenes s15(1) of
the constitution.
S v Juvenile 1989 (2) ZLR 61 (SC); 1990 (4) SA 151 (ZS): Constitutionality of
sentences of corporal punishment imposed upon juveniles
3
4
AK Gopalan v. State of madras 91950) SCR 88.
Tarapada De v State of West Bengal 91951) SCR 167. (184)
7
This appeal dealt with the constitutionality of sentences of corporal punishment
imposed upon juveniles in terms of s330 of the Criminal Procedure and Evidence
Act. Section 15(1) of the Constitution provides that no person shall be subject to
inhuman or degrading punishment. The Supreme Court in S v Ncube & Ors (2)
ZLR 246 (SC) held that the carrying out of corporal punishment on adults in terms
of s 109 of the Prison Regulations 1956 was unconstitutional being barbaric,
inherently brutal and cruel. Dumbetshena CJ found that the strictures applied to
corporal punishment of adults would apply a fortiori to such punishment when
inflicted on juveniles. McNally JA in his dissenting judgment disagreed with the
notion that there is inevitable brutalisation in the imposition of juvenile cuts. He
further disagreed with the suggestion that all corporal punishment is ipso facto
unconstitutional. He considered it inappropriate that the courts should intervene in
the disputes of pedagogues about matters of discipline. The question of corporal
punishment in schools was a matter for policy determined by pedagogues and
educational psychologists.
S v Arab 1990 (1) ZLR 253 (SC): Mandatory minimum sentence
Dumbetshena CJ:
The appellant was convicted of dealing in emeralds. No special reasons were found
for not imposing the minimum sentence of 3 years. On appeal against both
conviction and sentence, the appellant raised the argument that the mandatory
minimum sentence under s3(2) of the Precious Stones Trade Act 1978 was
unconstitutional as being an inhuman and degrading punishment contrary to s15(1)
of the constitution. In dismissing the appeal the court held that the minimum
sentence did not create a punishment disproportionate to the offence.
S v Masitere 1990 (2) ZLR 289 (SC): Punishments of solitary confinement and
spare diet amounts to torture, and to inhuman and degrading punishment
Korsah JA:
The applicant had been convicted by a magistrate of housebreaking with intent to
steal and theft. He was senteced to three years imprisonment with labour. The
magistrate ordered that the first and last fortnights of the terms of imprisonment be
spent in solitary confinement and on spare diet.
Held that the punishments of solitary confinement and spare diet amounts to
torture, and to inhuman and degrading punishment. Such punishment was thus
prohibited by s 15 of the Constitution of Zimbabwe, and thus unconstitutional.
8
S v Nkomo & Anor 1993 (2) ZLR 131 (S): Confrontation is a permissible
element of police interrogation
McNally JA:
Confrontation is a permissible element of police interrogation procedures,
provided it is not improper or persistent. It is not improper to tell a suspect that
his co-accused has confessed where that indeed has happened, nor is it
improper for the police to tell the suspect that they know about an incident
connected with the alleged crime.
NAMIBIA
Sentence: Life imprisonment
S v Tooeib 1992 NR 198
O Linn J:
Whether life imprisonment was a competent and constitutional sentence in
Namibia. It was contended that it was a sentence of death and therefore
unconstitutional in terms of art 6 of the constitution. It was also argued that it was in
conflict with article 8 which prohibited the impostition of cruel, inhuman or degrading
treatment of punishment. Regard would have to be had to the contemporary norms,
aspirations, expectations, sensitivities and views of the people of Namibia. In the
absence of such an enquiry the court could take judicial notice of the fact that the
people of Namibia were in favour of imprisonment for life in cases of extreme
gravity. Sentence of life imprisonment not unconstitutional.
EUROPEAN COMMUNITY
Article 3
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 5
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty
save in the following cases and in accordance with the procedure prescribed by law:
a. the lawful detention of a person after conviction by a competent court;
b. the lawful arrest or detention of a person for non- compliance with the lawful order of
a court or in order to secure the fulfillment of any obligation prescribed by law;
c. the lawful arrest or detention of a person effected for the purpose of bringing him
before the competent legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so;
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d. the detention of a minor by lawful order for the purpose of educational supervision or
his lawful detention for the purpose of bringing him before the competent legal authority;
e. the lawful detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry
into the country or of a person against whom action is being taken with a view to
deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of
the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this
Article shall be brought promptly before a judge or other officer authorised by law to exercise
judicial power and shall be entitled to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of
this Article shall have an enforceable right to compensation.
Article 8
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the protection of the rights and
freedoms of others.
Article 13
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.
Lalljee v United Kingdom App No 10556/83:
Inhuman treatment, immigration, discrimination.
East African Asians v United Kingdom 3 EHRR 76 1973:
Racial discrimination, degrading treatment, security of person, immigration control.
10
Soering v United Kingdom 11 EHRR 439:
extradition; death penalty; judicial review.
X, Y and Z v Sweden 5 EHRR 147 1982:
Corporal punishment by parents: Respect for private and family life: Parental rights and
choices in the upbringing and education of their children were paramount as against the
state under Art 8(1). The Code of Parenthood was not legally enforceable and only
attempted a reappraisal of the treatment of children. Certain assaults and molestations
were however prohibited under the Penal Code. The provisions were not unusual or
draconian. The mere fact that legislation regulated something which pertained to family
life did not constitute a breach of Art 8(1).
Education: respect for parent’s religious and philosophical convictions:
states were not prevented from imparting through education or teaching information or
knowledge of a directly or indirectly religious or philosophical kind. Article 2 of protocol
1 did not permit parents to object to aspects of teaching on these grounds unless the
information or knowledge was not conveyed in an objective, critical and pluralistic
manner ie there must be an attempt to indoctrinate.
The above European cases require elaboration
CHAHAL v. THE UNITED KINGDOM (70/1995/576/662) 15 November 1996:
order for deportation to India of Sikh separatist for national security reasons detention for six years pending deportation - adequacy of judicial review
United Kingdom - order for deportation to India of Sikh separatist for national security
reasons - detention for six years pending deportation - adequacy of judicial review
I. Article 3 of the Convention
A. Applicability in expulsion cases
Expulsion may engage responsibility of State under Article 3 where substantial grounds
shown for believing there would be real risk to deportee of torture or inhuman or
degrading treatment or punishment in receiving country.
B. Cases involving alleged danger to national security
Article 3 provides absolute prohibition of torture - in expulsion cases, if substantial
grounds shown for believing deportee would be at risk, his conduct cannot be material
consideration.
C. Application to particular circumstances
1. Point of time for assessment of risk
Material time that of Court's consideration of case.
2. Assessment of risk
Government proposed to return first applicant, well-known supporter of Sikh separatism,
to airport of choice in India - evidence relating to fate of Sikh militants outside state of
Punjab therefore of particular relevance.
Court persuaded by evidence corroborated from different objective sources that until
mid-1994 elements of Punjab police accustomed to act without regard to human rights of
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suspected Sikh militants, including pursuing them outside home state - no evidence of
change of regime within Punjab police - despite recent improvement in human rights
situation in Punjab and efforts of Indian authorities to bring about reform, problems
persist with regard to observance of human rights by certain members of security forces
in Punjab and elsewhere in India - against this background, assurances of the Indian
Government inadequate guarantee of safety - applicant's high-profile likely to make him
target of hard-line elements in security forces.
Conclusion: violation, in the event of decision to deport to India being implemented
(twelve votes to seven).
II. Article 5 § 1 of the Convention
All that Article 5 § 1 (f) requires is that "action is being taken with a view to deportation"
- immaterial whether detention can be reasonably considered necessary or whether
underlying decision to expel justified.
However, if deportation proceedings not prosecuted with due diligence, detention will
cease to be permissible - domestic proceedings commenced 16 August 1990 and ended 3
March 1994 - given exceptional circumstances and detailed consideration required by
courts and executive, period not excessive.
In view of length of applicant's detention, necessary to consider whether sufficient
guarantees against arbitrariness existed -in this context, advisory panel including
experienced judicial figures which reviewed national security evidence in full, provided
adequate guarantee that there were prima facie grounds for believing applicant to be
security threat and thus that executive did not act arbitrarily in ordering his detention.
Conclusion: no violation (thirteen votes to six).
III. Article 5 § 4 of the Convention
Since Article 5 § 4 provides lex specialis in relation to more general requirements of
Article 13, Court must consider it first.
Article 5 § 4 guarantees right to judicial review of sufficient width as to bear on
conditions essential for "lawful" detention under Article 5 § 1.
Domestic courts not provided with information relating to national security and thus
unable to review whether decision to detain applicant justified - given procedural shortcomings of advisory panel, it could not be considered "court" for purposes of Article 5 §
4.
Court recognises that use of confidential material may be unavoidable where national
security at stake - however, national authorities cannot be free from effective judicial
control whenever they choose to assert that national security involved - technique can be
employed to accommodate legitimate security concerns and individual procedural justice.
Conclusion: violation (unanimously).
V. Article 13 of the Convention
Judicial review and advisory panel procedure inadequate remedies for Article 3
complaint since could not review decision to deport with reference solely to question of
risk to applicant, leaving aside national security considerations.
Conclusion: violation (unanimously).
SILVA ROCHA v. PORTUGAL (82/1995/588/674) 15 November 1996:
detention in a psychiatric hospital for a minimum period of three years of person
12
prosecuted for homicide and found not to be criminally responsible on account of
his mental disturbance
SUMMARY
Portugal - detention in a psychiatric hospital for a minimum period of three years of
person prosecuted for homicide and found not to be criminally responsible on account of
his mental disturbance
Article 5 § 4 of the Convention
Detention in question covered both by subparagraph (a) of Article 5 § 1 and subparagraph
(e) - the two situations envisaged by those provisions, which were not mutually
exclusive, coexisted.
As regards minimum period of three years, the review required under Article 5 § 4 was
incorporated in the detention decision - circumstances of the case justified applicant's
removal from society for at least three years.
Right to bring proceedings within meaning of Article 5 § 4 took effect after that period in that connection intervals between the decisions given in this case under procedure for
judicial review of the lawfulness of the detention were not excessive.
Conclusion: no violation (six votes to three).
ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
23. Mr Silva Rocha complained that he was unable to have the lawfulness of his
continued detention reviewed at reasonable intervals. He relied on Article 5 § 4 of the
Convention, which is worded as follows:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided
speedily by a court and his release ordered if the detention is not lawful."
He submitted in substance that the effect of Article 91 § 2 of the Portuguese Criminal
Code, taken in conjunction with Articles 92, 93 and 94 of that Code, was to create a
situation that was incompatible with the Convention.
He observed that the Oporto Criminal Court had found that he was not criminally
responsible (see paragraph 10 above). It followed, in his view, that the only justification
for his detention could be the danger that he represented for society. That danger was
capable of evolving with the passing of time and consequently, in accordance with
Article 5 § 4, judicial review of the extent to which it persisted had to be available at
reasonable intervals.
The applicant complained that in any event he could be discharged only after three years
even if was established before the expiry of that period that he was no longer dangerous.
Under the rules in issue there was therefore, he argued, no judicial review of the
lawfulness of the detention before the expiry of the period, and that could not be regarded
as reasonable under the Court's case-law.
The amendments to the legislation introduced by Legislative Decree no. 48/95 of 15
March 1995 (see paragraph 19 above) showed that the respondent State had recognised
that the rules applied in the applicant's case were not compatible with Article 5 § 4 of the
Convention.
13
24. The Government contended that the review of the lawfulness of the detention was
incorporated in the initial judicial decision, given at the conclusion of judicial
proceedings. The question whether the review required by Article 5 § 4 had been
available could only apply to later decisions on the continuation of the detention. The law
provided for automatic review of the lawfulness of the detention three years after its
beginning.
By laying down a minimum period of three years, the Criminal Code attributed to the
security measure provided for in Article 91 a separate purpose of general prevention. In
the instant case, the court had imposed a period of that length because special reasons
relating to the protection of public order and the legal system so required. The applicant
had taken away a human life and there was a risk of his re-offending. The aim of general
prevention explained the deduction by the court of the period of detention on remand
from the three-year period. In addition, the security measure imposed on Mr Silva Rocha
had been proportionate to the seriousness of the offence committed.
There could be no question of a review for the purposes of Article 5 § 4 of the
Convention until the expiry of the minimum period, at which point only specific grounds
of prevention were in issue.
Furthermore it had been open to the applicant at any time to bring habeas corpus
proceedings for the review of the lawfulness of his deprivation of liberty, even if he could
not have been discharged during the three-year minimum period.
25. The Commission took the view that the Court's reasoning in the cases of Winterwerp
v. the Netherlands (judgment of 24 October 1979, Series A no. 33) and X v. the United
Kingdom (judgment of 5 November 1981, Series A no. 46) applied to Mr Silva Rocha's
situation. Even though a minimum period of three years had been imposed, his detention
was a deprivation of liberty on grounds which by definition were capable of evolving
with the passing of time. The review of the lawfulness of such a measure could not be
incorporated in the initial judicial decision. During a period of nearly two years - between
the initial decision of 13 July 1990 and the first review decision of 29 June 1992 -, the
applicant, who had been detained within the meaning of Article 5 § 1 (e), had had no
possibility of being discharged and any application for release had been bound to fail.
The Commission accordingly concluded that such a lapse of time was "manifestly
excessive" (see the Luberti v. Italy judgment of 23 February 1984, Series A no. 75, p. 16,
§ 34, and the Herczegfalvy v. Austria judgment of 24 September 1992, Series A no. 244,
p. 24, §§ 77).
26. The Court notes that the Oporto Criminal Court found that the established facts
constituted the offences of which the applicant had been accused, namely aggravated
homicide and unlawful possession of arms. It also found that, on account of the mental
disturbance from which he suffered, he could not be held criminally responsible and was
at the same time dangerous. It was for these reasons that it ordered, in accordance with
Articles 20 § 1 and 91 § 2 of the Criminal Code, his detention in a psychiatric institution
for a minimum period of three years (see paragraphs 10 and 19 above).
27. The applicant was accordingly lawfully detained pursuant to a decision which, in the
circumstances of the case, was both a "conviction by a competent Court" within the
meaning of Article 5 § 1 (a) of the Convention and a security measure taken in relation to
a "person of unsound mind" within the meaning of Article 5 § 1 (e).
14
In the present case these two situations, which are not necessarily mutually exclusive,
coexisted.
28. The case involved a homicide committed by a person who could not be held
responsible for his actions and who was at the same time dangerous. The seriousness of
the offences together with the risk that he represented for himself as well as for others
could reasonably justify his being removed from society for at least three years.
29. For that period the review required by Article 5 § 4 of the Convention was
incorporated in the detention decision taken in this instance by the Oporto Criminal
Court.
30. It was therefore not until those three years had elapsed that the applicant's right to
"take proceedings by which the lawfulness of his detention shall be decided ... by a court"
at reasonable intervals took effect.
In this respect the Court notes that the legislation applied to Mr Silva Rocha (Article 93
of the Criminal Code, see paragraph 19 above) provided for a periodic and automatic
judicial review after two years and made it possible for the person detained to apply to
the court at any moment to have the detention measure lifted (see, mutatis mutandis, the
X v. the United Kingdom judgment of 5 November 1981 (Series A no. 46, p. 23, § 52).
31. In the present case, after the judgment of 13 July 1990 (see paragraph 10 above)
judicial reviews took place between 21 March and 29 June 1992 (see paragraphs 12 and
13 above), in February 1993 (see paragraph 14 above), between 19 March and 3 May
1993 (see paragraphs 15 and 16 above) and over a period from the summer of 1993 to 9
January 1994 (see paragraphs 17 and 18 above).
The Court considers that the intervals between the different reviews were not excessive.
It notes that Mr Silva Rocha was discharged as soon as he had ceased to be regarded as
dangerous.
32. In conclusion, the Court finds that the applicant had the possibility of having the
lawfulness of his detention reviewed at reasonable intervals and that there has therefore
been no violation of Article 5 § 4 of the Convention.
AHMED v. AUSTRIA (71/1995/577/663) 17 December 1996: deportation of
Somali national convicted of criminal offence: right of Contracting States to
control entry, residence and expulsion of aliens – refugee status
Refugee status:
Austria - deportation of Somali national convicted of criminal offence (section 5 of the
Right to Asylum Act and sections 18, 36 and 37 of the Aliens Act)
II. Article 3 of the Convention
Restatement of case-law: right of Contracting States to control entry, residence and
expulsion of aliens - absolute nature of Article 3.
Refugee status: granted to the applicant in 1992 then withdrawn in 1994 following his
conviction for attempted robbery.
In the case of an expulsion that has not yet taken place, Court assesses risks run at the
time when it considers the case - no change in the situation in Somalia since 1992.
15
Conclusion with regard to risks of treatment contrary to Article 3: not invalidated by
applicant's criminal conviction or current lack of State authority in Somalia.
Conclusion: violation if deportation order were to be enforced (unanimously).
AKSOY v. TURKEY (100/1995/606/694) 18 December 1996: alleged torture in
South-East Turkey; Court considers that where individual is taken into police
custody in good health but found to be injured on release, incumbent on State to
provide plausible explanation. Ill-treatment was of such a serious and cruel
nature that it can only be described as torture.
Turkey - alleged torture in South-East Turkey
I. Court's assessment of the facts
Court, in line with constant case-law, accepts facts as found by Commission - finds it
established that applicant, having been detained incommunicado for at least fourteen
days, appeared before Public Prosecutor with visible injuries to arms.
III. Merits
A. Article 3 of the Convention
Applicant complained he had been suspended from his arms ("Palestinian hanging")
causing paralysis of both arms.
Court considers that where individual is taken into police custody in good health but
found to be injured on release, incumbent on State to provide plausible explanation.
Ill-treatment was of such a serious and cruel nature that it can only be described as
torture.
Conclusion: violation (eight votes to one).
2. Article 13 of the Convention
Where individual has arguable claim to have been tortured by agents of State, notion of
"effective remedy" entails, in addition to payment of compensation where appropriate,
thorough and effective investigation capable of leading to identification and punishment
of those responsible.
Conclusion: violation (eight votes to one).
2. Article 13 of the Convention
95. The Court observes that Article 13 guarantees the availability at national level of a
remedy to enforce the substance of the Convention rights and freedoms in whatever form
they might happen to be secured in the domestic legal order. The effect of this Article is
thus to require the provision of a domestic remedy allowing the competent national
authority both to deal with the substance of the relevant Convention complaint and to
grant appropriate relief, although Contracting States are afforded some discretion as to
the manner in which they conform to their obligations under this provision (see the
Chahal judgment cited in paragraph 62 above, pp. 1867-1868, § 145). The scope of the
obligation under Article 13 varies depending on the nature of the applicant's complaint
under the Convention (see the above-mentioned Chahal judgment, pp. 1868-1869, §§
150-151). Nevertheless, the remedy required by Article 13 must be "effective" in practice
16
as well as in law, in particular in the sense that its exercise must not be unjustifiably
hindered by the acts or omissions of the authorities of the respondent State.
96. The Court would first make it clear that its finding (in paragraph 57 above) that there
existed special circumstances which absolved the applicant from his obligation to exhaust
domestic remedies should not be taken as meaning that remedies are ineffective in South
East Turkey (see mutatis mutandis the Akdivar and Others judgment cited in paragraph
38 above, pp. 1213-1214, § 77).
97. Secondly, the Court, like the Commission, would take judicial notice of the fact that
allegations of torture in police custody are extremely difficult for the victim to
substantiate if he has been isolated from the outside world, without access to doctors,
lawyers, family or friends who could provide support and assemble the necessary
evidence. Furthermore, having been ill-treated in this way, an individual will often have
had his capacity or will to pursue a complaint impaired.
98. The nature of the right safeguarded under Article 3 of the Convention has
implications for Article 13. Given the fundamental importance of the prohibition of
torture (see paragraph 62 above) and the especially vulnerable position of torture victims,
Article 13 imposes, without prejudice to any other remedy available under the domestic
system, an obligation on States to carry out a thorough and effective investigation of
incidents of torture.
Accordingly, as regards Article 13, where an individual has an arguable claim that he has
been tortured by agents of the State, the notion of an "effective remedy" entails, in
addition to the payment of compensation where appropriate, a thorough and effective
investigation capable of leading to the identification and punishment of those responsible
and including effective access for the complainant to the investigatory procedure. It is
true that no express provision exists in the Convention such as can be found in Article 12
of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, which imposes a duty to proceed to a "prompt and
impartial" investigation whenever there is a reasonable ground to believe that an act of
torture has been committed. However, in the Court's view, such a requirement is implicit
in the notion of an "effective remedy" under Article 13 (see mutatis mutandis the Soering
judgment cited in paragraph 62 above, pp. 34-35, § 88).
99. Indeed, under Turkish law the Prosecutor was under a duty to carry out an
investigation. However, and whether or not Mr Aksoy made an explicit complaint to him,
he ignored the visible evidence before him that the latter had been tortured (see paragraph
56 above) and no investigation took place. No evidence has been adduced before the
Court to show that any other action was taken, despite the Prosecutor's awareness of the
applicant's injuries.
Moreover, in the Court's view, in the circumstances of Mr Aksoy's case, such an attitude
from a State official under a duty to investigate criminal offences was tantamount to
undermining the effectiveness of any other remedies that may have existed.
100. Accordingly, in view in particular of the lack of any investigation, the Court finds
that the applicant was denied an effective remedy in respect of his allegation of torture.
In conclusion, there has been a violation of Article 13 of the Convention.
17
SCOTT v. SPAIN (84/1995/590/676) 18 December 1996: lawfulness and length
of pre-trial detention of person also sought for extradition; Rape investigation
provided at all times justification for applicant's ongoing detention Spain - lawfulness and length of pre-trial detention of person also sought for extradition
I. Article 5 § 1 of the Convention
A. Preliminary observations
Rape investigation provided at all times justification for applicant's ongoing detention extradition authorities ordered detention following request for extradition but prolonged it
beyond date when provisional release was granted in rape case - Court will consider legal
basis of detention "autonomously" and approach whole detention as falling within Article
5 § 1 (c).
B. The lawfulness of the applicant's continued detention
Detention between provisional release in rape case (6 March 1992) and new detention in
rape case (25 August 1993) followed legal procedure - other issues of lawfulness to be
treated under Article 5 § 3.
New detention order in rape case (25 August 1993) also followed legal procedure - in
view of available evidence against applicant, order complied with substantive domestic
legislation and was not arbitrary.
Conclusion: no violation (eight votes to one).
II. Article 5 § 3 of the Convention
A. Government's preliminary objection (non-exhaustion of domestic remedies)
Applicant filed requests for release only with extradition authorities - in circumstances,
reasonable to consider that these authorities had last say in matters relating to detention,
no purpose served by applying to criminal authorities.
Conclusion: dismissal (unanimously).
B. Merits of the complaint
1. Period to be taken into consideration
From arrest to acquittal (4 years and 16 days).
2. Grounds for continued detention
Evident and significant risk of applicant's absconding persisted throughout entire period
of detention.
- iv 3. Conduct of the proceedings
Case not particularly complex - length of proceedings not attributable to applicant - duty
of "special diligence" not observed.
Conclusion: violation (unanimously).
III. Article 50 of the Convention
Damage: extradition granted on condition that time spent in prison pending extradition be
deducted from final sentence - applicant sentenced to life imprisonement in United
Kingdom - finding of violation constitutes sufficient just satisfaction.
Costs and expenses: excessive.
Conclusion: respondent State to pay a specified sum to applicant (unanimously).
18
D. v. THE UNITED KINGDOM (146/1996/767/964) 2 May 1997: proposed
removal of an alien drug courier dying of Aids to his country of origin where he
has no accommodation, family, moral or financial support and no access to
adequate medical treatment
United Kingdom - proposed removal of an alien drug courier dying of Aids to his country
of origin (St. Kitts) where he has no accommodation, family, moral or financial support
and no access to adequate medical treatment
I. Article 3 of the Convention
Expulsion of alien drug couriers is a justified response to the scourge of drug trafficking right of Contracting States to expel aliens is however subject to the need to respect the
absolute nature of the prohibition contained in Article 3 - duty of respondent State to
secure to the applicant the guarantees contained in Article 3 irrespective of the gravity of
the offence committed - applicant within the jurisdiction of the respondent State since 21
January 1993 even if he never entered in the technical sense.
Application of this principle not confined to contexts in which the individual to be
expelled faces a real risk of being exposed to forms of treatment proscribed by Article 3
which are intentionally inflicted by public authorities in receiving State or by non-State
bodies when the public authorities in that State are unable to afford him appropriate
protection - Court must be able to apply Article 3 in other contexts so as to avoid
undermining the absolute character of the Article's protection.
Conditions which await applicant in St. Kitts do not in themselves breach standards of
Article 3 - respondent State has assumed responsibility for treating applicant since
August 1994 - applicant now reliant on medical and palliative care provided to him applicant has entered final stages of fatal illness - removal at this stage would hasten his
death and expose him to a real risk of dying under most distressing circumstances and
thus to inhuman treatment - no adequate medical treatment, no shelter, no family support
in receiving country.
Aliens who have served their prison sentences and are subject to expulsion cannot in
principle claim any entitlement to remain on territory of Contracting State in order to
continue to benefit from medical, social or other forms of assistance provided by that
Sate during their stay in prison.
However, in view of the very exceptional circumstances of case and the compelling
humanitarian considerations at stake, removal of applicant would violate Article 3.
Conclusion: violation if the applicant were to be removed (unanimously).
GÜLEÇ v. TURKEY (54/1997/838/1044) 27 July 1998: – alleged unlawful killing
by security forces during a demonstration and lack of an appropriate investigation
into the circumstances.
Turkey – alleged unlawful killing by security forces during a demonstration and lack of
an appropriate investigation into the circumstances.
II. ARTICLE 2 OF THE CONVENTION
A. The applicant’s son’s death
19
Reference to Court’s case-law concerning role of Commission in establishment of facts.
Case file had not revealed any reason to cast doubt on establishment of facts as set out in
Commission’s report.
Demonstration was far from peaceful – confronted with acts of violence which were,
admittedly, serious, security forces called for reinforcements and armoured vehicles were
deployed – allegation that shots were fired at crowd corroborated by fact that nearly all
wounded demonstrators had been hit in legs, which was perfectly consistent with ricochet
wounds from bullets with a downward trajectory which could have been fired from turret
of an armoured vehicle.
Use of force might have been justified in present case under paragraph 2 (c) of Article 2,
but a balance must be struck between aim and means – gendarmes had used a very
powerful weapon, apparently not having any batons, riot shields, water cannon, rubber
bullets or tear gas – lack of these all the more incomprehensible and unacceptable
because province of Sirnak was in a region where a state of emergency had been
declared, and where, at the material time, disorder could have been expected.
Question whether there were terrorists among demonstrators: Government produced no
evidence to support assertion.
Force used to disperse demonstrators, which had caused death of Ahmet Güleç, not
absolutely necessary within the meaning of Article 2.
Conclusion: violation (unanimously).
B. The investigation conducted by the national authorities
Reference to Court’s case-law concerning procedural obligation contained in Article 2
requiring Contracting States to conduct an effective investigation when individuals are
killed by State’s agents.
Authorities responsible for the investigation convinced that victim’s death was caused by
a shot fired by PKK terrorists but did not verify whether this was so.
Neither the prevalence of violent armed clashes nor the high incidence of fatalities could
displace the obligation under Article 2 to ensure that an effective, independent
investigation was conducted into deaths arising out of clashes involving the security
forces or, as in the present case, a demonstration, however illegal it might have been –
authorities had not complied with this obligation in present case.
Conclusion: violation (unanimously).
AERTS v. BELGIUM (61/1997/845/1051) 30 July 1998: applicant held, for seven
months of his total detention, in the psychiatric wing of an ordinary prison, rather
than in a social protection centre designated by the relevant mental health board
Belgium – applicant held, for seven months of his total detention, in the psychiatric wing
of an ordinary prison, rather than in a social protection centre designated by the relevant
mental health board
I. GOVERNMENT’S PRELIMINARY OBJECTIONS
A. Applicant’s lack of "victim" status
Applicant could claim to be a "victim" because fact that he had been detained for too long
in psychiatric wing of Lantin Prison had affected him directly.
Conclusion: objection dismissed (unanimously).
B. Late submission of the application
20
Court of Cassation Legal Aid Board’s decision, which had put an end to action brought
by applicant and made it impossible for any subsequent compensation claim to succeed,
was final decision from which six-month limit began to run – objection could not be
upheld.
Conclusion: objection dismissed (unanimously).
II. ARTICLE 5 § 1 OF THE CONVENTION
Length of provisional detention pending transfer not specified by any statutory or other
provision – nevertheless, necessary to determine whether, in view of detention order’s
purpose, continuation of provisional detention for seven months could be regarded as
lawful – documents produced before Court showed sufficiently clearly that psychiatric
wing in question could not be regarded as an institution appropriate for the detention of
persons of unsound mind – proper relationship between aim of detention and conditions
in which it took place therefore deficient.
Conclusion: violation (unanimously).
III. ARTICLE 5 § 4 OF THE CONVENTION
In circumstances of case, application for injunction lodged by applicant satisfied the
requirements of Article 5 § 4.
Conclusion: no violation (unanimously).
IV. ARTICLE 6 § 1 OF THE CONVENTION
Present case did not involve "determination of a criminal charge" – on other hand,
outcome of proceedings was decisive for civil rights – dispute concerned lawfulness of a
deprivation of liberty – the right to liberty, which was at stake, is a civil right.
Applicant could legitimately apply to Legal Aid Board with a view to an appeal on points
of law since in civil cases Belgian law required representation by counsel before Court of
Cassation – by refusing application, Board impaired the very essence of the applicant’s
right to a tribunal.
Conclusion: violation (unanimously).
V. ARTICLE 3 OF THE CONVENTION
Living conditions on psychiatric wing at Lantin did not seem to have had such serious
effects on applicant’s mental health as would bring them within scope of Article 3 – not
conclusively established that applicant suffered treatment that could be classified as
inhuman or degrading.
Conclusion: no violation (seven votes to two).
VI. ARTICLE 50 OF THE CONVENTION
A. Non-pecuniary damage
Applicant must have suffered a certain amount of non-pecuniary damage which the
finding of the breaches concerned was not in itself sufficient to make good –
compensation awarded on an equitable basis.
B. Costs and expenses
Reimbursed on an equitable basis.
21
ANDRONICOU AND CONSTANTINOU v. CYPRUS
(86/1996/705/897) 9 October 1997: alleged unlawful killing of a young couple by
officers of a special police unit in the course of a rescue operation. Court only
concerned to establish whether in circumstances authorities had taken appropriate
care in planning and control of rescue operation.
Cyprus – alleged unlawful killing of a young couple by officers of a special police
unit (MMAD) in the course of a rescue operation
I. GOVERNMENT'’S PRELIMINARY OBJECTIONS
II. ARTICLE 2 OF THE CONVENTION
Reiteration of Court’s case-law on principles governing use of lethal force by
security forces.
B. Planning and control of rescue operation
Court only concerned to establish whether in circumstances authorities had taken
appropriate care in planning and control of rescue operation including decision to
deploy MMAD officers to minimise any risk to lives of couple – not appropriate to
assess alternative ways of handling situation with benefit of hindsight.
Authorities conducted prolonged negotiations in knowledge that were dealing with a
young couple - negotiations carried out in a reasonable manner in view of
circumstances – however, as situation became increasingly fraught with danger
authorities could reasonably conclude that decisive action needed to bring an end
to incident in view of failure of negotiations phase – justified fear that young man,
known to be armed, would kill his fiancée at midnight and commit suicide – decision
to send in MMAD officers only taken after careful reflection and high level
consultation.
Although officers armed with machine guns it was never intended that these
weapons be used – officers given clear instructions to use only proportionate force
and to open fire only if life of young woman or their own lives in danger.
Not shown in view of above considerations that rescue operation had not been
planned and organised in a way which minimised to greatest extent possible any
risk to lives of couple.
C. Administration of force
Officers’ use of force was direct result of young man’s decision to open fire when
rescue team entered flat – officers had to take split-second decisions to save life –
officers’ honest, even if mistaken, belief at the time that young man constituted a
real and immediate danger to life of young woman and to lives of officers – valid
22
reasons for this belief in circumstances and for officers’ conclusion that it was
necessary to kill young man to save young woman’s life as well colleagues’ lives clearly regrettable that Officers 2 and 4 used as much fire power as they did –
however, Court cannot with detached reflection substitute its own assessment of
situation for that of officers confronted with agonising dilemma and the need to
neutralise any risk presented by young man to lives of others.
Use of lethal force in circumstances did not exceed what was absolutely necessary
for purposes of defending life of young woman and lives of officers.
Conclusion: no violation (5 votes to 4).
ENGLAND
Summary and photocopies: This section requires elaboration.
Torture:
Criminal Justice Act 1988 s134:
offence committed by officials.
Cruel and Unusual Punishment:
breach on the prohibition in the Bill of Rights 1689 gives rise to action in damages:
Williams v Home Office 1981 All ER: may also apply for judicial review iro prison
conditions.
Objective test:
standards current in society: R v Sec of State for the Home Dept, ex parte Herbage 1987
QB.
Violations committed by officials
= battery in tort: R v Deputy Governor of Parkhurst Prison, ex parte Hague 1990 ALL
ER
CANADA
Constitution Act, 1982
Legal Rights
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.
8. Everyone has the right to be secure against unreasonable search or seizure.
12. Everyone has the right not to be subjected to any cruel or unusual treatment or
punishment.
23
R. v. Stillman [1997] 1 S.C.R. 607: Police taking hair samples, buccal swabs
and teeth impressions from accused without his consent while he was in custody
-- Whether accused's right to security of person infringed in manner not
consistent with principles of fundamental justice -- Security of person-- Search
and seizure-- Admissibility of evidence
ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK
Criminal law -- Power of search incidental to arrest -- Scope of power -- Police taking
hair samples, buccal swabs and teeth impressions from accused without his consent while
he was in custody -- Whether common law power incidental to arrest can be extended to
permit seizure of bodily samples and impressions.
Constitutional law -- Charter of Rights -- Search and seizure -- Police taking hair
samples, buccal swabs and teeth impressions from accused without his consent while he
was in custody -- Whether accused's right against unreasonable search and seizure
infringed -- Canadian Charter of Rights and Freedoms, s. 8.
Constitutional law -- Charter of Rights -- Search and seizure -- Accused in custody not
consenting to taking of any bodily samples -- Police seizing from wastebasket in police
station discarded tissue used by accused to blow his nose -- Whether accused's right
against unreasonable search and seizure infringed -- Canadian Charter of Rights and
Freedoms, s. 8.
Constitutional law -- Charter of Rights -- Security of person -- Fundamental justice -Police taking hair samples, buccal swabs and teeth impressions from accused without his
consent while he was in custody -- Whether accused's right to security of person infringed
in manner not consistent with principles of fundamental justice -- Canadian Charter of
Rights and Freedoms, s. 7.
Constitutional law -- Charter of Rights -- Admissibility of evidence -- Police taking hair
samples, buccal swabs and teeth impressions from accused without his consent while he
was in custody -- Police also seizing from wastebasket in police station discarded tissue
used by accused to blow his nose -- Whether evidence obtained in violation of accused's
Charter rights -- If so, whether evidence should be excluded -- Canadian Charter of
Rights and Freedoms, s. 24(2).
Constitutional law -- Charter of Rights -- Admissibility of evidence -- Proper approach to
s. 24(2) of Canadian Charter of Rights and Freedoms when evidence affects fairness of
trial -- Whether such evidence must be excluded regardless of other factors.
The accused, who was 17 years old at the time, was arrested in 1991 for the brutal murder
of a teenage girl. He was the last person seen with the victim on the night of the crime.
He arrived at his home around midnight, cold, shaken and wet from the upper thighs
down. He was cut above one eye, and had mud and grass on his pants. He explained that
he had been in a fight with five Indians but this explanation, as well as his account of
where he had last seen the victim, varied over time. The victim died from wounds to the
head. Semen was found in her vagina and a human bite mark had been left on her
abdomen. At the police station, the accused's lawyers informed the police by letter that
the accused was not consenting to provide any bodily samples, including hair and teeth
imprints, or to give any statements. Once the lawyers left, police officers took, under
24
threat of force, scalp hair samples from the accused and he was made to pull some of his
own pubic hair. Plasticine teeth impressions were also taken. A police officer then
interviewed the accused for an hour in an attempt to obtain a statement. The accused
sobbed throughout the interview and, after being permitted to call his lawyer, he went to
the washroom escorted by an officer where he used a tissue to blow his nose. He threw
the tissue in the wastebasket. The tissue containing mucous was seized by the officer and
used for DNA testing. The accused was subsequently released but was arrested again
several months later. At that time, a dentist took new impressions of the accused's teeth
without his consent in a procedure lasting two hours. More hair was taken from the
accused, as well as a saliva sample and buccal swabs.
Following a voir dire held to determine the admissibility of certain evidence, the trial
judge found that the hair samples, buccal swabs and teeth impressions had been obtained
in violation of s. 8 of the Canadian Charter of Rights and Freedoms but concluded that
the evidence was nevertheless admissible. With respect to the tissue containing mucous,
he found that it had not been obtained in violation of s. 8 and should thus be admitted.
The accused was later convicted by a jury of first degree murder. The majority of the
Court of Appeal upheld the trial judge's ruling and affirmed the verdict.
Held (L'Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be
allowed and a new trial ordered at which the hair samples, buccal swabs and dental
impressions should be excluded.
Per Lamer C.J. and La Forest, Sopinka, Cory and Iacobucci JJ.: The taking of the hair
samples, buccal swabs and teeth impressions infringed s. 8 of the Charter. The bodily
samples and impressions were not seized pursuant to the Criminal Code, which at the
time of the accused's arrest did not authorize the search of a person or the seizure of parts
of the body. Nor were they seized pursuant to the common law power of search incidental
to a lawful arrest. The accused's arrest was lawful since the police officers, subjectively,
were under the impression that they had reasonable and probable grounds to believe that
the accused had committed the murder and, from an objective point of view, there were
good and sufficient grounds for the officers to have reached that conclusion. However,
the common law power of search incidental to arrest does not extend beyond the purpose
of protecting the arresting officer from armed or dangerous suspects or of preserving
evidence that may go out of existence or be otherwise lost. The search conducted in this
case went far beyond the typical "frisk" search which usually accompanies an arrest. The
taking of bodily samples and the making of dental impressions were highly intrusive.
Further, despite the Young Offenders Act requirements that a parent or counsel be present
when a suspected young offender is being interviewed, in the absence of any adult
counsellor and contrary to the specific instruction of his lawyers the police interviewed
the accused at length and by threat of force took bodily samples and dental impressions.
This was the abusive exercise of raw physical authority by the police. The common law
power of search incidental to arrest cannot be so broad as to encompass the seizure
without valid statutory authority of bodily samples in the face of a refusal to provide
them. These samples are usually in no danger of disappearing. If that power is so broad,
then the common law rule itself is unreasonable, since it is too broad and fails to properly
balance the competing rights involved. It is clear in this case that the accused's right to be
free from unreasonable search and seizure was seriously violated. Since the search and
25
seizure of the bodily samples was not authorized by either statutory or common law it
could not have been reasonable.
The taking of the hair samples, buccal swabs and dental impressions also infringed s. 7 of
the Charter since it violated the right to security of the person in a manner not consistent
with the principles of fundamental justice. It was the ultimate invasion of the accused's
privacy and breached the sanctity of the body which is essential to the maintenance of
human dignity. Police actions taken without consent or authority which intrude upon an
individual's body in more than a minimal fashion violate s. 7.
The taking of the discarded tissue infringed s. 8 of the Charter. Where an accused who is
not in custody discards an item offering potentially valuable DNA evidence, the police
may ordinarily collect and test the item without any concern about consent since, in the
circumstances, the accused abandoned the item and ceased to have a reasonable
expectation of privacy in it. The situation is different, however, when an accused is in
custody. Whether the circumstances are such that an accused abandoned an item and
relinquished any privacy interest in it will have to be determined on the particular facts
presented in each case. Here, the accused had announced through his lawyers that he
would not consent to the taking of any samples of his bodily fluids. The police were
aware of his decision but nevertheless took possession of the tissue discarded by the
accused while he was in custody. In these circumstances the seizure was unreasonable.
The accused's expectation of privacy in this instance, although lower after his arrest, was
not so low as to permit the seizure of the tissue. The privacy expectation should not be
reduced to such an extent as to justify seizures of bodily samples without consent,
particularly for those who are detained while they are still presumed to be innocent.
The primary aim and purpose of considering the trial fairness factor in the s. 24(2)
analysis is to prevent an accused person whose Charter rights have been infringed from
being forced or conscripted to provide evidence in the form of confessions, statements or
bodily samples for the benefit of the state. Thus, when the trial fairness factor is being
considered, it is necessary to classify the evidence as conscriptive or non-conscriptive
based upon the manner in which the evidence was obtained. If the accused was not
compelled to participate in the creation or discovery of the evidence, the evidence will be
classified as non-conscriptive. Its admission will not render the trial unfair and the court
will proceed to consider the seriousness of the breach and the effect of exclusion on the
repute of the administration of justice. If the evidence, obtained in a manner which
violates the Charter, involved the accused being compelled to incriminate himself either
by a statement or by the use as evidence of his body or of bodily substances, it will be
classified as conscriptive evidence. The unauthorized use of a person's body or bodily
substances is just as much compelled "testimony" that could render the trial unfair as is a
compelled statement. The security of the body is thus as worthy of protection from state
intrusion aimed at compelled self-incrimination as are statements. If the evidence is
found to be conscriptive evidence, which in the case of statements includes derivative
evidence, and the Crown demonstrates on a balance of probabilities that it would have
been discovered by alternative non-conscriptive means -- where an independent source
exists or discovery was inevitable -- then its admission will generally not render the trial
unfair. However, the seriousness of the Charter breach and the effect of exclusion on the
repute of the administration of justice will have to be considered. If the evidence is
conscriptive and the Crown fails to demonstrate on a balance of probabilities that the
26
evidence would have been discovered by alternative non-conscriptive means, then its
admission will render the trial unfair. The court, as a general rule, will exclude the
evidence without considering the seriousness of the breach or the effect of exclusion on
the repute of the administration of justice. This must be the result since an unfair trial
would necessarily bring the administration of justice into disrepute.
Here, in considering how the admission of the evidence would affect the fairness of the
trial, the trial judge erred in concluding that the hair samples, saliva and dental
impressions existed independently of any Charter breach and were thus admissible. The
accused's bodily samples and impressions existed as "real" evidence but the police, by
their words and actions, compelled the accused to provide evidence from his body. This
evidence constituted conscriptive evidence. The impugned evidence would not have been
discovered had it not been for the conscription of the accused in violation of his Charter
rights and no independent source existed by which the police could have obtained the
evidence. It follows that its admission would render the trial unfair. This finding is
sufficient to resolve the s. 24(2) issue as the evidence must be excluded.
In any event, the Charter violations pursuant to which this evidence was obtained were of
a very serious nature. The police acted with blatant disregard for the fundamental rights
of the accused. Notwithstanding his express refusal to provide bodily samples or to give a
statement, the police purposely waited until his lawyers had left to proceed, through the
use of force, threats and coercion, to take his bodily samples and to interrogate him in an
effort to obtain a statement. The police were also aware that the accused was a young
offender at the time, and that he was entitled to the special protection provided by the
Young Offenders Act. Finally, the fact that the police rode roughshod over a young
offender's refusal to provide his bodily samples would certainly shock the conscience of
all fair minded members of the community. The admission of the evidence would thus
bring the administration of justice into disrepute.
The tissue containing the mucous, however, should not be excluded. The police did not
force, or even request, a mucous sample from the accused. Although the police acted
surreptitiously in disregard for the accused's explicit refusal to provide them with bodily
samples, the violation of the accused's Charter rights with respect to the tissue was not
serious. The seizure did not interfere with the accused's bodily integrity, nor cause him
any loss of dignity. In any event, the police could and would have obtained the discarded
tissue. It was discoverable and the administration of justice would not be brought into
disrepute if the evidence obtained from the mucous sample were to be admitted.
Per Major J.: Cory J.'s reasons excluding the conscripted evidence obtained from hair
samples, buccal swabs and dental impressions were agreed with. The tissue containing
the mucous sample, however, was not obtained in violation of s. 8 of the Charter. The
accused voluntarily and intentionally threw the tissue into the washroom wastebasket in
full view of the officer. By doing so he abandoned the tissue, and lost any expectation of
privacy he might have had in regard to it. Consent is not an issue where evidence is
abandoned even when the accused is in custody. Where there is no reasonable
expectation of privacy, there is no search, and no requirement of informed consent. Since
no violation of the Charter occurred with regard to the tissue, there is no need to enter
into a s. 24(2) inquiry.
Per McLachlin J. (dissenting): The taking of bodily samples falls to be decided under s. 8
of the Charter, not under s. 7. Section 7 of the Charter does not purport to enlarge the
27
common law principle against self-incrimination. The common law as adopted and
applied in Canada confined the principle of fundamental justice known as the principle
against self-incrimination to testimonial evidence. For good and principled reasons, this
principle has never extended to physical or "real" evidence. It follows that the principle
against self-incrimination which may be read by inference into s. 7 does not apply to real
evidence, except in the case of real evidence derivative from testimonial evidence which
would not have been discovered but for the accused's involuntary testimony. All other
real evidence falls to be treated under the guarantee against unreasonable search and
seizure in s. 8. To hold otherwise would extend the principle of self-incrimination not
only beyond its recognized ambit in Canada, but beyond its limits in comparable justice
systems throughout the world.
The taking of the accused's hair samples, buccal swabs and dental impressions violated s.
8 of the Charter. While the common law permits relatively non-intrusive procedures to
take evidence from a suspect in custody for purposes of identification, the invasiveness of
the searches and seizures leading to the taking of the bodily samples and dental
impressions, and the seriousness of the incursion on his privacy and dignity they entailed,
place them outside the scope of lawful search incidental to arrest. No emergency was
alleged in this case and the searches were not necessary to protect the immediate safety of
the police or the public.
The taking of the tissue, however, did not violate s. 8. In discarding the tissue, the
accused abandoned it and lost any privacy interest in the tissue that he may have had. The
taking of the tissue was not a search and the requirement of the accused's consent did not
apply. Although the tissue was taken while the accused was in custody, his right not to
incriminate himself was not violated since the privilege against self-incrimination does
not apply to real evidence. Unless it is derivative from testimonial evidence, real
evidence falls to be considered under the rubric of search and seizure. While it is true that
the samples may necessarily be created as a result of the arrest and detention, the fact
remains that the bodily state to which they attest and which gives them their significance
is not created by the detention. It has a real existence apart from the detention, which
merely provides an opportunity to ascertain that bodily state.
The test for the admission of evidence where a Charter breach is alleged requires the
judge to conduct a two-part inquiry. The first step is to determine whether the evidence
was taken in a manner which infringed the accused's Charter rights. If so, the judge must
go on to consider whether, as a result of the infringement, the evidence should be
excluded under s. 24(2) of the Charter. Section 24(2) introduces a balancing process. The
judge must consider all the circumstances of the case and, in light of them, balance the
effect of admitting the evidence on the repute of the administration of justice against the
effect of rejecting it. In the end the judge must ask which will better serve the repute of
the system of justice on the particular facts of the case -- admission or exclusion. The
three classes of factors set out in Collins -- factors relevant to the (1) fairness of the trial,
(2) seriousness of the violation, and (3) effect of excluding the evidence -- are simply a
convenient way of considering the various "circumstances" which may need to be taken
into account in a particular case. The first two groups relate to disrepute to the
administration of justice which may arise from admission, the third group to disrepute
which may arise from exclusion of the evidence. So long as all are considered, the
balancing task imposed by s. 24(2) will be discharged.
28
The framers of the Charter did not intend s. 24(2) to act as an automatic exclusionary or
quasi-exclusionary rule and, accordingly, the view that any evidence which affects the
fairness of the trial must be excluded under s. 24(2) should be rejected. First, it runs
counter to the spirit and wording of s. 24(2), which requires that judges in all cases
balance all factors which may affect the repute of the administration of justice, and
elevates the factor of trial unfairness to a dominant and in many cases conclusive status.
Second, it rests on an expanded and erroneous concept of self-incrimination or
conscription which equates any non-consensual participation by or use of the accused's
body in evidence gathering with trial unfairness. Third, it erroneously assumes that
anything that affects trial fairness automatically renders the trial so fundamentally unfair
that other factors can never outweigh the unfairness, with the result that it becomes
unnecessary to consider other factors.
Here, the trial judge made a careful review of all relevant factors, applied s. 24(2) in the
fashion directed in Collins and concluded that the accused's hair, buccal swabs and dental
impressions taken contrary to s. 8 of the Charter were admissible under s. 24(2) -- a
conclusion affirmed by the majority of the Court of Appeal. Where the courts below have
properly considered all the factors relevant to the s. 24(2) determination, this Court will
not interfere. In any event, when all the circumstances are considered together, it cannot
be concluded that the trial judge and the majority of the Court of Appeal erred in finding
that the exclusion of the evidence would do more harm to the repute of the administration
of justice than its admission.
Since the taking of the tissue did not violate s. 8 of the Charter, it is unnecessary to
consider its admissibility under s. 24(2).
Per L'Heureux-Dubé J. (dissenting): For the reasons given by Cory J., the arrest was a
lawful one. While the search and seizure at issue was clearly not necessary in order to
protect the accused, the police or the public, they were authorized by law under the
common law search power incidental to arrest. The right to secure evidence as an
incident of arrest does not depend on the existence of urgency or exigent circumstances
and may extend to the taking of bodily samples and impressions. The following
guidelines strike a proper balance between society's interest in detecting and punishing
crime and the individual's interests in personal privacy and autonomy over his own body
where the taking of bodily samples or impressions occurs as an incident to arrest: (1) the
police must exercise their discretion to conduct the search given all of the circumstances;
(2) the search must be for a valid objective in pursuit of the ends of criminal justice
without running counter to the general objectives of the proper administration of justice;
(3) consideration must be given to the intrusiveness involved in the search: the more
intrusive, the higher the threshold for finding that the taking of bodily samples or
impressions is both justified and conducted in a reasonable manner in given
circumstances; (4) the police must have reasonable and probable grounds to conduct the
search; (5) the search must be predicated on sufficiently important circumstances; those
circumstances will generally be established where: (a) it is impracticable to obtain a
warrant to secure the desired evidence; (b) such evidence cannot be obtained by a less
intrusive means; (c) there is no alternative evidence available; (d) the offence for which
the arrest was made is a serious one; and (e) public policy is served by the type of search
at issue. Finally, the manner in which the search is conducted must not be abusive or
unreasonable given the totality of the circumstances. A search which does not comply
29
with these requirements could be characterized as unreasonable at common law as well as
under s. 8 of the Charter. The determination of whether a search occurred legally as an
incident to arrest will depend upon a balancing of these factors.
Here, the search and seizure of the evidence at issue was legal as incidental to arrest and
conducted in a reasonable manner in the circumstances of this case given the seriousness
of the offence as well as the unavailability of any legal authorization procedure at the
time of the accused's arrest. The evidence indicates that the police believed that, in all of
the circumstances, it was necessary to obtain bodily substances and dental impressions
from the accused in order to apply the law effectively. They could not have proceeded
with the murder charge without the DNA evidence or the bite-mark analysis of his teeth
impressions. The search and seizure took place in order to achieve a valid objective -- the
discovery of evidence which could have either incriminated or established the innocence
of the accused. The type of search and seizure at issue constituted minimal affronts to the
accused's bodily integrity. Although the taking of pubic hair and the making of dental
impressions are more intrusive, on the whole, given that the accused was made to pull out
some of his own pubic hair himself and that the dental impressions were made by a
dentist according to professional standards, the taking of those specimens is not of such
an offensive character in the present circumstances that it would constitute an
unreasonable search. In this regard, the accused's refusal to provide any bodily substance
and the absence of his lawyers while the specimens were seized are irrelevant in
assessing whether the police reasonably exercised their power of search incidental to
arrest. Once a search is found to fall within the scope of such power, the police may, in
accordance with these guidelines, proceed to search a lawfully arrested person. As well,
while the accused's bodily substances and teeth impressions could have been obtained
later, this is not a relevant consideration. Further, the police had reasonable and probable
grounds for taking bodily samples and dental impressions, given the results of the
victim's autopsy which revealed semen in her vagina and a human bite mark on her
abdomen. The evidence discloses circumstances of sufficient importance to justify the
taking. The police could not have obtained a warrant to secure the type of evidence they
sought and the accused's hair, saliva and dental impressions could not have been obtained
by less intrusive means. Given the absence of any witness to the murder, there was no
alternative evidence that the accused committed this serious offence. Finally, public
policy is served by the type of search at issue. Where indicia such as bodily fluids or a
human bite mark are found on the victim's body, the possibility of resorting to DNA
typing analysis or forensic odontology serves society's substantial interest in deterring
such crimes. Since there was no breach of the accused's s. 8 Charter rights in the
obtention of the evidence, such evidence was admissible at trial.
Given the conclusion that the manner in which the police obtained the evidence was, in
fact, lawful, it follows that the search was also in accord with the principles of
fundamental justice and did not violate s. 7 of the Charter.
The tissue containing the mucous was not obtained in violation of s. 8 of the Charter
since the accused could not claim any right of privacy in this specimen. Consequently,
this evidence was also admissible at trial.
Although it is not necessary to deal with s. 24(2) of the Charter, there is general
agreement with McLachlin J.'s analysis. The classification of evidence under the trial
fairness aspect of the s. 24(2) analysis in terms of "non-conscriptive `real' evidence" and
30
"conscriptive evidence", which includes "derivative evidence", with their possible
extension to all kinds of unforeseen situations, is an unfortunate development. Trial
fairness concern arises solely where the accused is compelled as a result of a Charter
breach to participate in the creation or discovery of evidence which tends to establish his
guilt by his own admission, or based upon his own communication. Evidence which
affects the fairness of the trial must not inevitably be excluded under s. 24(2). A proper
consideration of "all the circumstances" demands a balancing of each set of factors set
out in Collins.
Per Gonthier J. (dissenting): The reasons of L'Heureux-Dubé J. were concurred in. There
is also agreement with the reasons of McLachlin J. as to the scope of the principle of selfincrimination and the proper analytical approach to the determination of admissibility of
evidence under s. 24(2) of the Charter.
R. v. Sarson [1996] 2 S.C.R. 223: Prerogative writs -- Habeas corpus -Accused convicted of murder and sentenced to life imprisonment without
eligibility for parole for 15 years -- Accused convicted under provision
subsequently struck down as unconstitutional -- Whether accused`s continued
detention gives rise to right to habeas corpus.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Criminal law -- Prerogative writs -- Habeas corpus -- Accused convicted of murder
and sentenced to life imprisonment without eligibility for parole for 15 years -- Accused
convicted under provision subsequently struck down as unconstitutional -- Whether
accused`s continued detention gives rise to right to habeas corpus.
While driving home from work in the early morning hours, the victim stopped on the
side of a downtown street to offer assistance to a fellow motorist in a disabled motor
vehicle. When he emerged from his car to help the motorist, the accused and two
accomplices waylaid him and forced him back into his vehicle. As the accused and his
accomplices drove the victim away in his car, witnesses could hear the sound of a
gunshot fired within the car. The victim's body was eventually discovered in an isolated
area. The accused's coat was subjected to forensic examination, which revealed five
specks of tissue which were consistent with the victim's body. In addition, the legs of the
accused's pants were found to be wet, as if he had been walking in an area covered with
snow such as the one in which the victim's body was found. One of the accused's
accomplices eventually confessed to having fired the fatal shot into the victim's head.
Because the accused was a party to the offences of unlawful confinement and robbery
which led to the victim's death, he was clearly guilty of constructive murder under s.
213(d) of the Criminal Code. The accused pleaded guilty to the lesser included offence of
second degree murder, and was sentenced to life imprisonment without the potential
31
for parole for 15 years. Eleven months later this Court rendered its judgment in
Vaillancourt, striking down s. 213(d) as unconstitutional. The accused's application
to the Court of Appeal to extend the time in which he could appeal his conviction and
sentence, on the basis that the provision under which he had been convicted was struck
down, was refused. The accused then brought an application for habeas corpus with
certiorari in aid, seeking various orders quashing his warrant of committal and declaring
him immediately eligible for parole. This application was refused by the Ontario Court
(General Division), and that decision was upheld by the Court of Appeal.
Held: The appeal should be dismissed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.:
Where a court has exceeded its jurisdiction in ordering the imprisonment of the accused,
resort may be had to a writ of habeas corpus to secure the release of the wrongly
imprisoned person. Since a challenge to the jurisdiction of a convicting court is a very
serious matter, the common law permitted the issuance of the writ of habeas corpus only
in certain limited cases. The jurisdiction of a superior court was insulated from collateral
attacks and could only be questioned on appeal. In the instant appeal, the accused
properly admitted that habeas corpus would not be available under the rules of the
common law. In addition to these bars to habeas corpus, the common law has imposed
strict limitations on the ability of an accused to attack his conviction on the basis of
subsequently decided judicial authorities. Unless the accused is still "in the judicial
system", an accused is unable to reopen his or her case and rely on subsequently decided
judicial authorities, even where the provision under which the accused was convicted
is subsequently declared unconstitutional. Finality in criminal proceedings is of the
utmost importance but the need for finality is adequately served by the normal
operation of res judicata. Since the accused in this case is no longer able to appeal his
conviction, he is not "in the judicial system" and is therefore not entitled to apply for
habeas corpus. The doctrine of res judicata is a conclusive answer to an accused's
collateral attack on his or her conviction, such as an application for habeas corpus. All
such collateral attacks will fail on the ground that the accused is in custody pursuant to
the judgment of a court of competent jurisdiction.
In the alternative, on the assumption that the appropriate characterization of the
accused's application is an attack on his alleged unlawful detention, his continued
detention pursuant to a conviction for second degree murder does not amount to a breach
of the tenets of fundamental justice within the meaning of s. 7 of the Canadian Charter of
Rights and Freedoms. Although the accused's conviction was entered under a
constitutionally infirm provision of the Code, it is clear that his involvement in the
victim's death could easily have supported a conviction under several Criminal Code
provisions aside from s. 213(d). The combined effect of the evidence is to make it
virtually certain that the accused was at the scene of the execution-style killing,
supporting his culpability for the murder of the victim. The force of the evidence was
indeed so great that the accused pleaded guilty to the offence of second degree murder,
and his counsel agreed to the sentence of life imprisonment without parole for 15 years,
which is greater than the minimum sentence required. The evidence makes it clear that
32
the guilty plea entered was the result of an agreement between counsel. Had the accused
been convicted under another Code provision, his sentence might well have been greater
than the one he in fact received. The appropriate remedy for persons who are imprisoned
pursuant to a law subsequently declared unconstitutional, who have exhausted their
appeals and are unable to show that their sentence fails to accord with the Charter, is an
appeal to the royal prerogative of mercy.
Per L'Heureux-Dubé, Gonthier and McLachlin JJ.: Sopinka J.'s result and analysis of
the doctrine of res judicata were agreed with. Even though the accused's application for
habeas corpus is formulated as a challenge to the legality of his incarceration, it is
predicated on the unconstitutionality of the crime of which he was convicted, and
therefore amounts to an impermissible collateral attack against his conviction. The
statements made by Sopinka J. in obiter concerning habeas corpus under the Charter
should not be taken to mean that when an offence is declared unconstitutional, persons
who were previously convicted of the offence have a potential s. 7 remedy against their
continued incarceration depending on the strength of the evidence against them. Any
application for habeas corpus in such circumstances would be precluded by res judicata.
The practical problems associated with reopening convictions make it essential to have a
rule which permits an accused to contest his conviction throughout the appeals process,
but which considers the matter res judicata once all appeals have been exhausted.
R. v. Montour [1995] 2 S.C.R. 416: Arbitrary detention or imprisonment -Random stopping of accused's vehicle by police -- Trial judge finding that random
stopping of vehicle violated s. 9 of Canadian Charter of Rights and Freedoms
and excluding evidence -- Accused acquitted -- Court of Appeal setting aside
acquittals -- Acquittals restored.
Present: Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK
Constitutional law -- Charter of Rights -- Arbitrary detention or imprisonment -Random stopping of accused's vehicle by police -- Trial judge finding that random
stopping of vehicle violated s. 9 of Canadian Charter of Rights and Freedoms and
excluding evidence -- Accused acquitted -- Court of Appeal setting aside acquittals
-- Acquittals restored.
APPEAL from a judgment of the New Brunswick Court of Appeal (1994), 150
N.B.R. (2d) 7, 385 A.P.R. 7, 5 M.V.R. (3d) 250, allowing the Crown's appeal from
the appellants' acquittals by Strange Prov. Ct. J. (1992), 129 N.B.R. (2d) 361, 325
A.P.R. 361, on charges of unlawful possession of tobacco. Appeal allowed and
acquittals restored.
33
1SOPINKA J. -- The appeal is allowed, the judgment of the New Brunswick Court
of Appeal is set aside, and the acquittals entered at trial are restored. Mr. Justice
Iacobucci will give the reasons of the Court.
2 IACOBUCCI J. -- Although we may differ with the trial judge in his
characterizing the Charter breach here as a serious one, in our view, the trial judge
made proper findings of fact based on the evidence before him, and committed no
error in stating and applying the governing principles of law. We therefore see no
reason why the New Brunswick Court of Appeal intervened to reverse the decision
of the trial judge.
R. v. Pontes [1995] 3 S.C.R. 44: Motor Vehicle Act provides that a person
convicted of an offence under certain sections of the Act is "automatically and
without notice" prohibited from driving a motor vehicle for 12 months -- creates
absolute liability offence -- Ignorance of the law
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Charter of Rights -- Fundamental justice -- Provincial motor
vehicle offence -- Absolute or strict liability -- Accused charged with driving motor
vehicle while prohibited -- Whether s. 94(1) of British Columbia Motor Vehicle Act, when
read in conjunction with s. 92, creates absolute liability offence which violates s. 7 of
Canadian Charter of Rights and Freedoms -- Ignorance of the law -- Notice.
Criminal law -- Provincial motor vehicle offence -- Absolute or strict liability -- Accused
charged with driving motor vehicle while prohibited -- Whether combined effect of ss.
94(1) and 92 of British Columbia Motor Vehicle Act creates absolute or strict liability
offence.
The accused was charged with driving a motor vehicle at a time when he was prohibited
from driving under s. 92 of the British Columbia Motor Vehicle Act, contrary to s. 94(1)
of that Act. Section 92 provides that a person convicted of an offence under certain
sections of the Act, including s. 94(1), is "automatically and without notice" prohibited
from driving a motor vehicle for 12 months. Section 94(1) provides that a person who
drives a motor vehicle on a highway while he is prohibited from driving under certain
sections of the Act, including s. 92, commits an offence and is liable to a fine and to
imprisonment. The accused was acquitted at trial. The trial judge found that s. 94(1), in
combination with s. 92, created an absolute liability offence for which imprisonment was
a penalty, thereby contravening s. 7 of the Canadian Charter of Rights and Freedoms.
Pursuant to s. 52 of the Constitution Act, 1982, the reference to s. 92 in s. 94(1) was
declared of no force or effect. The summary conviction appeal court and the Court of
Appeal upheld the trial judge's decision.
Held (La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal
should be dismissed.
34
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: The fundamental aspect of
the offence created by ss. 94(1) and 92 of the Motor Vehicle Act is that a person
convicted of the underlying offence is "automatically and without notice" prohibited from
driving a motor vehicle. The words "automatically and without notice" in s. 92 go far
towards establishing that this is an absolute liability offence. The removal in 1986 of s.
94(2), which provided that s. 94(1) was an absolute liability offence, does not change the
offence into one of strict liability since the situation has not been altered in any
significant manner. Furthermore, the defence of due diligence must be available to defend
a strict liability offence. When, as a result of the wording of the section, the only possible
defence an accused could put forward is his ignorance of the fact that his licence had
been suspended by the provisions of the provincial statute, which constitutes a mistake of
law and therefore is not available as a defence, an accused is denied the defence of due
diligence. Here, because the prohibition on driving in s. 92 is automatic and without
notice, s. 94(1) effectively prevents an accused who is unaware of the prohibition from
raising that defence. In those circumstances, the offence ought to be characterized as one
of absolute liability.
Nevertheless the absolute liability offence created by s. 94(1) and s. 92 does not
contravene the Charter. This conclusion flows from the application of s. 4.1 and of s.
72(1) of the British Columbia 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. 94(1) and 92 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.
The legislature could convert the offence to one of strict liability by permitting the
defence of due diligence to be raised. If there was any concern that those accused of the
offence would defend on the basis that they had no knowledge of its effect, a provision
requiring that notice be given of its consequences could be added.
In this case an order directing a new trial would ordinarily be the appropriate result. In
the present circumstances, however, to direct a new trial would be unfair and unduly
harsh to the accused, who has been brought before every level of court at the Crown's
instigation. This appeal was lodged solely to determine whether the offence in question
was one of absolute or strict liability. That question is now resolved and the appeal
should be dismissed.
Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): The Motor
Vehicle Act is public welfare or regulatory legislation. The impugned provisions are
aimed at keeping bad drivers off the road; they are not prohibitions which are "criminal in
the true sense". As a result, this offence is prima facie one of strict liability. Further, the
legislature has not clearly indicated that the offence created by the combination of ss. 92
and 94(1) is one of absolute liability. The phrase "automatically and without notice"
simply highlights that the 12-month statutory prohibition is to take effect immediately
and by operation of law without any requirement that notice be given by the
Superintendent of Motor Vehicles or received by a driver who is prohibited from driving
under the statute. An accused cannot seek solace in the failure to provide notice of the
applicable statutory prohibition, since ignorance of the law is never an excuse for
breaking the law. As well, the impugned provisions allow for the defences of reasonable
35
mistake of fact and due diligence. Accordingly, the prima facie characterization of this
public welfare legislation as being of strict liability is confirmed.
A strict liability offence requires the minimal mental element of negligence in order to
ground a conviction. Negligence consists in an unreasonable failure to know the facts
which constitute the offence, or the failure to be duly diligent to take steps which a
reasonable person would take. Since ignorance of the law is not an excuse for breaking
the law, due diligence consists in taking steps to fulfil a duty imposed by law and not in
the ascertainment of the existence of a statutory prohibition or its interpretation.
Exceptionally, where knowledge that conduct is prohibited is itself part of the mens rea,
the absence of knowledge provides a good defence.
Here, s. 92 creates the 12-month driving prohibition which is effective automatically and
without notice upon conviction of one of the underlying offences. The factual element
comprising the actus reus consists in the driving of a motor vehicle having previously
been convicted of one of the underlying offences. Since there is no mens rea specified, it
must be inferred from the actus reus and, because this is a regulatory offence, the mens
rea consists in negligence in relation to any of the elements of the actus reus, but not in
relation to the existence of this statutory prohibition or its interpretation, since that would
be ignorance or mistake of law. Consequently, a person charged with driving while under
a statutory prohibition can avoid conviction if he demonstrates, on the preponderance of
the evidence, that he made a reasonable mistake of fact as to the existence of his
conviction, or that he exercised due diligence to ascertain whether he had been convicted
of one of the underlying offences. Defences are available in relation to all the factual
elements of the actus reus, and this adequately meets the minimal constitutional
requirement of fault for a public welfare or regulatory offence such as driving while
under a statutory prohibition. Sections 92 and 94(1) of the Motor Vehicle Act are
therefore entirely consistent with s. 7 of our Charter without any further requirements.
Since the impugned provisions already allow for due diligence in relation to all the
factual elements of the actus reus, the due diligence called for by the majority,
presumably as a principle of fundamental justice under s. 7 of the Charter, to cure the
alleged constitutional deficiency in the provisions is nothing less than due diligence in
relation to the existence of a legislative prohibition pertaining to a regulated activity or its
interpretation -- that is, a defence of ignorance of the law. Our system of laws, however,
has long held as axiomatic that ignorance of the law is not an excuse for breaking the law.
This cornerstone of our law remains secure even after the passage of the Charter, and
there is no conflict between it and the principles of fundamental justice. To expand the
defence of due diligence to comprehend a defence of ignorance of the law undercuts the
mistake of law rule and will render many of our laws unenforceable; as a corollary, this
Court's decision in Molis appears to be impliedly overturned without any explanation.
Furthermore, the impugned prohibition is a regulatory offence incident to a licensed
activity. A regulated actor is deemed to have voluntarily accepted the terms and
conditions attaching to the privilege of participating in a regulated activity. As a result, he
cannot be described as morally innocent when he commits a regulatory offence. Finally, a
legislature may choose, as a matter of policy, to provide a defence of ignorance of the law
in relation to some, all or none of the statutory conditions of engaging in a regulated
activity. Such a policy decision remains a matter over which the relevant representative
body is entirely sovereign.
36
The provision of some form of notice of the law would convert the offence into one of
full mens rea, since the accused would then be driving with actual subjective knowledge
that he was prohibited under provincial legislation. Rather than an offence of full mens
rea, the province chose a solution appropriately tailored to the regulatory context: an
offence of strict liability. That solution adequately meets the exigencies of our Charter
and is therefore a valid policy choice of full force and effect without any further
requirement of notice.
Chan v. Canada (Minister of Employment and Immigration) [1995] 3 S.C.R.
593: Immigration -- Convention refugee -- Well-founded fear of persecution
because of membership in particular social group or political opinion -- Likelihood
of forced sterilization following breach of China's one-child policy -- Confession
as to involvement in pro-democracy movement -- Whether or not appellant had
well-founded fear of persecution for reasons of membership in a particular social
group (his family) or political opinion
Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Immigration -- Convention refugee -- Well-founded fear of persecution because of
membership in particular social group or political opinion -- Likelihood of forced
sterilization following breach of China's one-child policy -- Confession as to involvement
in pro-democracy movement -- Whether or not appellant had well-founded fear of
persecution for reasons of membership in a particular social group (his family) or
political opinion -- Whether or not sterilization a form of "persecution" within the
meaning of s. 2(1)(a) of the Immigration Act -- Whether or not persons facing forced
sterilization members of a "particular social group" -- Whether or not persons refusing
forced sterilization expressing a "political opinion" -- Immigration Act, R.S.C., 1985, c. I2, ss. 2(1) "Convention refugee", (a)(i), (ii), (b), 3(g), 19(1)(c).
Appellant sought Convention refugee status because of his fear of being forcibly
sterilized for a violation of China's one-child birth control laws. To be classified a
Convention refugee, the appellant had to establish that he had a well-founded fear of
persecution for reasons of membership in a particular social group (his family) or
political opinion. He had been visited at his restaurant on a number of occasions by the
Public Security Bureau (PSB) because of alleged involvement in the pro-democracy
movement and had signed a confession to this effect in July 1989. He had been visited at
home on five occasions by the PSB following the discovery of the second child in April
1990 and his wife lost her job because of the breach. To end these PSB visits appellant
submitted a written undertaking to undergo sterilization within three months. He then fled
China. Appellant alleged a fear of persecution by being forced to undergo sterilization.
He testified that since leaving, his family had suffered harassment from the PSB and that,
if returned to China, he might face arrest, imprisonment, long-term unemployment or
even murder. The Immigration and Refugee Board found that the appellant was not a
Convention refugee. It held that forced sterilization did not constitute a form of
persecution, so made no finding as to whether the appellant had a well-founded fear of
37
forced sterilization. The Federal Court of Appeal upheld the Board's decision. The issues
to be considered here included: (1) whether forced sterilization is a form of "persecution"
within the meaning of s. 2(1)(a) of the Immigration Act; (2) whether persons facing
forced sterilization are members of a "particular social group"; (3) whether those refusing
forced sterilization are expressing a "political opinion"; and (4) whether, assuming
persons who have a well-founded fear of sterilization for violating China's one-child
policy are eligible to be considered Convention refugees, the appellant has a wellfounded fear of forced sterilization or of other persecution.
Held (La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting): The appeal should be
dismissed.
Per Sopinka, Cory, Iacobucci and Major JJ.: A person facing forced sterilization was
assumed (without its being decided) to be a member of a particular social group. The
claimant, to establish a well-founded fear of sterilization, must demonstrate subjective
fear persecution and establish that this fear is well-founded in the objective sense, both on
a balance of probabilities.
A refugee claimant must establish to the Board's satisfaction that the alleged fear exists in
his or her mind in order to meet the subjective aspect of the test for a well-founded fear of
persecution. Normally the claimant's evidence will be sufficient to meet the subjective
aspect of the test where the claimant is found to be a credible witness and his or her
testimony is consistent. Here, appellant's testimony, even with respect to his own fear of
forced sterilization, was equivocal and inconsistent at times.
The appellant did not meet the burden of proof on the objective aspect of the test.
Evidence with respect to the enforcement procedures used within a claimant's particular
region at the relevant time was not presented to the Board. Such evidence, if not available
in documentary form, can be established through testimony with respect to similarly
situated individuals. Appellant provided neither. Nor did he produce any evidence that
the forced sterilization is inflicted upon men in his area. In fact, the documentary
evidence produced by the appellant strongly suggested that penalties for breach of the
one-child policy only applied against women. Then, too, the local authorities had taken
no action to enforce appellant's signed consent to sterilization even though more than a
year had lapsed and the fine levied for the breach of the birth control laws had still not
been paid and, indeed, had been reduced. Absent any evidence to establish that his
alleged fear of forced sterilization was objectively well-founded, the Board was unable to
determine that the appellant had a well-founded fear of persecution in the form of a
forced sterilization. The issue of whether or not the forced sterilization was related to the
appellant's alleged involvement with the pro-democracy movement was not raised by the
appellant at the Board level or on appeal and was not before this Court.
Per La Forest, L'Heureux-Dubé and Gonthier JJ. (dissenting): The Court could not safely
decide whether or not there was evidence on which the Board could conclude that the
appellant was a member of a particular group. The matter should be remitted back to the
Board to be decided in accordance with the United Nations High Commissioner for
Refugees Handbook on Procedures and Criteria for Determining Refugee Status (the
"UNHCR Handbook"). Using these guidelines for establishing the facts of a given case, a
determination could be made as to whether a Convention refugee was entitled to any
benefit of the doubt regarding his story.
38
Here, the appellant's account of events so closely mirrors the known facts concerning the
implementation of China's population policy that, given the absence of any negative
finding as to the credibility of the appellant or of his evidence, his quite plausible account
is entitled to the benefit of any doubt that may exist. Sections of his testimony should not
be seized upon in isolation. Such a technique is antithetical to the guidelines of the
UNHCR Handbook. In light of these explicit guidelines, Canada's refugee burden should
not be thwarted by an unduly stringent application of exacting legal proof that fails to
take account of the contextual obstacles customary to refugee hearings.
The implementation of China's one-child policy, through sterilization by local officials,
can constitute a well-founded fear of persecution. The alleged persecution does not have
to emanate from the state itself to trigger a Convention obligation. Serious human rights
violations may well issue from non-state actors or from subordinate state authorities if the
state is incapable or unwilling to protect its nationals from abuse. Determination of the
precise degree of involvement by the Chinese government was neither necessary nor
possible from the evidentiary record.
When the means employed place broadly protected and well understood basic human
rights under international law such as the security of the person in jeopardy, the boundary
between acceptable means of achieving a legitimate policy and persecution is crossed.
Canadian judicial bodies may at that juncture pronounce on the validity of the means by
which a social policy may be implemented in an individual case by either granting or
denying Convention refugee status, assuming of course that the claimant's credibility is
not in question and that his or her account conforms with generally known facts.
Basic human rights transcend subjective and parochial perspectives and extend beyond
national boundaries. Recourse can be had to the municipal law of the admitting nation,
nevertheless, because that law may well animate a consideration of whether the alleged
feared conduct fundamentally violates basic human rights. Forced sterilization constitutes
a gross infringement of the security of the person and readily qualifies as the type of
fundamental violation of basic human rights that constitutes persecution. Notwithstanding
the technique, forced sterilization is in essence an inhuman, degrading and irreversible
treatment.
A well-founded fear must be evaluated both subjectively and objectively. The fact that
the appellant did not specifically invoke the term "fear of persecution" or equivalent
words to that effect was of no particular import. The testimony of his harassment,
together with his flight from China, directs a finding that he had an implicit well-founded
fear of persecution. The generally known facts establish the existence of objective
grounds for appellant's fearing forced sterilization. This was an issue for consideration by
the Board.
A refugee alleging membership in a particular social group does not have to be in
voluntary association with other persons similar to him- or herself. Rather, he or she must
be voluntarily associated with a particular status for reasons so fundamental to that
person's human dignity that he or she should not be forced to forsake that association.
The association or group exists by virtue of a common attempt made by its members to
exercise a fundamental human right. The right asserted can be categorized as the basic
right of all couples and individuals to decide freely and responsibly the number, spacing
and timing of their children. This fundamental right has been recognized in international
39
law. The possibility also exists that the appellant may have a well-founded fear of
persecution on the basis of a political opinion held by or imputed to him.
R. v. Brown [1994] 3 S.C.R. 749: Cruel and unusual punishment -- Criminal law - Sentencing -- Mandatory minimum sentence for use of firearm while committing
indictable offence -- Sentence to be served consecutively to punishment imposed
for an offence arising from same event -- Sentence imposed on conviction for
armed robberies using shotgun
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Constitutional law -- Charter of Rights -- Cruel and unusual punishment -- Criminal law
-- Sentencing -- Mandatory minimum sentence for use of firearm while committing
indictable offence -- Sentence to be served consecutively to punishment imposed for an
offence arising from same event -- Sentence imposed on conviction for armed robberies
using shotgun -- Whether provision creating minimum sentence infringing s. 12 of
Charter -- If so, whether justified under s. 1 of Charter -- Whether provision requiring
sentence to be served consecutively if arising out of same event infringing s. 12 of
Charter -- If so, whether justified under s. 1 of Charter -- Canadian Charter of Rights
and Freedoms, ss. 1, 12 -- Criminal Code, R.S.C., 1985, c. C-46, s. 85(1), (2).
Criminal law -- Sentencing -- Mandatory minimum sentence for use of firearm while
committing indictable offence to be served consecutively -- Sentence to be served
consecutively to punishment imposed for an offence arising from same event -- Sentence
imposed on conviction for armed robberies using shotgun -- Whether provision creating
minimum sentence infringing s. 12 of Charter -- If so, whether justified under s. 1 of
Charter -- Whether provision requiring sentence to be served consecutively if arising out
of same event infringing s. 12 of Charter -- If so, whether justified under s. 1 of Charter.
IACOBUCCI J. -- At issue in this appeal is the constitutionality of s. 85 of the Criminal
Code, R.S.C., 1985, c. C-46. We are all of the view that the appeal should be allowed on
the basis of the principles recently decided by the Court in R. v. Goltz, [1991] 3 S.C.R.
485. In Goltz, the majority of the Court held that a two-stage test should be employed to
evaluate the constitutionality of a legislative sentencing provision under s. 12 of the
Canadian Charter of Rights and Freedoms. The first stage is to view the provision in
question from the perspective of the accused, and on the facts of this case, which
involved three armed robberies using a shotgun, the provision clearly does not offend s.
12.
The second stage involves considering reasonable hypotheticals involving the offence
underlying the sentence in the case before the court. Here, the Attorney General of
Manitoba limited its defence of s. 85 to the case which concerns armed robbery as the
underlying offence. As such, the hypothetical proposed by the respondent relating to
mischief is not a reasonable hypothetical envisioned by Goltz. We agree with these
submissions and would therefore find no violation of s. 12 of the Charter.
40
Accordingly, the appeal is allowed, the judgment of the Court of Appeal of Manitoba is
set aside, the cross-appeal is dismissed, and the trial judge's calculation of the
respondent's sentence is restored.
We would answer the constitutional questions as follows:
Questions 1 and 3: No, when the underlying offence is robbery. The operation of s. 85 in
conjunction with other potential underlying indictable offences is not at issue in this
appeal and no answer is required regarding the validity of s. 85 in conjunction with such
other offences.
Questions 2 and 4: These questions do not arise.
R. v. Goltz [1991] 3 S.C.R. 485: Cruel and unusual punishment -- Minimum
sentence -- Provincial motor vehicle legislation providing for mandatory minimum
sentence of seven days' imprisonment together with fine for first conviction of
driving while prohibited
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Stevenson and Iacobucci JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Charter of Rights -- Cruel and unusual punishment -- Minimum
sentence -- Provincial motor vehicle legislation providing for mandatory minimum
sentence of seven days' imprisonment together with fine for first conviction of driving
while prohibited -- Whether mandatory minimum sentence infringes s. 12 of Charter -- If
so, whether infringement justified under s. 1 of Charter -- Motor Vehicle Act, R.S.B.C.
1979, c. 288, s. 88(1)(c) -- Canadian Charter of Rights and Freedoms, ss. 1, 12.
Respondent was found guilty of driving while prohibited under s. 86(1)(a)(ii) of the B.C.
Motor Vehicle Act, contrary to s. 88(1)(a). Section 88(1)(c) prescribes a minimum penalty
of seven days' imprisonment and a $300 fine for a first conviction of driving while
prohibited under s. 84, 85, 86 or 214. The provincial court found that the provision did
not infringe the guarantee against cruel and unusual punishment in s. 12 of the Canadian
Charter of Rights and Freedoms and imposed the minimum sentence. On appeal, the
county court found that the sentencing provision violated s. 12 of the Charter and could
not be justified under s. 1. That determination was upheld by the Court of Appeal. The
constitutional questions before this Court queried whether s. 88(1)(c) of the Motor
Vehicle Act infringes s. 12 of the Charter and, if so, whether the infringement is justified
under s. 1.
Held (Lamer C.J. and McLachlin and Stevenson JJ. dissenting): The appeal should be
allowed. The mandatory minimum sentence imposed pursuant to s. 88(1)(c) of the Motor
Vehicle Act for a first conviction of driving while prohibited does not infringe s. 12 of the
Charter when the prohibition from driving is made pursuant to s. 86(1)(a)(ii) of the Act.
Other prohibitions from driving, violation of which also triggers the mandatory minimum
sentence in s. 88(1)(c), are not at issue in this appeal.
Per La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: The general
test for determining whether a punishment is cruel and unusual within the meaning of s.
12 is one of gross disproportionality, which must consider the gravity of the offence, the
41
personal characteristics of the offender and the particular circumstances of the case.
Other factors which may legitimately inform an assessment are whether the punishment
is necessary to achieve a valid penal purpose, whether it is founded on recognized
sentencing principles, whether there exist valid alternatives to the punishment imposed,
and to some extent whether a comparison with punishments imposed for other crimes in
the same jurisdiction reveals great disproportion. The test is not one which is quick to
invalidate sentences crafted by legislators. It will only be on rare occasions that a court
will find a sentence so grossly disproportionate that it violates s. 12 of the Charter.
There are two aspects to the analysis of invalidity under s. 12. One aspect involves the
assessment of the challenged penalty or sanction from the perspective of the person
actually subjected to it, balancing the gravity of the offence in itself with the particular
circumstances of the offence and the personal characteristics of the offender. If it is
concluded that the challenged provision provides for and would actually impose on the
offender a sanction so excessive or grossly disproportionate as to outrage decency in
those real and particular circumstances, then it will amount to a prima facie violation of s.
12 and will be examined for justifiability under s. 1 of the Charter. If the particular facts
of the case do not warrant a finding of gross disproportionality, there may remain another
aspect to be examined, namely a Charter challenge or constitutional question as to the
validity of a statutory provision on grounds of gross disproportionality as evidenced in
reasonable hypothetical circumstances.
The constitutional questions in this case are restricted in focus to the particular form of
prohibition to which respondent was subjected under s. 86(1)(a)(ii) of the Act. In relation
to the particular offence and respondent's personal situation, s. 88(1)(c), applied in a
severed fashion in respect of s. 88(1)(a) and s. 86(1)(a)(ii), does not infringe s. 12 of the
Charter. Commission of the offence specified by ss. 86(1)(a)(ii) and 88(1) is grave. The
gravity of the offence must be assessed in light of the legislative purpose and the
underlying driving offences giving rise to the prohibition. An order of prohibition made
under s. 86(1)(a)(ii) is aimed in large measure at safeguarding the health and lives of
citizens using the highways of a province, as reflected in the requirements that the
prohibited individual must have built up an "unsatisfactory driving record" and that the
prohibition be "in the public interest". Only bad drivers with an unsatisfactory driving
record are prohibited under s. 86(1)(a)(ii) because it is especially those drivers who are
dangerous to innocent citizens using the roads in a responsible manner. The Act's
emphasis on the promotion of responsible driving and penalizing of irresponsible driving
is further reflected in the requirement in the offence that a person knowingly drive while
prohibited. As well, because the offence is difficult to detect, there is a great temptation
on the part of many prohibited drivers to commit it, and a legislature may therefore
rationally conclude that for the purpose of deterrence a serious penalty must attach to it.
The gravity of the offence of driving while prohibited is made more obvious upon review
of the Act's procedural safeguards, which ensure that only bad drivers will be prohibited
from driving under s. 88(1)(a) in application to s. 86(1)(a)(ii).
Having been prohibited from driving, respondent knowingly and contemptuously violated
the prohibition. There was no indication that he was urgently required to drive his car on
the day in question, nor was there any submission as to a relevant personal characteristic
of his that would justify a mitigated or lesser sentence than the mandatory minimum. The
effects of the sentence cannot reasonably be said to outrage standards of decency or be
42
seen as grossly disproportionate to the wrongdoing. The effect of the seven-day sentence
is lighter than might first appear, since the sentence can be fashioned to be fully served
on a few weekends, as in this case.
It is unlikely that the general application of the offence would result in the imposition of a
grossly disproportionate sentence amounting to cruel and unusual punishment.
Respondent has not discharged the onus of demonstrating a reasonable hypothetical
circumstance in which enforcement of the statute would violate s. 12. The regulatory
system of penalty points and internal reviews guarantees that it will be exceptionally rare
that a so-called "small offender" will ever be subjected to the minimum penalty in s.
88(1)(c). By divorcing the offence of driving while prohibited from the various
infractions which led up to the prohibition, the Court of Appeal accorded insufficient
weight to the gravity of the offence and to the relatively high threshold for its
commission.
Per Lamer C.J. and McLachlin and Stevenson JJ. (dissenting): The mandatory minimum
sentence of seven days' imprisonment plus a fine would in some cases be clearly
disproportionate and shocking to the Canadian conscience, and hence violate the
guarantee against cruel and unusual punishment in s. 12 of the Charter. The provision
cannot be saved under s. 1 of the Charter because it is overbroad: no obvious or probable
need for a deterrent which has such an indiscriminate reach has been demonstrated.
Rather than alleviating the particular offences from the purview of s. 88(1)(c) on a caseby-case basis, the Court should strike out the mandatory minimum sentence. An analysis
which proceeds by severing potentially offending parts of s. 88 fails to answer the
question posed on this appeal.
Furthermore, severing the reference in s. 88 to prohibitions other than selected cases
under s. 86 of the Act has an effect analogous to reading down the statute, or applying the
doctrine of constitutional exemption. To address s. 88 as though it referred only to
prohibitions under s. 86 is to address a different scheme than that enacted by the
legislature and leaves the constitutional status of the scheme uncertain, which runs
counter to the fundamental principle that laws whose violation can result in imprisonment
should be clear, certain and ascertainable.
R. v. Heywood [1994] 3 S.C.R. 761: Criminal Code prohibiting convicted sexual
offenders from loitering in school yards, playgrounds and public parks -Convicted sexual offender convicted of loitering by play area in public park -Definition of "loitering"-- the right not to be subjected to cruel and unusual
treatment or punishment, the right not to be arbitrarily detained or imprisoned
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Charter of Rights -- Criminal Code prohibiting convicted sexual
offenders from loitering in school yards, playgrounds and public parks -- Convicted
sexual offender convicted of loitering by play area in public park -- Definition of
"loitering" -- Whether infringement of s. 7 (the right to life, liberty and security of the
43
person), s. 11(d) (the right to be presumed innocent), s. 12 (the right not to be subjected
to cruel and unusual treatment or punishment), s. 9 (the right not to be arbitrarily
detained or imprisoned) and s. 11(h) (the right not to be tried and punished for the same
offence if already found guilty and punished for that offence) -- If so, whether justified
under s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 11(d), (h), 12 -Criminal Code, R.S.C., 1985, c. C-46, s. 179(1)(b).
Criminal law -- Sexual conviction -- Loitering -- Definition of "loitering" -- Criminal
Code prohibiting convicted sexual offenders from loitering in school yards, playgrounds
and public parks -- Convicted sexual offender convicted of loitering by play area in
public park -- Whether infringement of s. 7 (the right to life, liberty and security of the
person), s. 11(d) (the right to be presumed innocent), s. 12 (the right not to be subjected
to cruel and unusual treatment or punishment), s. 9 (the right not to be arbitrarily
detained or imprisoned) and s. 11(h) (the right not to be tried and punished for the same
offence if already found guilty and punished for that offence) -- If so, whether justified
under s. 1 -- Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 11(d), (h), 12 -Criminal Code, R.S.C., 1985, c. C-46, s. 179(1)(b).
Respondent's earlier convictions of sexual assault involving children made him subject to
the prohibition in s. 179(1)(b) of the Criminal Code that he not commit vagrancy by
loitering near playgrounds, school yards or public parks. On two occasions, respondent,
who was carrying a camera with a telephoto lens in a public park near to where children
were playing, was stopped by police and questioned as to whether he had a criminal
record. On the first occasion, he was warned that a convicted sex offender was not
permitted to loiter near a public park, school yard or playground. On the second, he was
arrested and charged under s. 179(1)(b) of the Code with two counts of vagrancy -- "at or
near a playground" and "in or near a public park" -- and the camera and film with frames
focusing on the crotch areas of young girls playing in the park with their clothing in
disarray were seized.
The respondent was convicted of the first count. The trial judge found that, even though
s. 179(1)(b) infringed ss. 7 and 11(d) of the Charter, these infringements were a
justifiable limitation under s. 1. The second count was conditionally stayed under the
Kienapple principle. An appeal to the British Columbia Supreme Court was dismissed.
The Court of Appeal, however, allowed respondent's appeal and quashed the conviction
because the breaches of ss. 7 and 11(d) were not justified. The constitutional questions
before this Court queried if s. 179(1)(b) infringed several sections of the Charter, and if
so, whether those infringements were justifiable under s. 1. The Charter provisions
allegedly infringed were: s. 7 (the right to life, liberty and security of the person), s. 11(d)
(the right to be presumed innocent), s. 12 (the right not to be subjected to cruel and
unusual treatment or punishment), s. 9 (the right not to be arbitrarily detained or
imprisoned) and s. 11(h) (the right not to be tried and punished for the same offence if
already found guilty and punished for that offence).
Held (La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. dissenting): The appeal
should be dismissed. Section 179(1)(b) violated s. 7 of the Charter and was not justified
under s. 1.
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: The word "loiter" in s.
179(1)(b) should be given its ordinary meaning -- to stand idly around, hang around,
linger, tarry, saunter, delay, dawdle -- and should not be interpreted as requiring a
44
malevolent intent. None of the dictionary definitions requires a malevolent intent or
makes any reference to such a requirement and the jurisprudence considering its meaning
in other sections of the Code supports the use of the ordinary meaning in s. 179(1)(b).
The ordinary definition is also consistent with section's purpose of protecting children
from becoming victims of sexual offences by prohibiting any prolonged attendance in
areas often frequented by children.
The concept of malevolent intent (as opposed to a narrower formula such as unlawful
intent) raises problems of definition which make it unworkable. It is a concept of very
broad scope that is extremely difficult to define. Malevolent intent could mean almost
anything, and its definition would be dependent upon the subjective views of the
particular judge trying the case.
The legislative debates both on the provision's enactment and later on its reconsideration
cannot be used to support the notion of some sort of malevolent intent. These debates,
assuming admissibility, were inconclusive for the purpose of determining legislative
intent. Indeed, legislative history generally is not admissible as proof of legislative intent
in the construction of statutes because it is not reliable evidence. Rather, it may be
admissible for the more general purpose of showing the mischief Parliament was
attempting to remedy with the legislation.
Section 179(1)(b) restricts the liberty of those to whom it applies. Although a prohibition
for the purpose of protecting the public does not per se infringe the principles of
fundamental justice, the prohibition in s. 179(1)(b) does so because it restricts liberty far
more than is necessary to accomplish its goal. It applies, without prior notice to the
accused, to too many places, to too many people, for an indefinite period with no
possibility of review.
Overbreadth and vagueness are different concepts, but are sometimes related in particular
cases. They 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. A
court must consider whether those means are 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 a
matter of balancing the state interest against that of the individual. Where an independent
principle of fundamental justice is violated, however, any balancing of the public interest
must take place under s. 1 of the Charter. In analysing a statutory provision to determine
if it is overbroad, a measure of deference must be paid to the means selected by the
legislature. A court should not interfere with legislation merely because a judge might
have chosen a different means of accomplishing the objective.
Section 7 of the Charter has a wide scope. An enactment, before it can be found to be so
broad that it infringes s. 7 of the Charter, must clearly infringe life, liberty or security of
the person in a manner that is unnecessarily broad, going beyond what is needed to
accomplish the governmental objective. In determining whether a provision is overly
45
broad and not in accordance with the principles of fundamental justice, it must be
determined whether the means chosen to accomplish the provision's objectives are
reasonably tailored to effect its purpose. Where legislation limits the liberty of an
individual in order to protect the public, that limitation should not go beyond what is
necessary to accomplish that goal.
Section 179(1)(b) suffers from overbreadth and thus the deprivation of liberty it entails is
not in accordance with the principles of fundamental justice. The section is overly broad
in its geographical ambit. The limitation should be more narrowly defined, to apply only
to those parks and bathing areas where children can reasonably be expected to be present.
It is also overly broad in that it applies for life, with no possibility of review. Without a
review a person who has ceased to be a danger to children (or who indeed never was a
danger to children) continues to be subject to the prohibition in s. 179(1)(b). A pardon
under the Criminal Records Act or the royal prerogative of mercy, while removing only
any disqualification flowing from conviction, does not meet the need for review because
of inadequate and insufficient availability. Finally, s. 179(1)(b) applies to all persons
convicted of the listed offences, without regard to whether they constitute a danger to
children and accordingly is also overly broad in respect to the people to whom it applies.
The absence of notice, too, offends the principles of fundamental justice. Great care is
taken to give notice in connection with other provisions of the Code.
It is significant that the new s. 161, enacted after the Court of Appeal's decision, applies
only to persons who have committed the listed offences in respect of persons under age
fourteen. In addition, the order made pursuant to it is discretionary so that only those
offenders constituting a danger to children will be subject to a prohibition. Unlike s.
179(1)(b), the new s. 161 provides for both notice and review of the prohibition and
accordingly reduces the significance of the overbreadth factor.
Doubts exist as to whether a violation of the right to life, liberty or security of the person
which is not in accordance with the principles of fundamental justice can ever be
justified, except perhaps in times of war or national emergencies. Overbroad legislation
infringing s. 7 of the Charter is even more difficult to justify and would appear to be
incapable of passing the minimal impairment branch of the s. 1 analysis.
The objective of s. 179(1)(b) of protecting children from sexual offences is pressing and
substantial. The protection of children from sexual offenses is obviously very important
to society. Furthermore, the means employed in s. 179(1)(b), at least in some of their
applications, are rationally connected to the objective. However, for the same reasons that
s. 179(1)(b) is overly broad, it fails the minimal impairment branch of the s. 1 analysis
and so cannot be justified under s. 1 of the Charter.
The remedies of reading in or reading down are not appropriate here. The changes which
would be required to make s. 179(1)(b) constitutional would not constitute reading down
or reading in but rather would amount to judicial rewriting of the legislation and the
creation of an entirely new scheme with a completely different approach to the problem.
Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. (dissenting): Section
179(1)(b) should be interpreted as prohibiting the persons affected from being in one of
the enumerated places for a malevolent or ulterior purpose related to the predicate
offences. The purpose and legislative history of s. 179(1)(b), precedent and statutory
context support this interpretation.
46
The legislative history of s. 179(1)(b) indicated that Parliament considered the word
"loiter" to have a different meaning from the word "wander" which was removed from
earlier versions of the provision. "Wander" connotes movement without specific intent;
"loiter", notwithstanding the common element of idleness, is defined more narrowly and
has a variable connotation according to the context.
The Crown's expert psychiatric and psychological evidence was of assistance in
understanding the purpose and scope of s. 179(1)(b). The evidence on cross-offending
and the difficulty of predicting who will cross-offend or repeat offend justifies some form
of restriction on the liberty of persons convicted of sexual offences.
The section has at its foundation a concern for public safety and a desire to aid in the
treatment and rehabilitation of offenders. It applies broadly to all persons convicted of the
enumerated offences and therefore provides protection not only to children but also to
others who could be victims of sexual assault in the listed areas. The areas where the
prohibition applies are places where people will generally lower their guard.
A caveat to the general rule that words be given their ordinary meaning arises because the
sense of the term "loiter" varies according to its context. The absence of purpose element
in the ordinary meaning of loiter can have no application in the context of s. 179(1)(b).
Parliament clearly intended to include conduct of convicted sex offenders whose purpose
was related to re-offending.
The prohibition contained in s. 179(1)(b) should be narrowed to render the prohibition
less intrusive and to tailor it more carefully to the objectives being pursued. Not all
loitering should be caught by its prohibition contained in s. 179(1)(b). Rather, the
intrusion into the activities of individuals should be tied to some reason of public order.
The concern to exclude presence in the enumerated areas for legitimate purposes from
criminal prohibition is well-founded. The restriction created by s. 179(1)(b) will not be
the same in each of the listed areas.
Analysis of the interaction of other provisions of the Code dealing with a similar subjectmatter supports the interpretation that loitering as used in s. 179(1)(b) requires a
malevolent purpose. Sections 179(1)(b) and 810.1 read together, however, produce a
similar result to that achieved by s. 161 in relation to those convicted prior to the
enactment of s. 161. (Section 161 allows a court at the time of sentencing to make an
order prohibiting a sexual offender from attending day care centres, school grounds,
playgrounds, community centres, or any public park or swimming area where persons
under the age of 14 years are present or can reasonably be expected to be present. The s.
161 prohibition is available only in relation to persons who have committed offences
against children under age 14.) Section 810.1 allows an application to be made to the
provincial court, where there are reasonable grounds to fear that someone will commit
certain sexual offences, for an order prohibiting that person from attending areas where
children under age 14 are likely to be present. Section 179(1)(b) allows the police to take
immediate preventative steps before a previous offender re-offends.
The two primary Charter concerns raised in relation to s. 179(1)(b) pertain to vagueness
and overbreadth. Defining loitering in that section as being in an enumerated place for a
malevolent or ulterior purpose related to the predicated offences avoids both these
problems. A lifetime prohibition of activities with a malevolent or ulterior purpose
related to re-offending is not objectionable or over-broad. Such a prohibition would
impose a restriction on the liberty of the affected individuals to which ordinary citizens
47
are not subject, but that restriction is directly related to preventing re-offending. The
affected persons' history of offending, the uncertainties prevalent in treating offenders
and a desire to disrupt the cycle of re-offending justify this minor intrusion which does
not breach the principles of fundamental justice.
Section 7 of the Charter was not violated by the absence of any notice of the prohibition
contained in s. 179(1)(b). Even though formal notice of the content of s. 179(1)(b) might
be preferable, Parliament's decision to provide notice in respect of certain Criminal Code
prohibitions cannot be transformed into a principle of fundamental justice.
The allegation that s. 179(1)(b) violates ss. 9, 11(d), (h) and 12 of the Charter are without
foundation. The absence of notice, for reasons similar to those relating to overbreadth,
did not violate the s. 9 Charter guarantee against being arbitrarily detained or imprisoned.
The s. 11(d) Charter right to be presumed innocent until proven guilty was not infringed
either for s. 179(1)(b) does not assume recidivism but rather provides the means to
prevent it. Anyone charged under s. 179(1)(b) will be presumed innocent and the burden
remains on the Crown to prove beyond a reasonable doubt that the accused committed the
offence as interpreted. The s. 11(h) right against double jeopardy was not violated.
Section 179(1)(b) applies to persons identified by the fact of having been convicted of
one of the enumerated offences. Any conviction under that section, however, will be
based on violating its terms and not of having been convicted of one of the enumerated
offences. Finally, the respondent was not the subject of cruel and unusual treatment or
punishment contrary to s. 12 of the Charter. Such punishment or treatment must be "so
excessive as to outrage the standards of decency" or have an effect "grossly
disproportionate to what would have been appropriate". The lifetime prohibition of
activities with a malevolent or ulterior purpose related to re-offending, however, is both a
minor and justifiable restraint of the affected persons' liberty.
Cunningham v. Canada [1993] 2 S.C.R. 143: Parole -- Mandatory supervision - Parole Act amended to change conditions for release on mandatory supervision
-- Whether amendment amounts to denial of prisoner's liberty contrary to
principles of fundamental justice
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, McLachlin and
Iacobucci JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Liberty of the person -- Fundamental justice -Parole -- Mandatory supervision -- Parole Act amended to change conditions for release
on mandatory supervision -- Whether amendment amounts to denial of prisoner's liberty
contrary to principles of fundamental justice -- Canadian Charter of Rights and
Freedoms, s. 7 -- Parole Act, R.S.C., 1985, c. P-2, s. 21.3(3)(a)(ii).
Prisons -- Parole -- Mandatory supervision -- Parole Act amended to change conditions
for release on mandatory supervision -- Whether amendment amounts to denial of
prisoner's liberty contrary to principles of fundamental justice -- Canadian Charter of
Rights and Freedoms, s. 7 -- Parole Act, R.S.C., 1985, c. P-2, s. 21.3(3)(a)(ii).
In 1981 the appellant was sentenced to 12 years' imprisonment for manslaughter. Under
the Parole Act in force at the time, he was entitled to be released on mandatory
48
supervision after serving approximately two-thirds of his sentence, provided that he was
of good behaviour. In 1986 the Act was amended to allow the Commissioner of
Corrections, within six months of the "presumptive release date", to refer a case to the
National Parole Board where he has reason to believe, on the basis of information
obtained within those six months, that the inmate is likely, prior to the expiration of his
sentence, to commit an offence causing death or serious harm. The Parole Board may, if
it sees fit, deny release of the inmate. Shortly before his release date, the appellant
received a notice that the Commissioner had decided to seek his continued detention.
Following a hearing, he was ordered to be detained until his sentence expired, subject to
annual reviews. The Ontario Supreme Court refused his application for a writ of habeas
corpus. The Court of Appeal upheld the judgment. This appeal is to determine whether
the 1986 amendment to the Parole Act amounts to a denial of the appellant's liberty
contrary to the principles of fundamental justice under s. 7 of the Canadian Charter of
Rights and Freedoms; if so, whether the violation is justifiable under s. 1 of the Charter;
and whether the Commissioner acted lawfully in referring the appellant to the Board for a
hearing within six months of his release date.
Held: The appeal should be dismissed.
The appellant has suffered deprivation of liberty. While the duration of the restriction of
his liberty interest has not been affected, the manner in which he may serve part of that
sentence has. The deprivation is sufficiently serious to warrant Charter protection. There
is a significant difference between life inside a prison and the greater liberty enjoyed on
the outside under mandatory supervision. The 1986 amendment to the Parole Act did not,
however, violate the principles of fundamental justice, which are concerned not only with
the interest of the person who claims his liberty has been limited, but with the protection
of society. From a substantive point of view, the change in the law strikes the right
balance between those interests. The prisoner's liberty interest is limited only to the
extent that this is shown to be necessary for the protection of the public. Nor does the
procedure established under the Act and Regulations violate the principles of
fundamental justice. The new procedure provides for a hearing, and the prisoner is
entitled to representation throughout. The material on which the matter may be referred
for hearing is limited, and there are provisions for new hearings to review the detention in
the future. These requirements provide safeguards against arbitrary, capricious orders and
ensure that curtailment of release on mandatory supervision occurs only when it is
required to protect the public and then only after the interests of the prisoner in obtaining
the release have been fully and fairly canvassed.
The Commissioner did not violate the Parole Act by referring the appellant's case to the
Parole Board. While some of the information relied on was in the files prior to the sixmonth period before the prospective release date, that should not prevent the
Commissioner from relying on new and revised reports to the same effect when they
come to his attention within the six-month period.
Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689: Immigration -Refugee status -- "Particular social group" -- Political opinion -- "Well-founded
fear of persecution" necessary to establishment of claim to Convention refugee
status -- Claimant a former member of Irish terrorist organization sentenced to
49
death by organization for complicity in assisting escape of hostages -- Claimant
citizen of Ireland and of United Kingdom -- Whether state complicity requirement
for persecution -- Whether terrorist organization a "particular social group" -Whether dissention from politico-military organization basis for persecution for
political opinion
Present: La Forest, L'Heureux-Dubé, Gonthier, Stevenson and Iacobucci JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Immigration -- Refugee status -- "Particular social group" -- Political opinion -- "Wellfounded fear of persecution" necessary to establishment of claim to Convention refugee
status -- Claimant a former member of Irish terrorist organization sentenced to death by
organization for complicity in assisting escape of hostages -- Claimant citizen of Ireland
and of United Kingdom -- Whether state complicity requirement for persecution -Whether terrorist organization a "particular social group" -- Whether dissention from
politico-military organization basis for persecution for political opinion -- Whether s. 15
of Charter applicable to definition of Convention refugee -- Burden of proof of want of
protection of each country of nationality -- Canadian Charter of Rights and Freedoms, s.
15 -- Immigration Act, 1976, S.C. 1976-77, c. 52, ss.2(1), 4(2.1), 19(1)(c), (d), (e), (f), (g),
(2), 46.04(1)(c).
Appellant was a resident of Northern Ireland. Motivated by a perceived need to "take a
stand" in order to protect his family, mainly from the IRA, he voluntarily joined the
INLA, a para-military terrorist group dedicated to the political union of Ulster and the
Irish Republic. Appellant, who had been detailed to guard innocent hostages, secured
their escape when he learned that they were to be executed. This action was motivated by
his conscience.
The police eventually let slip to an INLA member that one of their own had assisted the
escape. The INLA, who had suspected appellant, confined and tortured him and
sentenced him to death following a court-martial by a kangaroo court. Appellant escaped
from the INLA, sought police protection and was charged for his part in the hostage
incident. The INLA, in a pre-emptive move to prevent appellant's providing evidence to
the police about INLA members and their activities, took his wife and children hostage.
Appellant pleaded guilty to the offence of forcible confinement and was sentenced to
three years in jail. He did not give evidence against the INLA and never admitted
publicly to having released the hostages. Towards the end of his prison sentence,
appellant sought the assistance of the prison chaplain for protection from INLA members.
The chaplain, with the assistance of police, obtained a Republic of Ireland passport for
appellant and airline tickets to Canada.
Appellant arrived in Toronto in December 1985 and sought admission to Canada as a
visitor. He became the subject of an inquiry in May, 1986, and claimed Convention
refugee status citing a fear of persecution because of his membership in a particular social
group (the INLA). The Minister of Employment and Immigration determined that
appellant was not a Convention refugee and, as a result, appellant filed an application for
redetermination of his claim before the Immigration Appeal Board. The Board allowed
the redetermination and found appellant to be a Convention refugee. The Federal Court of
Appeal granted the Attorney General of Canada's application under s. 28 of the Federal
50
Court Act to set aside the decision and referred the matter back to the Board for
reconsideration.
At issue before this Court were: (1) whether the element of state complicity is required to
establish a refugee claim and the nature of the "unwillingness" or "inability" of a claimant
to seek the protection of his or her home state; (2) the meaning of "particular social
group"; (3) the nature of persecution for political opinion and whether desertion from a
politico-military organization for reasons of conscience may properly ground a claim
based on that ground; (4) whether s. 15 of the Charter was applicable; and (5) in cases of
multiple nationality, whether the claimant must establish want of protection in all states
of citizenship.
Held: The appeal should be allowed.
International refugee law was formulated to serve as a back-up to the protection owed a
national by his or her state. It was meant to come into play only in situations where that
protection is unavailable, and then only in certain situations. The international
community intended that persecuted individuals be required to approach their home state
for protection before the responsibility of other states becomes engaged.
"Persecution" includes situations where the state is not in strictness an accomplice to the
persecution but is simply unable to protect its citizens. The dichotomy between "unable"
and "unwilling" has become somewhat blurred. The inquiry as to whether a claimant
meets the "Convention refugee" definition must focus on whether there is a "wellfounded fear", which the claimant must first establish, and all that follows must be "by
reason of" that fear. Two categories, both requiring the claimant to be outside his or her
state of nationality by reason of that fear, exist. The first requires that the claimant be
unable to avail him- or herself of that state's protection. It originally related only to
stateless persons, but can now include those refused passports or other protections by
their state of nationality. The second requires that the claimant be unwilling to avail himor herself of his or her state's protection by reason of that fear. Neither category of the
"Convention refugee" definition, however, requires that the state have been involved in
the persecution.
The test as to whether a state is unable to protect a national is bipartite: (1) the claimant
must subjectively fear persecution; and (2) this fear must be well-founded in an objective
sense. The claimant need not literally approach the state unless it is objectively
unreasonable for him or her not to have sought the protection of the home authorities.
The Board, if the claimant's fear has been established, is entitled to presume that
persecution will be likely and that the fear is well-founded if there is an absence of state
protection. The presumption goes to the heart of the inquiry, which is whether there is a
likelihood of persecution. The persecution must be real -- the presumption cannot be built
on fictional events -- but the well-foundedness of the fears can be established through the
use of such a presumption.
The presumption was of some importance to the Board in this case. It found that the
appellant was a credible witness and therefore accepted that he had a legitimate fear of
persecution. Since Ireland's inability to protect was established through evidence that
state agents had admitted their ineffectiveness, the Board was then able to presume the
well-foundedness of appellant's fears.
The claimant must provide clear and convincing confirmation of a state's inability to
protect absent an admission by the national's state of its inability to protect that national.
51
Except in situations of complete breakdown of the state apparatus, it should be assumed
that the state is capable of protecting a claimant. This presumption, while it increases the
burden on the claimant, does not render illusory Canada's provision of a haven for
refugees. It reinforces the underlying rationale of international protection as a surrogate,
coming into play where no alternative remains to the claimant.
In distilling the contents of the head of "particular social group", account should be taken
of the general underlying themes of the defence of human rights and anti-discrimination
that form the basis for the international refugee protection initiative. A good working rule
for the meaning of "particular social group" provides that this basis of persecution
consists of three categories: (1) groups defined by an innate, unchangeable characteristic;
(2) groups whose members voluntarily associate for reasons so fundamental to their
human dignity that they should not be forced to forsake the association; and (3) groups
associated by a former voluntary status, unalterable due to its historical permanence.
Exclusions on the basis of criminality have been carefully drafted in the Immigration Act
to avoid the admission of claimants who may pose a threat to the Canadian government
or to the lives or property of the residents of Canada. These provisions specifically give
the Minister of Employment and Immigration enough flexibility to reassess the
desirability of permitting entry to a claimant with a past criminal record, where the
Minister is convinced that rehabilitation has occurred. This demonstrates that Parliament
has not opted to treat a criminal past as a reason to be estopped from obtaining refugee
status. The scope of the term "particular social group" accordingly did not need to be
interpreted narrowly to accommodate morality and criminality concerns. Such a blanket
exclusion is more appropriately to be avoided in the face of an explicit, comprehensive
structure for the assessment of these potentially inadmissible claimants.
Appellant did not meet the definition of "Convention refugee" with respect to his fear of
persecution at the hands of the INLA upon his return to Northern Ireland. The group of
INLA members is not a "particular social group". Its membership is neither characterized
by an innate characteristic nor is it an unchangeable historical fact. Its objective of
obtaining specific political goals by any means, including violence, cannot be said to be
so fundamental to the human dignity of its members that it constitutes a "particular social
group". In any event, appellant's fear was not based on his membership. Rather, he felt
threatened because of what he did as an individual. His membership in the INLA placed
him in the circumstances that led to his fear, but the fear itself was based on his action,
not on his affiliation.
A claimant is not required to identify the reasons for the persecution. The examiner must
decide whether the Convention definition is met; usually there will be more than one
applicable ground.
Political opinion can generally be interpreted to be any opinion on any matter in which
the machinery of state, government, and policy may be engaged. The political opinion at
issue need not have been expressed outright. Often the claimant is not even given the
opportunity to articulate his or her beliefs; often they are imputed to the claimant from his
or her actions. The political opinion ascribed to the claimant and for which he or she fears
persecution need not necessarily conform to the claimant's true beliefs. The examination
of the circumstances should be approached from the perspective of the persecutor, since
that is the perspective that is determinative in inciting the persecution. Similar
considerations apply to other bases of persecution.
52
Appellant's fear of being killed by the INLA, should he return to Northern Ireland,
stemmed initially from the group's threat of executing the death sentence imposed by its
court-martial. The act for which appellant was so punished was his assistance in the
escape of the hostages he was guarding. From this act, a political opinion related to the
proper limits to means used for the achievement of political change can be imputed. To
appellant, who believed that the killing of innocent people to achieve political change is
unacceptable, setting the hostages free was the only option that accorded with his
conscience. The persecution appellant fears stemmed from his political opinion as
manifested by this act.
Given that the relevant aspects of the majority decision were found to be incorrect for
other reasons, recourse to s. 15 of the Charter with respect to "particular social group"
and state complicity was unnecessary.
Appellant conceded dual nationality -- Irish and British. The burden of proof, including a
showing of well-founded fear of persecution in all countries of which the claimant is a
national, lies with appellant and not the Minister.
The Board must investigate whether the claimant is unable or unwilling to avail him- or
herself of the protection of each and every country of nationality. Any home state
protection is a claimant's sole option when available since international refugee
protection is to serve as "surrogate" shelter coming into play only upon failure of national
support. The inability of a state of nationality to protect can be established where the
claimant has actually approached the state and been denied protection. Where, as in the
case of appellant, the second state has not actually been approached by the claimant, that
state should be presumed capable of protecting its nationals. An underlying premise of
this presumption is that citizenship carries with it certain basic consequences, such as the
right to gain entry to the country at any time. Denial of admittance to the home territory
can amount to a refusal of protection. Here, evidence, albeit not expert opinion, was led
to establish that British legislation enabled the British Government to prohibit a national
from being in, or entering, Great Britain, if the national had been connected with
terrorism with regard to Northern Ireland. The applicability of this presumption and its
rebuttal depended on the particular circumstances of this case and was to be determined
by the Board.
R. v. Macooh [1993] 2 S.C.R. 802: Arbitrary detention -- Peace officer entering
private home without a warrant to arrest accused for a provincial offence-Common law traditionally recognizing hot pursuit exception to principle of sanctity
of home -- Whether exception should be extended to arrests for provincial
offences -- Whether entry by peace officer lawful.
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin and
Iacobucci JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA
Criminal law -- Police -- Powers of arrest -- Provincial offences -- Peace officer entering
private home without a warrant to arrest accused for a provincial offence -- Common law
53
traditionally recognizing hot pursuit exception to principle of sanctity of home -- Whether
exception should be extended to arrests for provincial offences -- Whether entry by peace
officer lawful.
Constitutional law -- Charter of Rights -- Fundamental justice -- Arbitrary detention -Peace officer entering private home without a warrant to arrest accused for a provincial
offence -- Accused's rights under ss. 7 and 9 of Canadian Charter of Rights and
Freedoms not infringed.
A police officer observed the accused going through a stop sign and began to follow him
with the emergency signals on the cruiser activated. The accused accelerated, drove
through two more stop signs and then stopped at an apartment parking lot. The officer,
who recognized him, saw the accused get out of his car and run toward the back door of
an apartment. He yelled at him to stop running and come back, but the accused entered
the apartment. The police officer called out through the door but received no answer. He
identified himself as being a member of the RCMP and, still receiving no answer, entered
the apartment. He found the accused in bed and told him he was under arrest for failure to
stop for a police officer. The accused repeatedly refused to follow the officer. An
altercation took place, during which the officer could observe the usual signs of
impairment. The accused was arrested. He refused a demand for a breath sample and was
charged with impaired driving, failing to stop for a peace officer, failing to submit to a
breathalyser test and assaulting a peace officer with intent to resist arrest.
The trial judge held that the officer's entry into the dwelling house in hot pursuit of a
person suspected of a breach of summary legislation contained in a provincial enactment,
as opposed to an indictable offence, was unlawful, and that the arrest of the person within
the premises was therefore also unlawful. The resisting arrest charge was accordingly
dismissed. As the evidence crucial to the impaired driving and breathalyser charges was
gathered during the unlawful arrest, the trial judge refused to admit it on the basis that the
administration of justice would be brought into disrepute and the accused was acquitted
on these charges as well. The summary conviction appeal judge upheld the acquittals.
The Court of Appeal found that the right of arrest on private property was not limited to
indictable offences and that the arrest was therefore lawful. It set aside the acquittals and
entered convictions.
Held: The appeal should be dismissed.
It is well settled at common law that police officers have the power to enter private
premises to make an arrest in hot pursuit. This exception to the principle of sanctity of the
home can easily be justified. It would be unacceptable for police officers who were about
to make a completely lawful arrest to be prevented from doing so merely because the
offender had taken refuge in his home or that of a third party. From a more practical
standpoint, significant danger may be associated with the flight of an offender and the
pursuit that may result. Further, in a case of hot pursuit the police officer may have
personal knowledge of the facts justifying the arrest, which greatly reduces the risk of
error. Flight also usually indicates some awareness of guilt on the part of the offender. As
well, it may often be difficult to identify the offender without arresting him on the spot.
Evidence of the offence leading to the pursuit or a related offence may also be lost.
Finally, the offender may again flee or continue to commit the offence and the police
cannot be required to keep an indefinite watch on the offender's residence in case he
54
should decide to come out. If an arrest without a warrant is permissible at the outset, the
offender's flight into a dwelling house thus cannot make it unlawful.
A right of entry to make an arrest in hot pursuit exists at common law both for indictable
offences and for other types of offence, and there are strong policy considerations against
altering this rule. Unlike the division which existed at common law between felonies and
misdemeanours, the division which currently exists in our law between indictable
offences and other categories of offence only very imperfectly reflects the severity of the
offence. Most importantly, there is no logical connection between the fact that an offence
falls in one or other of these categories and the need there may be to make an arrest in hot
pursuit in residential premises. Even where there is no arrest warrant, there is thus in a
case of hot pursuit a right to enter residential premises to make an arrest both for
provincial offences and for indictable offences, provided the circumstances justify an
arrest without a warrant. The entry by the police was accordingly authorized in this case.
The accused's rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms
have not been infringed. With respect to s. 9, the police had reasonable grounds to stop
and detain the accused, and the detention was therefore not arbitrary. So far as s. 7 is
concerned, even assuming that this provision implies protection of a right to privacy,
there can be no question of such a right being infringed in this case. A person who enters
his house or that of someone else to get away from the police who are pursuing him in
connection with an offence he has just committed and for which there is a power of arrest
without a warrant cannot expect his privacy to be protected in such circumstances so as to
prevent the police from making an arrest.
Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519:
Terminally ill patient seeking assistance to commit suicide -- Whether Criminal
Code provision prohibiting aiding a person to commit suicide infringes s. 7 of
Canadian Charter of Rights and Freedoms; Equality rights -- Discrimination on
basis of physical disability-- Cruel and unusual punishment
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Iacobucci and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Charter of Rights -- Life, liberty and security of the person -Fundamental justice -- Terminally ill patient seeking assistance to commit suicide -Whether Criminal Code provision prohibiting aiding a person to commit suicide
infringes s. 7 of Canadian Charter of Rights and Freedoms -- If so, whether infringement
justifiable under s. 1 of Charter -- Remedies available if Charter infringed -- Criminal
Code, R.S.C., 1985, c. C-46, s. 241(b).
Constitutional law -- Charter of Rights -- Equality rights -- Discrimination on basis of
physical disability -- Terminally ill patient seeking assistance to commit suicide -Whether Criminal Code provision prohibiting aiding a person to commit suicide
infringes s. 15(1) of Canadian Charter of Rights and Freedoms -- If so, whether
infringement justifiable under s. 1 of Charter -- Remedies available if Charter infringed - Criminal Code, R.S.C., 1985, c. C-46, s. 241(b).
55
Constitutional law -- Charter of Rights -- Cruel and unusual punishment -- Terminally ill
patient seeking assistance to commit suicide -- Whether Criminal Code provision
prohibiting aiding a person to commit suicide infringes s. 12 of Canadian Charter of
Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter -Remedies available if Charter infringed -- Criminal Code, R.S.C., 1985, c. C-46, s.
241(b).
The appellant, a 42-year-old mother, suffers from amyotrophic lateral sclerosis. Her
condition is rapidly deteriorating and she will soon lose the ability to swallow, speak,
walk and move her body without assistance. Thereafter she will lose the capacity to
breathe without a respirator, to eat without a gastrotomy and will eventually become
confined to a bed. Her life expectancy is between 2 and 14 months. The appellant does
not wish to die so long as she still has the capacity to enjoy life, but wishes that a
qualified physician be allowed to set up technological means by which she might, when
she is no longer able to enjoy life, by her own hand, at the time of her choosing, end her
life. The appellant applied to the Supreme Court of British Columbia for an order that s.
241(b) of the Criminal Code, which prohibits the giving of assistance to commit suicide,
be declared invalid on the ground that it violates her rights under ss. 7, 12 and 15(1) of
the Charter, and is therefore, to the extent it precludes a terminally ill person from
committing "physician-assisted" suicide, of no force and effect by virtue of s. 52(1) of the
Constitution Act, 1982. The court dismissed the appellant's application and the majority
of the Court of Appeal affirmed the judgment.
Held (Lamer C.J. and L'Heureux-Dubé, Cory and McLachlin JJ. dissenting): The appeal
should be dismissed. Section 241(b) of the Code is constitutional.
Per La Forest, Sopinka, Gonthier, Iacobucci and Major JJ.: The appellant's claim under s.
7 of the Charter is based on an alleged violation of her liberty and security of the person
interests. These interests cannot be divorced from the sanctity of life, which is the third
value protected by s. 7. Even when death appears imminent, seeking to control the
manner and timing of one's death constitutes a conscious choice of death over life. It
follows that life as a value is also engaged in the present case. Appellant's security of the
person interest must be considered in light of the other values mentioned in s. 7.
Security of the person in s. 7 encompasses notions of 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 which is free from state interference, and basic
human dignity. The prohibition in s. 241(b), which is a sufficient interaction with the
justice system to engage the provisions of s. 7, deprives the appellant of autonomy over
her person and causes her physical pain and psychological stress in a manner which
impinges on the security of her person. Any resulting deprivation, however, is not
contrary to the principles of fundamental justice. The same conclusion is applicable with
respect to any liberty interest which may be involved.
The expression "principles of fundamental justice" in s. 7 of the Charter implies that
there is some consensus that these principles are vital or fundamental to our societal
notion of justice. 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
56
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.
Assisted suicide, outlawed under the common law, has been prohibited by Parliament
since the adoption of Canada's first Criminal Code. The long-standing blanket prohibition
in s. 241(b), which fulfils the government's objective of protecting the vulnerable, is
grounded in the state interest in protecting life and reflects the policy of the state that
human life should not be depreciated by allowing life to be taken. This state policy is part
of our fundamental conception of the sanctity of life. A blanket prohibition on assisted
suicide similar to that in s. 241(b) also seems to be the norm among Western
democracies, and such a prohibition has never been adjudged to be unconstitutional or
contrary to fundamental human rights. These societies, including Canada, recognize and
generally apply the principle of the sanctity of life subject to narrow exceptions where
notions of personal autonomy and dignity must prevail. Distinctions between passive and
active forms of intervention in the dying process continue to be drawn and assisted
suicide in situations such as the appellant's is prohibited with few exceptions. No
consensus can be found in favour of the decriminalization of assisted suicide. To the
extent that there is a consensus, it is that human life must be respected. This consensus
finds legal expression in our legal system which prohibits capital punishment. The
prohibition against assisted suicide serves a similar purpose. Parliament's repeal of the
offence of attempted suicide from the Criminal Code was not a recognition that suicide
was to be accepted within Canadian society. Rather, this action merely reflected the
recognition that the criminal law was an ineffectual and inappropriate tool for dealing
with suicide attempts. Given the concerns about abuse and the great difficulty in creating
appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or
unfair. The prohibition relates to the state's interest in protecting the vulnerable and is
reflective of fundamental values at play in our society. Section 241(b) therefore does not
infringe s. 7 of the Charter.
As well, s. 241(b) of the Code does not infringe s. 12 of the Charter. The appellant is not
subjected by the state to any form of cruel and unusual treatment or punishment. Even
assuming that "treatment" within the meaning of s. 12 may include that imposed by the
state in contexts other than penal or quasi-penal, a mere prohibition by the state on certain
action cannot constitute "treatment" under s. 12. There must be some more active state
process in operation, involving an exercise of state control over the individual, whether it
be positive action, inaction or prohibition. To hold that the criminal prohibition in s.
241(b), without the appellant being in any way subject to the state administrative or
justice system, falls within the bounds of s. 12 would stretch the ordinary meaning of
being "subjected to . . . treatment" by the state.
It is preferable in this case not to decide the difficult and important issues raised by the
application of s. 15 of the Charter, but rather to assume that the prohibition on assisted
suicide in s. 241(b) of the Code infringes s. 15, since any infringement of s. 15 by s.
241(b) is clearly justified under s. 1 of the Charter. Section 241(b) has a pressing and
substantial legislative objective and meets the proportionality test. A prohibition on
giving assistance to commit suicide is rationally connected to the purpose of s. 241(b),
57
which is to protect and maintain respect for human life. This protection is grounded on a
substantial consensus among western countries, medical organizations and our own Law
Reform Commission that in order to protect life and those who are vulnerable in society
effectively, a prohibition without exception on the giving of assistance to commit suicide
is the best approach. Attempts to modify this approach by creating exceptions or
formulating safeguards to prevent excesses have been unsatisfactory. Section 241(b) is
thus not overbroad since there is no halfway measure that could be relied upon to achieve
the legislation's purpose fully. In dealing with this contentious, complex and morally
laden issue, Parliament must be accorded some flexibility. In light of the significant
support for s. 241(b) or for this type of legislation, the government had a reasonable basis
for concluding that it had complied with the requirement of minimum impairment.
Finally, the balance between the restriction and the government objective is also met.
Per L'Heureux-Dubé and McLachlin JJ. (dissenting): Section 241(b) of the Code
infringes the right to security of the person included in s. 7 of the Charter. This right has
an element of personal autonomy, which protects the dignity and privacy of individuals
with respect to decisions concerning their own body. A legislative scheme which limits
the right of a person to deal with her body as she chooses may violate the principles of
fundamental justice under s. 7 if the limit is arbitrary. A particular limit will be arbitrary
if it bears no relation to, or is inconsistent with, the objective that lies behind the
legislation. When one is considering whether a law breaches the principles of
fundamental justice under s. 7 by reason of arbitrariness, the focus is on whether a
legislative scheme infringes a particular person's protected interests in a way that cannot
be justified having regard to the objective of this scheme. The principles of fundamental
justice require that each person, considered individually, be treated fairly by the law. The
fear that abuse may arise if an individual is permitted that which she is wrongly denied
plays no part at the s. 7 stage. Any balancing of societal interests against the interests of
the individual should take place within the confines of s. 1 of the Charter. Here,
Parliament has put into force a legislative scheme which makes suicide lawful but
assisted suicide unlawful. The effect of this distinction is to deny to some people the
choice of ending their lives solely because they are physically unable to do so, preventing
them from exercising the autonomy over their bodies available to other people. The
denial of the ability to end their life is arbitrary and hence amounts to a limit on the right
to security of the person which does not comport with the principles of fundamental
justice.
Section 241(b) of the Code is not justified under s. 1 of the Charter. The practical
objective of s. 241(b) is to eliminate the fear of lawful assisted suicide's being abused and
resulting in the killing of persons not truly and willingly consenting to death. However,
neither the fear that unless assisted suicide is prohibited, it will be used for murder, nor
the fear that consent to death may not in fact be given voluntarily, is sufficient to override
appellant's entitlement under s. 7 to end her life in the manner and at the time of her
choosing. The safeguards in the existing provisions of the Criminal Code largely meet the
concerns about consent. The Code provisions, supplemented, by way of remedy, by a
stipulation requiring a court order to permit the assistance of suicide in a particular case
only when the judge is satisfied that the consent is freely given, will ensure that only
those who truly desire to bring their lives to an end obtain assistance.
58
Section 15 of the Charter has no application in this case. This is not a case about
discrimination and to treat it as such may deflect the equality jurisprudence from the true
focus of s. 15.
Although some of the conditions stated by Lamer C.J. seem unnecessary in this case, the
remedy proposed is generally agreed with. What is required will vary from case to case.
The essential in all cases is that the judge be satisfied that if and when the assisted suicide
takes place, it will be with the full and free consent of the applicant.
Per Lamer C.J. (dissenting): Section 241(b) of the Code infringes the right to equality
contained in s. 15(1) of the Charter. While, at first sight, s. 241(b) is apparently neutral in
its application, its effect creates an inequality since it prevents persons physically unable
to end their lives unassisted from choosing suicide when that option is in principle
available to other members of the public without contravening the law. This inequality -the deprivation of the right to choose suicide -- may be characterized as a burden or
disadvantage, since it limits the ability of those who are subject to this inequality to take
and act upon fundamental decisions regarding their lives and persons. For them, the
principles of self-determination and individual autonomy, which are of fundamental
importance in our legal system, have been limited. This inequality is imposed on persons
unable to end their lives unassisted solely because of a physical disability, a personal
characteristic which is among the grounds of discrimination listed in s. 15(1).
Section 241(b) of the Code is not justifiable under s. 1 of the Charter. While the objective
of protecting vulnerable persons from being pressured or coerced into committing suicide
is sufficiently important to warrant overriding a constitutional right, s. 241(b) fails to
meet the proportionality test. The prohibition of assisted suicide is rationally connected to
the legislative objective, but the means chosen to carry out the objective do not impair the
appellant's equality rights as little as reasonably possible. The vulnerable are effectively
protected under s. 241(b) but the section is over-inclusive. Those who are not vulnerable
or do not wish the state's protection are also brought within the operation of s. 241(b)
solely as a result of a physical disability. An absolute prohibition that is indifferent to the
individual or the circumstances cannot satisfy the constitutional duty on the government
to impair the rights of persons with physical disabilities as little as reasonably possible.
The fear that the decriminalization of assisted suicide will increase the risk of persons
with physical disabilities being manipulated by others does not justify the over-inclusive
reach of s. 241(b).
In view of the findings under s. 15(1), there is no need to address the constitutionality of
the legislation under ss. 7 or 12 of the Charter.
Pursuant to s. 52(1) of the Constitution Act, 1982, s. 241(b) is declared to be of no force
or effect, on the condition that the effect of this declaration be suspended for one year
from the date of this judgment to give Parliament adequate time to decide what, if any,
legislation should replace s. 241(b). While a personal remedy under s. 24(1) of the
Charter is rarely available in conjuncture with action under s. 52(1), it is appropriate in
this case to grant the appellant, subject to compliance with certain stated conditions, a
constitutional exemption from the operation of s. 241(b) during the period of suspension.
A constitutional exemption may only be granted during the period of a suspended
declaration of invalidity. During that one-year suspension period, this exemption will also
be available to all persons who are or will become physically unable to commit
unassisted suicide and whose equality rights are infringed by s. 241(b), and it may be
59
granted by a superior court upon application if the stated conditions, or similar conditions
tailored to meet the circumstances of particular cases, are met.
Per Cory J. (dissenting): Substantially for the reasons given by Lamer C.J. and
McLachlin J., s. 241(b) of the Code infringes ss. 7 and 15(1) of the Charter and is not
justifiable under s. 1 of the Charter.
Section 7 of the Charter, which grants Canadians a constitutional right to life, liberty and
the security of the person, is a provision which emphasizes the innate dignity of human
existence. Dying is an integral part of living and, as a part of life, is entitled to the
protection of s. 7. It follows that the right to die with dignity should be as well protected
as is any other aspect of the right to life. State prohibitions that would force a dreadful,
painful death on a rational but incapacitated terminally ill patient are an affront to human
dignity.
There is no difference between permitting a patient of sound mind to choose death with
dignity by refusing treatment and permitting a patient of sound mind who is terminally ill
to choose death with dignity by terminating life preserving treatment, even if, because of
incapacity, that step has to be physically taken by another on her instructions. Nor is there
any reason for failing to extend that same permission so that a terminally ill patient facing
death may put an end to her life through the intermediary of another. Since the right to
choose death is open to patients who are not physically handicapped, there is no reason
for denying that choice to those that are. This choice for a terminally ill patient would be
subject to conditions. With those conditions in place, s. 7 of the Charter can be applied to
enable a court to grant the relief proposed by Lamer C.J.
Section 15(1) of the Charter can also be applied to grant the same relief at least to
handicapped terminally ill patients.
Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.) [1990] 1
S.C.R. 1123 Vagueness -- Criminal Code prohibiting communications in public
for the purpose of prostitution and keeping of common bawdy-houses -- Whether
the Code impermissibly vague – protection of economic rights-- Freedom of
expression
Constitutional law -- Charter of Rights -- Freedom of expression -- Criminal Code
prohibiting under s. 195.1(1)(c) communications in public for the purpose of
prostitution and under s. 193 the keeping of common bawdy-houses
Present: Dickson C.J. and McIntyre, Lamer, Wilson, La Forest, L'Heureux-Dubé and
Sopinka JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Constitutional law -- Charter of Rights -- Fundamental justice -- Vagueness -- Criminal
Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of
prostitution and under s. 193 the keeping of common bawdy-houses -- Whether ss. 193
and 195.1(1)(c) of the Code impermissibly vague -- Whether ss. 193 and 195.1(1)(c)
infringe s. 7 of the Canadian Charter of Rights and Freedoms -- If so, whether limit
imposed by ss. 193 and 195.1(1)(c) upon s. 7 justifiable under s. 1 of the Charter -Whether s. 7 protects economic rights.
60
Constitutional law -- Charter of Rights -- Freedom of expression -- Criminal Code
prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution
and under s. 193 the keeping of common bawdy-houses -- Whether ss. 193 and
195.1(1)(c) of the Code infringe s. 2(b) of the Canadian Charter of Rights and Freedoms - If so, whether limit imposed by ss. 193 and 195.1(1)(c) upon s. 2(b) justifiable under s.
1 of the Charter.
Criminal law -- Prostitution -- Keeping common bawdy-house -- Criminal Code
prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution
and under s. 193 the keeping of common bawdy-houses -- Whether ss. 193 and
195.1(1)(c) of the Code infringe ss. 2(b) and 7 of the Canadian Charter of Rights and
Freedoms -- If so, whether limit imposed by ss. 193 and 195.1(1)(c) upon ss. 2(b) and 7
justifiable under s. 1 of the Charter.
The Lieutenant Governor in Council of Manitoba referred to the Court of Appeal of that
province several constitutional questions to determine whether s. 193 or s. 195.1(1)(c) of
the Criminal Code, or a combination of both, violates s. 2(b) or s. 7 of the Canadian
Charter of Rights and Freedoms; and, if so, whether either one or a combination of both
can be justified under s. 1 of the Charter. Section 193 prohibits the keeping of a common
bawdy-house and s. 195.1(1)(c) prohibits a person from communicating or attempting to
communicate with any person in a public place for the purpose of engaging in
prostitution or of obtaining the sexual services of a prostitute. The Court of Appeal
answered that s. 193 or s. 195.1(1)(c), or a combination of both, was not inconsistent with
s. 2(b) or s. 7 of the Charter.
Held (Wilson and L'Heureux-Dubé JJ. dissenting): The appeal should be dismissed.
Section 193 of the Code, separately or in combination with s. 195.1(1)(c), is not
inconsistent with s. 2(b) of the Charter. Section 195.1(1)(c) of the Code is inconsistent
with s. 2(b) of the Charter but is justifiable under s. 1 of the Charter. Sections 193 and
195.1(1)(c), separately or in combination, are not inconsistent with s. 7 of the Charter.
Per Dickson C.J. and La Forest and Sopinka JJ.: Section 195.1(1)(c) of the Code, but not
s. 193, represents a prima facie infringement of s. 2(b) of the Charter. The scope of
freedom of expression does extend to the activity of communication for the purpose of
engaging in prostitution.
The limits on freedom of expression imposed by s. 195.1(1)(c) of the Code are justifiable
under s. 1 of the Charter. Section 195.1(1)(c) is aimed at taking solicitation for the
purposes of prostitution off the streets and out of public view and, to that end, seeks to
eradicate the various forms of social nuisance arising from the public display of the sale
of sex. These include street congestion, noise, harassment of non-participants and general
detrimental effects on passers-by or bystanders, especially children. The legislation,
however, does not attempt, at least in any direct manner, to address the exploitation,
degradation and subordination of women that are part of the contemporary reality of
prostitution. The elimination of street solicitation and the social nuisance which it creates
is a government objective of sufficient importance to justify a limitation on the freedom
of expression guaranteed by s. 2(b) of the Charter.
Further, the activity to which the impugned legislation is directed is expression with an
economic purpose. Communications regarding an economic transaction of sex for money
do not lie at, or even near, the core of the guarantee of freedom of expression.
Considering the nature of the expression and the nature of the infringing legislation, the
61
means embodied in s. 195.1(1)(c) of the Code are appropriately tailored to meet the
government's objective. First, there is a rational connection between the impugned
legislation and the prevention of the social nuisance associated with the public display of
the sale of sex. Second, s. 195.1(1)(c) is not unduly intrusive. Although s. 195.1(1)(c) is
not confined to places where there will necessarily be many people who will be offended
by street solicitation, the section is not overly broad because the objective of the
provision is not restricted to the control of actual disturbances or nuisances but extends to
the general curtailment of visible solicitation for the purposes of prostitution. Also, the
definition of communication may be wide but the courts are capable of restricting the
meaning of "communication" in its context by reference to the purpose of the impugned
legislation. Third, the effects of the legislation on freedom of expression are not so severe
as to outweigh the government's pressing and substantial objective. The curtailment of
street solicitation is in keeping with the interests of many in our society for whom the
nuisance-related aspects of solicitation constitute serious problems. A legislative scheme
aimed at street solicitation must be, in view of this Court's decision in Westendorp, of a
criminal nature.
Given the possibility of imprisonment contemplated by ss. 193 and 195.1(1)(c) of the
Code, these sections, separately or in combination, clearly infringe the right to liberty of
the person included in s. 7 of the Charter, but such infringement is effected in accordance
with the principles of fundamental justice. While vagueness should be recognized as
contrary to the principles of fundamental justice, ss. 193 and 195.1(1)(c) are not so vague
as to violate the requirement that the criminal law be clear. The terms "prostitution",
"keeps" a bawdy-house, "communicate" and "attempts to communicate" are not so
imprecise, given the benefit of judicial interpretation, that their meaning is impossible to
discern in advance. Further, the fact that street solicitation is criminalized while
prostitution per se remains legal does not offend the basic tenets of our legal system.
Unless or until this Court is faced with the direct question of Parliament's competence to
criminalize prostitution, nothing prohibits Parliament from using the criminal law to
express society's disapprobation of street solicitation.
Per Lamer J.: Section 195.1(1)(c) of the Code restricts freedom of expression as
guaranteed by s. 2(b) of the Charter. Section 2(b) protects all content of expression
irrespective of the meaning or message sought to be conveyed. Most forms of expression
are protected as well and the mere fact that a form has been criminalized does not take it
beyond the reach of Charter protection. Only activities which convey a meaning or a
message through a violent form of expression that directly attacks the physical liberty and
integrity of another person would not be protected by s. 2(b). Where, as in this case, an
activity conveys or attempts to convey a meaning or message through a non-violent form
of expression, this activity falls within the sphere of conduct protected by s. 2(b). The
government's purpose in enacting s. 195.1(1)(c) was to prohibit a particular content of
expression and to prohibit access to the message sought to be conveyed. Section
195.1(1)(c) therefore imposed a limit on s. 2(b). In respect of s. 193 of the Code, since the
appellants argued that s. 2(b) was violated by the combination of ss. 193 and 195.1(1)(c),
there is no need to rely on s. 193 to reach the conclusion that a freedom under the Charter
has been restricted.
Section 195.1(1)(c) of the Code constitutes a reasonable limit upon freedom of
expression. The section was designed to prevent the nuisances caused by the public
62
solicitation of prostitutes and their customers, including traffic congestion and general
street disorder; to restrict the criminal activities related to prostitution such as possession
and trafficking of drugs, violence and pimping; and also to control prostitution by
minimizing the exposure to street solicitation of uninterested individuals, specially the
young girls who could be lured into prostitution, an activity degrading to women,
exploitive and, in some cases, dangerous. These legislative objectives are of sufficient
importance for the purpose of s. 1 of the Charter to justify limiting freedom of
expression. The means chosen by the government are also proportional to the objectives.
First, the scheme set out in s. 195.1(1)(c) of the Code is rationally connected to the
legislative objectives of curbing nuisances and related criminal activities associated with
public solicitation for the purpose of prostitution. Second, s. 195.1(1)(c) interferes as little
as possible with freedom of expression. While s. 195.1(1)(c) applies to all forms of
communication, it is limited to communications made in public for the purpose of
prostitution. This link between place and purpose in the legislation is reflective of the
tailoring of the means used to the legislative objective of preventing the mischief that is
produced by the public solicitation of sexual services. Parliament was faced with a
myriad of views and options from which to choose of dealing with the problem of street
solicitation for the purpose of prostitution and it is not the role of this Court to secondguess the wisdom of policy choices made by the legislator. Third, when one weighs the
nature of the legislative objectives against the extent of the restriction on the freedom of
expression, there is no disproportionality between the effects of s. 195.1(1)(c) and its
objectives.
Sections 193 and 195.1(1)(c) of the Code do not infringe s. 7 of the Charter. While these
sections have the potential to deprive one of liberty and security of the person upon
conviction, they are not so vague as to offend the principles of fundamental justice. In
neither case can it be said that fair notice of what is proscribed is not given to citizens.
Courts in the past have been able to give sensible meaning to the terms used in these
sections and have applied them without difficulty. This is indicative of an ascertainable
standard of conduct. The discretion of law enforcement officials is thus sufficiently
limited by the explicit legislative standards set out in the sections.
While prostitution is not illegal in Canada, ss. 193 and 195.1(1)(c) of the Code do not
infringe prostitutes' right to liberty in not allowing them to exercise their chosen
profession, or their right to security of the person in not permitting them to exercise their
profession in order to provide the basic necessities of life. The rights to liberty and
security of the person included in s. 7 of the Charter do not encompass the right to
exercise a chosen profession. Section 7, like the rest of the Charter, with the possible
exception of s. 6(2)(b) and (4), does not concern itself with economic rights. Section 7 is
mainly concerned with the restrictions on liberty and security of the person which occur
as a result of an individual's interaction with the justice system and its administration.
Section 7 is implicated: when the state, by resorting to the justice system, restricts an
individual's physical liberty in any circumstances; when the state restricts individuals'
security of the person by interfering with, or removing from them, control over their
physical or mental integrity; and, finally, when the state, either directly or through its
agents, restricts certain privileges or liberties by using the threat of punishment in cases
of non-compliance. A generous interpretation of the Charter that extends the full benefit
63
of its protection to individuals is achieved without the incorporation of all other rights
and freedoms in the Charter within s. 7.
Per Wilson and L'Heureux-Dubé JJ. (dissenting): Section 195.1(1)(c) of the Code
infringes the guarantee of freedom of expression in s. 2(b) of the Charter. Commercial
expression is protected by s. 2(b) and s. 195.1(1)(c) prohibits persons from
communicating for an economic purpose -- namely, the sale of sexual services. Where, as
in this case, the state is concerned about the harmful consequences that flow from
communicative activity with an economic purpose and where, rather than address those
consequences directly, the legislature simply proscribes the content of communicative
activity, the provision, if it is to be upheld, must be justified as a reasonable limit under s.
1 of the Charter.
Section 193 of the Code, either on its own or in combination with s. 195.1(1)(c), does not
infringe the guarantee of freedom of expression. Section 193 deals with keeping or being
associated with a common bawdy-house and places no constraints on communicative
activity in relation to a common bawdy-house. The word "expression" in s. 2(b) is not so
broad as to capture activities such as keeping a common bawdy-house.
Section 195.1(1)(c) of the Code is not justifiable under s. 1 of the Charter. Section
195.1(1)(c) was not designed to criminalize prostitution per se or to stamp out all the ills
and vices that flow from prostitution such as drug addiction or juvenile prostitution. The
legislation was designed only to deal with the social nuisance arising from the public
display of the sale of sex. The high visibility of this activity is offensive and has harmful
effects on those compelled to witness it, especially children. While the legislative
objective is sufficiently important to warrant overriding a constitutional freedom, s.
195.1(1)(c) fails to meet the proportionality test. The measures are rationally connected to
the prevention of public nuisance caused by street solicitation, but s. 195.1(1)(c) is not
sufficiently tailored to the objective and constitutes a more serious impairment of the
individual's freedom than the avowed legislative objective would warrant. The
prohibition is not confined to places where there will necessarily be lots of people to be
offended or inconvenienced by it, and no nuisance or adverse impact of any kind on other
people need be shown, or even be shown to be a possibility, in order that the offence be
complete. Further, the broad scope of the phrase "in any manner communicate or attempt
to communicate" seems to encompass every conceivable method of human expression.
Some definitional limits would appear to be desirable in any activity labelled as criminal.
To render criminal the communicative acts of persons engaged in a lawful activity which
is not shown to be harming anybody cannot be justified by the legislative objective
advanced in its support.
Sections 193 and 195.1(1)(c) of the Code infringe the right to liberty of the person in s. 7
of the Charter because a person convicted under these sections faces a possible prison
sentence. But ss. 193 and 195.1(1)(c) are not so vague as to fail to accord with the
principles of fundamental justice. These sections, read on their own or together, do not
violate the requirement that the criminal law be clear. Courts have been called upon to
interpret some of the terms used in these sections, but courts are regularly called upon to
resolve ambiguities in legislation. This does not necessarily make such legislation
vulnerable to constitutional attack.
However, where a law infringes the right to liberty under s. 7 in a way that also infringes
another constitutionally entrenched right (which infringement is not saved by s. 1), such
64
law cannot be said to accord with the principles of fundamental justice. All the
guarantees contained in the Charter are "basic tenets of our legal system" and required to
be protected by the judiciary. Section 195.1(1)(c) which violates the guarantee of
freedom of expression in s. 2(b) and infringes the right to liberty in s. 7, must be justified
as a reasonable limit under s. 1 of the Charter. Section 193 does not violate s. 2(b) and,
while s. 193 infringes a person's right to liberty through the threat of imprisonment,
absent the infringement of some other Charter guarantee, this particular deprivation of
liberty does not violate a principle of fundamental justice. Nor are ss. 193 and 195.1(1)(c)
so intimately linked as to be part of a single legislative scheme enabling one to say that
because part of the scheme violates a principle of fundamental justice the whole scheme
violates that principle.
Section 195.1(1)(c) of the Code is not justifiable under s. 1 of the Charter. Curbing the
public nuisance caused by street solicitation is a legislative objective of sufficient
importance for the purpose of s. 1 and the measures are rationally connected to the
objective. But to imprison people for exercising their constitutionally protected freedom
of expression, even if they are exercising it for purposes of prostitution, is not a
proportionate way of dealing with the objective. Where communication is a lawful
activity and prostitution is also a lawful activity, the legislative response of imprisonment
is far too drastic.
Canada (Minister of Employment and Immigration) v. Chiarelli [1992] 1
S.C.R. 711 Right to liberty and right not to be deprived thereof except in
accordance with principles of fundamental justice -- Deportation of permanent
resident convicted of serious crime -- Appeal to Immigration Appeal Board on
compassionate grounds barred if Security Intelligence Review Committee finding
involvement with organized crime -- Cruel and unusual punishment or treatment
–Equality Rights – natural justice
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory,
McLachlin, Stevenson and Iacobucci JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Immigration -- Deportation -- Permanent resident convicted of serious offence and
ordered deported -- Appeal to Immigration Appeal Board on compassionate grounds
barred if Security Intelligence Review Committee finding involvement with organized
crime -- Summary provided of Committee's in camera proceedings -- Whether
infringement of s. 7 right to liberty and right not to be deprived thereof except in
accordance with principles of fundamental justice -- Immigration Act, 1976, S.C. 197677, c. 52, ss. 4(2), 19(1)(d)(ii), 27(1)(d)(i), (ii), (3), (4), 32(2), 72(1)(a), (b), 82.1(1),
(2)(a), (c), (3), (4), (5), (6)(a), (b), 83(1)(a), (2).
Constitutional law -- Charter of Rights -- Right to liberty and right not to be deprived
thereof except in accordance with principles of fundamental justice -- Deportation of
permanent resident convicted of serious crime -- Appeal to Immigration Appeal Board on
compassionate grounds barred if Security Intelligence Review Committee finding
involvement with organized crime -- Summary provided of Committee's in camera
proceedings -- Whether infringement of s. 7 right to liberty and right not to be deprived
65
thereof except in accordance with principles of fundamental justice -- Canadian Charter
of Rights and Freedoms, ss. 1, 7.
Constitutional law -- Charter of Rights -- Cruel and unusual punishment or treatment -Deportation of permanent resident convicted of serious crime -- Whether infringement of
s. 12 right to freedom from cruel and unusual punishment or treatment -- Canadian
Charter of Rights and Freedoms, ss. 1, 12.
Constitutional law -- Charter of Rights -- Equality rights -- Deportation of permanent
resident convicted of serious crime -- Appeal to Immigration Appeal Board on
compassionate grounds barred if Security Intelligence Review Committee finding
involvement with organized crime -- Whether infringement of s. 15 right to equal benefit
before and under the law -- Canadian Charter of Rights and Freedoms, ss. 1, 15.
Administrative law -- Natural justice -- Fair hearing -- Security Intelligence Review
Committee considering whether permanent resident involved with organized crime -Part of Committee hearing in camera -- Background material and summary of
proceedings provided -- Finding of involvement with organized crime barring appeal to
Immigration Appeal Board on compassionate grounds.
This appeal called into question the constitutionality of the statutory scheme providing
for the deportation of a permanent resident on conviction of a serious criminal offence.
The main appeal concerned the removal of a ground of appeal from a deportation order
and the procedure by which that removal is effected. The cross-appeal attacked the
general statutory scheme.
Respondent was identified in an immigration report made by an immigration officer in
January 1986 pursuant to s. 27 of the Immigration Act, 1976, as a permanent resident
convicted of an offence for which a term of imprisonment of five years or more may be
imposed and therefore a person described in s. 27(1)(d)(ii). An adjudicator, after an
inquiry attended by appellant and his counsel, found respondent to be a person described
in that section and ordered him deported. The hearing of respondent's appeal to the
Immigration Appeal Board against the deportation order, brought pursuant to s. 72(1),
was adjourned after the Solicitor General and the Minister of Employment and
Immigration made a joint report to the Security Intelligence Review Committee pursuant
to s. 82.1(2) indicating respondent to be a person reasonably likely to engage in organized
crime.
The Review Committee conducted the required investigation and held a hearing. Prior to
the hearing respondent was provided with a document giving background information as
to the hearing and summaries of information. A summary of the evidence taken in in
camera proceedings of this hearing and provided to respondent indicated that evidence
was led that respondent, together with certain named individuals, was a member of a
criminal organization which engaged in extortion and drug related activities and that
respondent personally took part in the extortion and drug related activities of the
organization. The information made available to respondent and the criminal records of
respondent and his associates were before the Committee when he appeared and was
asked to respond. Counsel for respondent objected to the fairness and constitutionality of
the proceeding.
The Review Committee reported to the Governor in Council, pursuant to s. 82.1(6)(a),
that respondent was a person there are reasonable grounds to believe will engage in
organized crime as described in s. 19(1)(d)(ii). The Governor in Council adopted the
66
conclusion of the Review Committee and directed the appellant Minister to issue a
certificate under s. 83(1) with respect to respondent's appeal to the Immigration Appeal
Board from the deportation order. This certificate was issued, with the result that
respondent's appeal would have to be dismissed in so far as it was brought pursuant to s.
72(1)(b).
The hearing of the appeal was adjourned when respondent gave notice that he intended to
raise constitutional questions before the Board and three questions were referred to the
Federal Court of Appeal for determination. The court found that: (1) ss. 27(1)(d)(ii) and
32(2) of the Immigration Act, 1976, did not infringe ss. 7, 12 or 15 of the Charter; (2) ss.
82.1 and 83 did not infringe ss. 12 or 15 of the Charter but the question as to whether
they contravened s. 7 was not a question that the Board could refer to the Court pursuant
to s. 28(4) of the Federal Court Act; and (3) the Board would, in relying upon the
certificate, violate respondent's rights under s. 7 and this violation was not justified under
s. 1.
The constitutional questions stated in this Court queried whether: (1) ss. 82.1 and 83 of
the Immigration Act, 1976 infringed s. 7 of the Charter, and if so, whether that
infringement was justified under s. 1; (2) whether reliance upon the certificate authorized
by s. 83 of the Act filed in respondent's case infringed s. 7 because the process followed
by the Security Intelligence Review Committed did not meet the requirements of s. 7.
The respondent in the main appeal was granted leave to cross-appeal, and the
constitutional questions stated there queried whether ss. 27(1)(d)(ii) and 32(2) of the Act
infringed ss. 7, 12 and 15 of the Charter in that they required the deportation of persons
convicted of an offence carrying a maximum punishment of five years or more, without
reference to the circumstances of the offence or the offender, and if so, whether that
infringement was justified under s. 1.
Held: The appeal should be allowed and the cross-appeal dismissed. With respect to the
main appeal, assuming without deciding that s. 7 is applicable, ss. 82.1 and 83 of the
Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the
Canadian Charter of Rights and Freedoms and reliance upon the certificate authorized by
s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7 having regard
to the process followed by the Security Intelligence Review Committee. With respect to
the cross-appeal, the requirement that persons convicted of an offence carrying a
maximum punishment of five years or more be deported, without reference to the
circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12
assuming without deciding that these sections applied.
The Court must look to the principles and policies underlying immigration law in
determining the scope of principles of fundamental justice as they apply here. 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 common law recognizes no such right and the
Charter recognizes the distinction between citizens and non-citizens. While permanent
residents are given the right to move to, take up residence in, and pursue the gaining of a
livelihood in any province in s. 6(2), only citizens are accorded the right "to enter, remain
in and leave Canada" in s. 6(1). Parliament therefore has the right to adopt an
immigration policy and to enact legislation prescribing the conditions under which noncitizens will be permitted to enter and remain in Canada. It has done so in the
Immigration Act.
67
A permanent resident has a right to remain in Canada only if he or she has not been
convicted of a more serious offence -- one for which a term of imprisonment of five years
or more may be imposed. This condition represents a legitimate, non-arbitrary choice by
Parliament of a situation in which it is not in the public interest to allow a non-citizen to
remain in the country. All persons falling within the class of permanent residents
described in s. 27(1)(d)(ii) have deliberately violated an essential condition under which
they were permitted to remain in Canada. Fundamental justice is not breached by
deportation: it is the only way to give practical effect to the termination of a permanent
resident's right to remain in Canada. Compliance with fundamental justice does not
require that other aggravating or mitigating circumstances be considered.
The deportation authorized by ss. 27(1)(d)(ii) and 32(2) was not cruel and unusual. The
standards of decency are not outraged by the deportation of a permanent resident who has
deliberately violated an essential condition of his or her being permitted to remain in
Canada by committing a serious criminal offence. Rather, those standards would be
outraged if individuals granted conditional entry into Canada were permitted to violate
those conditions deliberately and without consequence.
A deportation scheme applicable to permanent residents, but not to citizens, does not
infringe s. 15 of the Charter. Section 6 of the Charter specifically provides for
differential treatment of citizens and permanent residents in this regard. While permanent
residents are given various mobility rights in s. 6(2), only citizens are accorded the right
to enter, remain in and leave Canada in s. 6(1).
The effect of the certificate under s. 83 was to direct the Immigration Appeal Board to
dismiss any appeal made on compassionate grounds pursuant to s. 72(1)(b) and so limit
the appeal to questions of fact or law or mixed fact and law. Neither the substantive
provisions nor the procedure followed by the Review Committee resulted in a s. 7
violation.
The impugned legislation is consistent with s. 7 of the Charter. Section 7 does not
mandate the provision of a compassionate appeal from a decision which comports with
principles of fundamental justice. The right to appeal from the adjudicator's decision, first
to the Board on questions of fact or law or mixed fact and law, and then to the Federal
Court of Appeal with leave on questions of law, offers ample protection to an individual
from an erroneous decision by the adjudicator and clearly satisfies the principles of
fundamental justice. The absence of an appeal on wider grounds than those on which the
initial decision was based does not violate s. 7. There has never been a universally
available right of appeal from a deportation order on "all the circumstances of the case".
The scope of principles of fundamental justice will vary with the context and the interests
at stake. Similarly, the rules of natural justice and the concept of procedural fairness,
which may inform principles of fundamental justice in a particular context, are not fixed
standards. In assessing whether a procedure accords with fundamental justice, it may be
necessary to balance competing interests of the state and the individual.
Assuming that the proceedings before the Review Committee were subject to the
principles of fundamental justice, those principles were observed, having regard to the
information disclosed to respondent, the procedural opportunities available to him, and
the competing interests at play in this area.
In the context of hearings conducted by the Review Committee pursuant to a joint report,
an individual has an interest in a fair procedure since the Committee's investigation may
68
result in its recommending to the Governor in Council that a s. 83 certificate issue,
removing an appeal on compassionate grounds. However, the state also has a
considerable interest in effectively conducting national security and criminal intelligence
investigations and in protecting police sources. The Canadian Security Intelligence
Service Act and the Security Intelligence Review Committee Rules recognize the
competing individual and state interests and attempt to find a reasonable balance between
them. The Rules expressly direct that the Committee's discretion be exercised with regard
to this balancing of interests.
The various documents given respondent provided sufficient information to know the
substance of the allegations against him, and to be able to respond. It was not necessary,
in order to comply with fundamental justice in this context, that respondent also be given
details of the criminal intelligence investigation techniques or police sources used to
acquire that information.
Idziak v. Canada (Minister of Justice) [1992] 3 S.C.R. 631: -- Extradition -Application to Minister to exercise discretion not to extradite -- Internal
memorandum advising minister -- Minister not informing fugitive of memorandum
-- Whether s. 7 right to fundamental justice infringed -- Canadian Charter of
Rights and Freedoms, s. 7. Prerogative writs -- Habeas corpus with certiorari in
aid
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Cory, McLachlin and
Iacobucci JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Fundamental justice -- Extradition -Application to Minister to exercise discretion not to extradite -- Internal memorandum
advising minister -- Minister not informing fugitive of memorandum -- Whether s. 7 right
to fundamental justice infringed -- Canadian Charter of Rights and Freedoms, s. 7.
Prerogative writs -- Habeas corpus with certiorari in aid -- Fugitive committed for
extradition -- Whether writ lies before actual process of extradition commences.
The U.S. sought to extradite appellant to face charges in Michigan of participating in a
conspiracy to obtain funds from investors through fraudulent representations regarding
two Canadian corporations. Appellant was arrested on a warrant of apprehension in 1987
and a warrant for his committal was issued after the extradition hearing. The Supreme
Court of Ontario allowed in part his application to quash the warrant of committal. The
prosecution appealed and appellant cross-appealed on the remaining charges on which
the warrant of committal was outstanding. Both the appeal and the cross-appeal were
abandoned.
Appellant sought, under s. 25 of the Extradition Act, to have the Minister of Justice refuse
to exercise the Minister's discretionary authority to surrender him to the U.S. authorities.
The minister, however, advised him that there were no grounds justifying a refusal to
surrender him and signed the warrant of surrender.
Counsel for appellant then learned of an internal memorandum which the Minister had
reviewed before making his decision. Appellant requested but never received a copy. He
69
then commenced these proceedings by applying to the Supreme Court of Ontario for a
writ of habeas corpus with certiorari in aid to set aside the warrant of surrender on the
ground that the minister had denied his rights to fundamental justice guaranteed by s. 7 of
the Canadian Charter of Rights and Freedoms. The application was dismissed as was the
appeal to the Court of Appeal. This appeal is from the decision of the Court of Appeal.
At issue here are: (1) whether this Court has jurisdiction to hear the appeal, and (2) if so,
whether the Minister breached the principles of fundamental justice guaranteed by s. 7 of
the Charter in reaching the decision not to refuse to surrender appellant. Leave to appeal
had been restricted to the second issue.
Held: The appeal should be dismissed.
Per L'Heureux-Dubé, Cory and Iacobucci JJ.: When an unrestricted leave to appeal is
granted, a respondent may advance any argument supporting the judgment below subject
to the sole restriction that it does not require additional evidence to be adduced at trial.
Leave to appeal here was granted on only one ground, however, and the Court thereby
limited its own jurisdiction. While the grounds of appeal should not be expanded beyond
the ground set out in the order, the Court nonetheless should always have the capacity to
consider its own jurisdiction and should never be placed in a position requiring it to rule
on a matter in which it did not have jurisdiction. An issue as to the Court's jurisdiction is
the exception to the rule of limited jurisdiction.
Ontario's superior courts have always had jurisdiction to issue a writ of habeas corpus.
The availability of certiorari in aid, recognized by the statute, simply ensures that the
reviewing court will have access to the record of the proceedings concerning the
detention of the applicant.
The rules dealing with habeas corpus should always be given a generous and flexible
interpretation. An individual can properly invoke habeas corpus as a means of
challenging increased or secondary detention even though success would not result in the
release of the prisoner from a lawful primary detention. Here, the execution of the
warrant of surrender would result in appellant's transfer to the custody of the requesting
state. This important and far reaching restriction on his residual liberty constitutes a form
of secondary detention empowering the superior court to consider the application for the
issuance of habeas corpus. To require appellant to wait until the Canadian authorities
actually initiated the surrender phase by confining him for the purposes of transfer to the
United States before applying for habeas corpus would place an unfair and intolerable
burden upon him and would be contrary to the nature of the remedy habeas corpus is
designed to provide. The time constraints alone would place the remedy beyond reach.
The provincial superior courts and the Federal Court share concurrent jurisdiction to hear
all habeas corpus applications other than those specified in s. 17(6) of the Federal Court
Act. The Federal Court Act does not remove the historic and long standing jurisdiction of
provincial superior courts to hear an application for a writ of habeas corpus. To remove
that jurisdiction from the superior courts would require clear and direct statutory
language.
The appellant was not required to proceed in the Federal Court in spite of any
concurrency of jurisdiction. Parliament did not provide a comprehensive statutory
scheme of review, tailored to the extradition process.
This Court could appropriately consider appellant's allegation of a reasonable
apprehension of bias based upon the statutory scheme. Ample notice was given because it
70
was raised in both the application for leave to appeal and appellant's factum. Respondents
were given the opportunity to file any additional evidence and have suffered no real
prejudice by the loss of the opportunity to respond to this claim in the courts below.
The decision of the Minister to issue a warrant of surrender pursuant to s. 25 of the
Extradition Act must be exercised in accordance with the "principles of fundamental
justice". This phrase includes the right to be heard by an unbiased decision-maker. At the
adjudicative end of the decision-making spectrum, the appropriate test is: could an
informed bystander reasonably perceive bias on the part of the adjudicator? At the
legislative end, the test is: has the decision-maker pre-judged the matter to such an extent
that any representations to the contrary would be futile?
The extradition process has two distinct phases. The first encompasses the court
proceedings which determine whether a factual and legal basis for extradition exists. It is
judicial in its nature and warrants the application of the full panoply of procedural
safeguards. If that process results in the issuance of a warrant of committal, then the
second phase is activated. When the Minister of Justice exercises his or her discretion in
determining whether to issue a warrant of surrender, no lis is in existence. The decisionmaking process is political in nature and is at the extreme legislative end of the
continuum of administrative decision-making. The Minister must weigh the fugitive's
representations against Canada's international treaty obligations. This is not a case of a
single official's acting as both judge and prosecutor in the same case.
The Minister acted fairly in considering the issuance of the writ of surrender. There was
no evidence of improper influence on the part of anyone involved in prosecuting the
extradition proceedings, no evidence of the minister's pre-judging the matter, and no
evidence of the minister's having an impermissible bias against appellant.
Solicitor-client privilege protected the memorandum prepared by the Minister's staff. It
contained nothing that was not known to the appellant apart from the recommendation
and was not evidence for use in an adversary proceeding. Failure to disclose did not
constitute unfairness.
Per Lamer C.J. and McLachlin J.: Apart from the issue of grounding the confidentiality
of the document on solicitor-client privilege, the reasons of Cory J. were concurred with.
That issue was specifically left open.
Per La Forest J.: The reasons of Cory J. were agreed with. In considering the issue of
surrender, the minister was engaged in making a policy decision rather in the nature of an
act of clemency and was entitled to consider the views of her officials who were versed in
the matter. She was dealing with a policy matter wholly within her discretion and there
was no reason why she should be compelled to reveal these views. A decision as to
whether the memorandum fell with the solicitor-client privilege was therefore
unnecessary.
Per Sopinka J.: The reasons of Cory J. were agreed with, subject to the reservation
expressed by Lamer C.J.
71
R. v. Pearson [1992] 3 S.C.R 665: -- Habeas corpus -- Accused charged with
trafficking in narcotics and denied bail -- Accused challenging constitutionality of
bail provisions -- Whether habeas corpus available remedy-- Right to bail -Reverse onus Presumption of innocence -- Arbitrary detention
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, McLachlin and
Iacobucci JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law -- Charter of Rights -- Remedy -- Habeas corpus -- Accused charged
with trafficking in narcotics and denied bail -- Accused challenging constitutionality of
bail provisions -- Whether habeas corpus available remedy -- Canadian Charter of
Rights and Freedoms, s. 24(1) -- Constitution Act, 1982, s. 52 -- Criminal Code, R.S.C.,
1985, c. C-46, ss. 515(6)(d), 520.
Constitutional law -- Charter of Rights -- Right to bail -- Reverse onus -- Accused
charged with trafficking in narcotics and denied bail -- Criminal Code provision
requiring accused to show cause why detention pending trial not justified -- Whether
provision infringes s. 11(e) of Canadian Charter of Rights and Freedoms -- Criminal
Code, R.S.C., 1985, c. C-46, ss. 515(6)(d), 515(10)(b).
Constitutional law -- Charter of Rights -- Fundamental justice -- Presumption of
innocence -- Right to bail -- Accused charged with trafficking in narcotics and denied
bail -- Criminal Code provision requiring accused to show cause why detention pending
trial not justified -- Whether provision infringes s. 7 of Canadian Charter of Rights and
Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, s. 515(6)(d).
Constitutional law -- Charter of Rights -- Presumption of innocence -- Reverse onus -Bail -- Accused charged with trafficking in narcotics and denied bail -- Criminal Code
provision requiring accused to show cause why detention pending trial not justified -Whether provision infringes s. 11(d) of Canadian Charter of Rights and Freedoms -Criminal Code, R.S.C., 1985, c. C-46, s. 515(6)(d).
Constitutional law -- Charter of Rights -- Arbitrary detention -- Accused charged with
trafficking in narcotics and denied bail -- Criminal Code provision requiring accused to
show cause why detention pending trial not justified -- Whether accused arbitrarily
detained -- Canadian Charter of Rights and Freedoms, s. 9 -- Criminal Code, R.S.C.,
1985, c. C-46, s. 515(6)(d).
Criminal law -- Judicial interim release -- Order of detention -- Accused charged with
trafficking in narcotics and denied bail -- Criminal Code provision requiring accused to
show cause why detention pending trial not justified -- Whether provision infringes ss. 7,
9, 11(d) or 11(e) of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C.,
1985, c. C-46, ss. 515(6)(d), 515(10)(b).
The accused was charged with five counts of trafficking in narcotics, contrary to s. 4 of
the Narcotic Control Act, and was ordered detained until trial. At the preliminary inquiry,
the accused was committed to trial and the judge refused his application, under s.
523(2)(b) of the Criminal Code, to review the order denying bail. The accused then
brought an application for habeas corpus, arguing that s. 515(6)(d) of the Code is
unconstitutional, and that accordingly his detention was illegal. This section provides that
an accused charged with having committed a drug offence under s. 4 or 5 of the Narcotic
Control Act, or with conspiracy to commit any of these offences, shall be detained in
72
custody until trial unless he shows cause why his detention is not justified. The Superior
Court judge dismissed the accused's application on the ground that there was an
alternative remedy, namely a review of the bail order under s. 520 of the Code. The Court
of Appeal allowed the accused's appeal, holding that habeas corpus was an available
remedy in the circumstances and that s. 515(6)(d) of the Code violates ss. 9, 11(d) and
11(e) of the Canadian Charter of Rights and Freedoms and is not justified under s. 1. The
court found it unnecessary to analyze s. 515(6)(d) under s. 7 of the Charter.
Held (La Forest and McLachlin JJ. dissenting): The appeal should be allowed and the
application for habeas corpus dismissed.
(1) Habeas Corpus
In the narrow circumstances of this case, habeas corpus is available as a remedy against a
denial of bail. The accused's claim is a special type of constitutional claim. He is seeking
(1) a determination that s. 515(6)(d) of the Code violates the Charter and therefore is of
no force and effect under s. 52 of the Constitution Act, 1982; and (2) a remedy under s.
24(1) of the Charter, namely a new bail hearing in accordance with criteria for
determining bail which are constitutionally valid. Where the refusal to grant bail is
challenged in a s. 52 claim coupled with an application for a remedy under s. 24(1),
habeas corpus is an adequate remedy. The constitutional claim can be determined
without evidence about the applicant's specific circumstances. If the claim is successful,
the court can then order a new bail hearing. In these circumstances, an application for
habeas corpus must not fail merely because another remedy is also available. Technical
legal distinctions which interfere with the court's ability to adjudicate Charter claims are
to be rejected. Outside the narrow circumstances of this case, however, habeas corpus is
not an appropriate remedy for a denial of bail. Under s. 24(1) of the Charter, courts
should not allow habeas corpus applications to be used to circumvent the appropriate
appeal process. In general, a challenge to a denial of bail should be brought by means of a
review under s. 520 of the Code.
(2) Validity of s. 515(6)(d) of the Criminal Code
Per Lamer C.J. and Sopinka and Iacobucci JJ.: Section 515(6)(d) of the Code, to the
extent that it requires the accused to show cause why detention is not justified, does not
violate ss. 7, 9, 11(d) or 11(e) of the Charter.
Section 11(d) of the Charter creates a procedural and evidentiary rule which operates at
the trial requiring the prosecution to prove the guilt of the accused beyond a reasonable
doubt. This section has no application at the bail stage of the criminal process where guilt
or innocence is not determined and where punishment is not imposed. But s. 11(d) does
not exhaust the operation of the presumption of innocence as a principle of fundamental
justice under s. 7 of the Charter. The presumption of innocence under s. 7 applies at all
stages of the criminal process and its particular requirements will vary according to the
context in which it comes to be applied. In this case, however, the Charter challenge falls
to be determined according to s. 11(e) of the Charter, rather than under s. 7. Section 11(e)
offers "a highly specific guarantee" which covers precisely the accused's complaint. The
substantive right in s. 7 to be presumed innocent at the bail stage does not contain any
procedural content beyond that contained in s. 11(e).
Section 11(e) creates a broad right guaranteeing both the right to obtain bail and the right
to have that bail set on reasonable terms. The meaning of "bail" in s. 11(e) includes all
forms of judicial interim release. While s. 515(6)(d) requires the accused to demonstrate
73
that detention is not justified, thereby denying the basic entitlement under s. 11(e) to be
granted bail unless pre-trial detention is justified by the prosecution, it provides "just
cause" to deny bail in certain circumstances and therefore does not violate s. 11(e). First,
the denial of bail occurs only in a narrow set of circumstances. Second, it is necessary to
promote the proper functioning of the bail system and is not undertaken for any purpose
extraneous to the bail system. Section 515(6)(d) applies only to a very small number of
offences, all of which involve the distribution of narcotics, and bail is denied only when
the persons who are charged with these offences are unable to demonstrate that detention
is not justified having regard to the specified grounds set out in s. 515(10)(a) and (b) of
the Code. The special bail rules in s. 515(6)(d) merely establish an effective bail system
for specific offences for which the normal bail system would allow continuing criminal
behaviour and an intolerable risk of absconding. Because of their unique characteristics,
the offences subject to s. 515(6)(d) are generally committed in a very different context
than most other crimes. Trafficking in narcotics occurs systematically, usually within a
highly sophisticated and lucrative commercial setting, creating huge incentives for an
offender to continue criminal behaviour even after arrest and release on bail. There is also
a marked danger that an accused charged with these offences will abscond rather than
appear for trial. Drug importers and traffickers have access both to a large amount of
funds and to organizations which can assist in a flight from justice. The special bail rules
in s. 515(6)(d) combat the pre-trial recidivism and absconding problems by requiring the
accused to demonstrate that they will not arise. The scope of these special rules is thus
carefully tailored to achieve a properly functioning bail system. Section 515(6)(d) also
applies to small or casual drug dealers, but they will normally have no difficulty
justifying their release and obtaining bail. Section 515(6)(d) allows differential treatment
based on the seriousness of the offence. Moreover, the onus which it imposes is
reasonable in the sense that it requires the accused to provide information which he is
most capable of providing.
While s. 515(6)(d) provides for persons to be "detained" within the meaning of s. 9 of the
Charter, those persons are not detained "arbitrarily". Detention under s. 515(6)(d) is not
governed by unstructured discretion. The section fixes specific conditions for bail.
Furthermore, the bail process is subject to very exacting procedural guarantees and
subject to review by a superior court.
Normally an order for a new bail hearing would have been issued under s. 686(8) of the
Code and a reasonable opportunity given to the accused to show cause why his detention
is not justified having regard to the grounds set out in s. 515(10), including s. 515(10)(b)
as altered by this Court in Morales. There will be no such order in this case, however,
since the accused has already been tried, convicted and sentenced. That order would be of
no force or effect as the issue of the accused's liberty is moot.
Per L'Heureux-Dubé and Gonthier JJ.: The reasons of Lamer C.J. were agreed with,
subject to the reasons of Gonthier J. in Morales in which he concludes that the criterion
of public interest in s. 515(10)(b) of the Code is not unconstitutional, and subject to some
concerns about the manner in which the presumption of innocence, as an integral value
protected by s. 7 of the Charter, is dealt with by the Chief Justice in relation to the bail
provisions of the Code. The analysis leading to the decision as to bail entails a
consideration and weighing of the accused's entitlement to bail or liberty interest on the
one hand, and the circumstances provided for in s. 515(10) which may justify a denial of
74
bail on the other. The liberty interest is only one albeit an important factor to be
considered and may be outweighed by others.
Per McLachlin J. (dissenting): The reasons of Lamer C.J. were agreed with except for his
conclusion that s. 515(6)(d) of the Code does not violate s. 11(e) of the Charter. Section
515(6)(d) denies bail to all persons charged with having committed an offence under s. 4
or 5 of the Narcotic Control Act who cannot show cause why their detention in custody is
not justified. This section fails to distinguish between the large-scale commercial drug
trafficker and small or casual traffickers and its wide scope can be used to deny bail to
people when there is no reason or "just cause" for doing so. The risk that the accused will
continue his criminal activity while awaiting trial or will abscond and not appear for trial
may be "just cause" for denying bail to persons charged with serious, large-scale or
commercial trafficking, but these reasons do not apply to other traffickers. Where bail is
denied without just cause, s. 11(e) of the Charter is infringed. The mere possibility of
denial of bail without "just cause" is enough to overturn s. 515(6)(d).
Section 515(6)(d) of the Code is not justifiable under s. 1 of the Charter. While the
legislative objectives of avoiding repeat offences and absconding are of sufficient
importance to warrant overriding a constitutional right, s. 515(6)(d) goes further than is
necessary to achieve those objectives. There is no reason to conclude that small and
casual traffickers pose any particular threat of repeating the offence or fleeing from their
trial. Section 515(6)(d) is thus of no force and effect pursuant to s. 52 of the Constitution
Act, 1982.
Per La Forest J. (dissenting): For the reasons given by McLachlin J., s. 515(6)(d) of the
Code violates s. 11(e) of the Charter and is not justifiable under s. 1. It is unnecessary to
deal with the other provisions of the Charter.
R. v. Morales [1992] 3 S.C.R. 711: Right to bail -- Reverse onus provision -Order of detention --Justification for detention in custody -- when necessary in
the public interest or for the protection or safety of the public -- criteria of public
interest and public safety – vagueness-- Arbitrary detention
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, McLachlin and
Iacobucci JJ.
ON APPEAL FROM THE SUPERIOR COURT FOR QUEBEC
Constitutional law -- Charter of Rights -- Right to bail -- Reverse onus provision -- Order
of detention -- Accused required under circumstances set out in ss. 515(6)(a) and
515(6)(d) of Criminal Code to show cause why detention pending trial not justified -Whether ss. 515(6)(a) and 515(6)(d) infringe s. 11(e) of Canadian Charter of Rights and
Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, ss. 515(6)(a), 515(6)(d).
Constitutional law -- Charter of Rights -- Right to bail -- Justification for detention in
custody -- Detention of accused justified under s. 515(10)(b) of Criminal Code when
necessary in the public interest or for the protection or safety of the public -- Whether
criteria of public interest and public safety in s. 515(10)(b) infringe s. 11(e) of Canadian
Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of
Charter -- Vagueness -- Criminal Code, R.S.C., 1985, c. C-46, s. 515(10)(b).
75
Constitutional law -- Charter of Rights -- Fundamental justice -- Presumption of
innocence -- Right to bail -- Detention of accused justified under s. 515(10)(b) of
Criminal Code when necessary in the public interest or for the protection or safety of the
public -- Accused required under circumstances set out in ss. 515(6)(a) and 515(6)(d) of
Code to show cause why detention pending trial not justified -- Whether ss. 515(6)(a),
515(6)(d) and 515(10)(b) infringe s. 7 of Canadian Charter of Rights and Freedoms -Criminal Code, R.S.C., 1985, c. C-46, ss. 515(6)(a), 515(6)(d), 515(10)(b).
Constitutional law -- Charter of Rights -- Presumption of innocence -- Reverse onus -Bail -- Detention of accused justified under s. 515(10)(b) of Criminal Code when
necessary in the public interest or for the protection or safety of the public -- Accused
required under circumstances set out in ss. 515(6)(a) and 515(6)(d) of Code to show
cause why detention pending trial not justified -- Whether ss. 515(6)(a), 515(6)(d) and
515(10)(b) infringe s. 11(d) of Canadian Charter of Rights and Freedoms -- Criminal
Code, R.S.C., 1985, c. C-46, ss. 515(6)(a), 515(6)(d), 515(10)(b).
Constitutional law -- Charter of Rights -- Arbitrary detention -- Detention of accused
justified under s. 515(10)(b) of Criminal Code when necessary in the public interest or
for the protection or safety of the public -- Accused required under circumstances set out
in ss. 515(6)(a) and 515(6)(d) of Code to show cause why detention pending trial not
justified -- Whether ss. 515(6)(a), 515(6)(d) and 515(10)(b) infringe s. 9 of Canadian
Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, ss. 515(6)(a),
515(6)(d), 515(10)(b).
Criminal law -- Judicial interim release -- Order of detention -- Accused required under
circumstances set out in ss. 515(6)(a) and 515(6)(d) of Criminal Code to show cause why
detention pending trial not justified -- Whether ss. 515(6)(a) and 515(6)(d) infringe ss. 7,
9, 11(d) or 11(e) of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C.,
1985, c. C-46, ss. 515(6)(a), 515(6)(d).
Criminal law -- Judicial interim release -- Justification for detention in custody -Detention of accused justified under s. 515(10)(b) of Criminal Code when necessary in
the public interest or for the protection or safety of the public -- Whether criteria of
public interest and public safety in s. 515(10)(b) infringe ss. 7, 9, 11(d) or 11(e) of
Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C., 1985, c. C-46, s.
515(10)(b).
The accused was charged with narcotics offences under ss. 4 and 5 of the Narcotic
Control Act and s. 465(1)(c) of the Criminal Code. He is alleged to have participated in a
major network to import cocaine into Canada. At the time of his arrest, he was awaiting
trial for assault with a weapon, an indictable offence. The accused was denied bail and
was ordered detained in custody until trial. Under the bail provisions of the Criminal
Code, an accused is normally granted bail but pre-trial detention is justified when the
"detention is necessary in the public interest or for the protection or safety of the public,
having regard to all the circumstances including any substantial likelihood that the
accused will, if he is released from custody, commit a criminal offence or interfere with
the administration of justice" (s. 515(10)(b)). Under s. 515(6), the onus is on the accused
to show cause why the detention is not justified when he is charged with an indictable
offence "that is alleged to have been committed while he was at large after being released
in respect of another indictable offence" (s. 515(6)(a)), or charged with having committed
a drug offence under s. 4 or 5 of the Narcotic Control Act or with conspiracy to commit
76
any of these offences (s. 515(6)(d)). The accused's application for a review of the
detention order, made to a superior court judge pursuant to s. 520 of the Code, was
granted and he was released subject to a number of conditions. The judge held that pretrial detention is only justified where it is established that the accused will not appear for
trial or would represent a danger to public safety if released. The Crown appealed to this
Court. This appeal is to determine whether ss. 515(6)(a), 515(6)(d) and 515(10)(b) of the
Criminal Code infringe ss. 7, 9, 11(d) or 11(e) of the Canadian Charter of Rights and
Freedoms; and, if so, whether the infringement is justified under s. 1 of the Charter.
Held: The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, McLachlin and Iacobucci JJ.: For the reasons
given in Pearson, the "public safety" component of s. 515(10)(b) is constitutionally valid.
Section 11(d) of the Charter creates a procedural and evidentiary rule which operates at
the trial requiring the prosecution to prove the guilt of the accused beyond a reasonable
doubt. It has no application at the bail stage where guilt or innocence is not determined
and where punishment is not imposed. The "public safety" component of s. 515(10)(b)
therefore does not infringe s. 11(d). With respect to s. 7 of the Charter, the accused's
challenge should be determined under s. 11(e) of the Charter because that section offers a
highly specific guarantee which covers precisely his claim. The presumption of
innocence is a principle of fundamental justice which applies at all stages of the criminal
process, but its procedural requirements at the bail stage are satisfied whenever the
requirements of s. 11(e) are satisfied. This section creates a basic entitlement to be
granted reasonable bail unless there is "just cause" to do otherwise. There is just cause to
deny bail under s. 11(e) if two criteria are met: the denial of bail must occur only in a
narrow set of circumstances, and the denial of bail must be necessary to promote the
proper functioning of the bail system and must not be undertaken for any purpose
extraneous to the bail system. The "public safety" component of s. 515(10)(b) meets
these criteria. First, bail is denied only for those who pose a "substantial likelihood" of
committing an offence or interfering with the administration of justice, and only where
this "substantial likelihood" endangers "the protection or safety of the public". Moreover,
detention is justified only when it is "necessary" for public safety. Second, the bail
system does not function properly if an accused interferes with the administration of
justice or commits crimes while on bail. While it is impossible to make exact predictions
about recidivism and future dangerousness, exact predictability of future dangerousness
is not constitutionally mandated. It is sufficient that the bail system establish a likelihood
of dangerousness. The bail provisions of the Code also provide for substantial procedural
safeguards against the inefficacy of predictions about dangerousness. Finally, with
respect to s. 9 of the Charter, while the "public safety" component of s. 515(10)(b)
provides for persons to be "detained" within the meaning of s. 9, those persons are not
detained "arbitrarily". Detention under the "public safety" component of s. 515(10)(b) is
not governed by unstructured discretion. The "public safety" component sets out a
process with fixed standards and sets specific conditions for bail. Furthermore, the bail
process is subject to very exacting procedural guarantees. It follows that the "public
safety" component of s. 515(10)(b) does not violate s. 9.
The "public interest" component as a basis for pre-trial detention under s. 515(10)(b)
violates s. 11(e) of the Charter, however, because it authorizes detention in terms which
are vague and imprecise and thus authorizes a denial of bail without just cause. The term
77
"public interest", as currently defined by the courts, is incapable of framing the legal
debate in any meaningful manner or structuring discretion in any way. Nor would it be
possible to give that term a constant or settled meaning. The term gives the courts
unrestricted latitude to define any circumstances as sufficient to justify pre-trial detention
but creates no criteria for defining these circumstances. No amount of judicial
interpretation of the term "public interest" would be capable of rendering it a provision
which gives any guidance for legal debate. Such unfettered discretion violates the
doctrine of vagueness. This doctrine applies to all types of enactments and is not
restricted to provisions which define an offence or prohibit certain conduct. The
principles of fundamental justice preclude a standardless sweep in any provision which
authorizes imprisonment. A standardless sweep does not become acceptable simply
because it results from the discretion of judges and justices of the peace rather than the
discretion of law enforcement officials.
The violation of s. 11(e) is not justified under s. 1 of the Charter. Even if the term "public
interest" is not too vague to constitute a limit "prescribed by law", it cannot be justified
under the Oakes test. While the objectives of preventing crime and preventing
interference with the administration of justice by those who are on bail are of sufficient
importance to warrant overriding a constitutionally protected right, the "public interest"
component of s. 515(10)(b) does not meet the proportionality test. There is no rational
connection between the measure and the objectives. The provision is so vague that it does
not provide any means to determine which accused are most likely to commit offences or
interfere with the administration of justice while on bail. It accordingly authorizes pretrial detention in many cases which are not related to the objectives of the measure.
Further, the measure does not impair rights as little as possible. The vague and overbroad
concept of public interest permits far more pre-trial detention than is required to meet the
objectives. Finally, there is no proportionality between the effects of the measure and its
objectives. By authorizing excessive pre-trial detention, the effects of the limit far exceed
the objectives of the measure. The "public interest" component of s. 515(10)(b) is thus
unconstitutional. The offending words, specifically "in the public interest or", are
severable and should be struck down pursuant to s. 52 of the Constitution Act, 1982. The
criteria of "public interest" and "public safety" in s. 515(10)(b) are disjunctive and
striking down the specific offending provision does not defeat the unitary scheme
envisaged by Parliament. The balance of the provision can stand as a functioning whole.
In light of Pearson, s. 515(6)(d) of the Code, to the extent that it requires the accused to
show cause why detention is not justified, does not violate ss. 7, 9, 11(d) or 11(e) of the
Charter.
This conclusion is also applicable to s. 515(6)(a) of the Code. Since s. 11(d) of the
Charter is not applicable at the bail stage, s. 515(6)(a) therefore does not infringe s.
11(d). With respect to s. 7 of the Charter, the accused's case should be analysed under s.
11(e) rather than the more general provisions of s. 7. While s. 515(6)(a) requires the
accused to demonstrate that detention is not justified, thereby denying the basic
entitlement under s. 11(e) to be granted bail unless pre-trial detention is justified by the
prosecution, s. 515(6)(a) provides just cause to deny bail. First, the denial of bail occurs
only in a narrow set of circumstances. Section 515(6)(a) applies only to indictable
offences and denies bail only when the persons who have been charged with an indictable
offence while on bail for another indictable offence do not show cause why detention is
78
not justified. Second, the denial of bail is necessary to promote the proper functioning of
the bail system. The special bail rules in s. 515(6)(a) do not have any purpose extraneous
to the bail system, but rather merely establish an effective bail system in circumstances
where there are reasonable grounds to believe that the normal bail system is permitting
continuing criminal behaviour. By requiring the accused to justify bail, s. 515(6)(a) seeks
to ensure that the objective of stopping criminal behaviour will be achieved. The scope of
these special rules is thus carefully tailored to achieve a properly functioning bail system.
With respect to s. 9 of the Charter, s. 515(6)(a) does not provide for "arbitrary"
detention. Like s. 515(6)(d), s. 515(6)(a) sets out a process which is not discretionary and
which is subject to fixed standards. Section 515(6)(a) contains highly structured criteria
and sets out specific conditions for bail. In addition, the bail process is subject to very
exacting procedural guarantees and subject to review by a superior court.
The Superior Court did not err in holding that pre-trial detention is only justified where it
is established that the accused will not appear for trial or would represent a danger to
public safety if released. These two grounds are the only grounds specified in s. 515(10)
which survive Charter challenge. However, the Superior Court did err in refusing to
apply the procedure mandated by ss. 515(6)(a) and 515(6)(d), both of which are
constitutionally valid. As a result, the matter must be remitted to the Superior Court for a
new bail review under s. 520 in which ss. 515(6)(a) and 515(6)(d) are applied and s.
515(10)(b) is applied after severance of the words "in the public interest or".
Per L'Heureux-Dubé and Gonthier JJ.: The reasons of Lamer C.J. were agreed with,
except for his finding that the criterion of "public interest" in s. 515(10)(b) of the Code is
unconstitutional on grounds of vagueness. Public interest, as referred to in s. 515(10)(b),
falls within the purview of the concept of "just cause" in s. 11(e) of the Charter and is
intended to be one particularization of just cause. It is thus in terms of the entire concept
that the meaning of public interest must be understood. The evaluation and elaboration of
a "public interest" criterion must also proceed with reference to the particular context in
which it is to operate. The identification of a measure of discretion conferred by means of
a legislative provision cannot alone provide the basis for a constitutional evaluation of
that provision.
The general sense of the phrase "public interest" refers to the special set of values which
are best understood from the point of view of the aggregate good and are of relevance to
matters relating to the well-being of society. Public interest is at the heart of our legal
system and inspires all legislation as well as the administration of justice. The breadth of
the concept is a necessary aspect of a notion which accommodates a host of important
considerations which permit the law to serve a necessarily wide variety of public goals.
At the same time, the notion of public interest operates as a reference for the rules of law
which bear upon legal determinations of when the interest of the public will be specially
considered, the relationship which those interests will have to other interests which fall to
be considered, and the extent to which the public interest is to be protected by the law.
A bail application does not involve a finding of guilt as to past conduct. It is rather
concerned with governing future conduct during the interim period awaiting trial. What is
at issue are the reasons for detention. The criterion set by the Charter is that of just cause.
This implies (1) a cause or reason and (2) a proportionality between the reason and the
deprivation of liberty that makes the cause "just". Public interest, as used in s. 515(10),
must be understood in this context and considered in relation to two main elements: the
79
element of necessity, which involves a causal link between the public interest and the
detention such as to make the detention necessary and not merely convenient or desirable
and which is also an element of importance, weight or seriousness of the public interest
such as to outweigh the accused's right to personal liberty; and the element of seriousness
of the public interest, which serves to qualify the other element, namely the content of the
considerations that may be included within the public interest criterion. The
considerations to be weighed in determining the public interest are those which are
consistent with the safeguarding of the fundamental values of the rule of law and the
Charter, including the maintenance of order and security and a respect for the
fundamental individual and collective rights of others. Also important is the consideration
that the criterion of necessity is capable of encompassing circumstances which have not
been foreseen, or are unforeseeable, but which undoubtedly provide just cause for
denying bail within the meaning of s. 11(e) of the Charter. Public interest, as used in s.
515(10), thus provides for flexibility, not vagueness. Its dual requirements of public
interest and necessity, which itself predicates a public interest of a serious nature, have
meaning, give rise to legal debate and, though broad, are not vague but provide an
adequate framework and limit for the exercise of judicial discretion and a means for
controlling such exercise while at the same time allowing for the flexibility required for
an effective administration of justice and implementation of the rule of law. It must be
underlined that the bail process is subject to very exacting procedural guarantees which
both structure and guide the exercise of judicial discretion.
R. v. Sawyer [1992] 3 S.C.R. 809: -- Sentencing -- Sentence including
mandatory prohibition against possession of firearms or ammunition -Appellants' employment as stonemasons involving use of explosives and
seasonal employment as hunting guides involving use of hunting rifles -- Whether
mandatory prohibition cruel and unusual punishment
Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Cruel and unusual punishment -- Criminal law -- Sentencing -Sentence including mandatory prohibition against possession of firearms or ammunition
-- Appellants' employment as stonemasons involving use of explosives and seasonal
employment as hunting guides involving use of hunting rifles -- Whether mandatory
prohibition cruel and unusual punishment -- Criminal Code, R.S.C., 1985, c. C-46, s. 100
-- Canadian Charter of Rights and Freedoms, s. 12.
LAMER C.J. -- We are all of the view that s. 100 of the Criminal Code, R.S.C., 1985, c.
C-46, does not offend s. 12 of the Canadian Charter of Rights and Freedoms. Assuming
without deciding the availability of constitutional exemptions, we do not feel that this is a
proper case where one should be granted.
Also assuming without deciding that the appellants may be sentenced under the amended
s. 100, we find that on the facts of this case the result should not have been different.
Accordingly, the appeal is dismissed.
80
R. v. SMITH (EDWARD DEWEY) [1987] 1 S.C.R 1987: Minimum sentence for
importing narcotics notwithstanding degrees of seriousness of the offence -Whether or not minimum sentence cruel and unusual punishment
Present: Dickson C.J. and McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest
JJ.
*Chouinard J. took no part in the judgment.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Charter of Rights -- Cruel and unusual punishment -- Minimum
sentence for importing narcotics notwithstanding degrees of seriousness of the offence -Whether or not minimum sentence cruel and unusual punishment contrary to s. 12 of
Charter -- If so, whether or not justifiable under s. 1 of the Charter -- Canadian Charter
of Rights and Freedoms, ss. 1, 12 -- Narcotic Control Act,.S.C. 1970, c. N-1, s. 5(2).
Appellant pleaded guilty to importing seven and a half ounces of cocaine into Canada
contrary to s. 5(1) of the Narcotic Control Act. Before submissions on sentencing were
made the accused challenged the constitutional validity of the seven-year minimum
sentence imposed by s. 5(2) of the Narcotic Control Act as being inconsistent with ss. 7,
9 and 12 of the Charter. The trial judge found the minimum mandatory imprisonment of
seven years in s. 5(2) to be cruel and unusual punishment contrary to the Charter because
of the potential disproportionality of the mandatory sentence. He nevertheless imposed an
eight-year sentence. The Court of Appeal ruled that s. 5(2) was not inconsistent with the
Charter and found the sentence imposed to be appropriate. The constitutional question
before the Court was whether or not s. 5(2) of the Narcotic Control Act was contrary to
the Charter, and in particular, to ss. 7, 9 and 12.
Held (McIntyre J. dissenting): The appeal should be allowed.
Per Dickson C.J. and Lamer J.: The minimum sentence provided for by s. 5(2) of the
Narcotic Control Act
page 1046
breaches s. 12 of the Charter and this breach is not justified under s. 1.
The undisputed fact that the purpose of s. 5(2) of the Narcotic Control Act is
constitutionally valid is not a bar to an analysis of s. 5(2) in order to determine if the
mandatory minimum sentence will oblige the judge to impose a cruel and unusual
punishment and thereby is a prima facie violation of s. 12; if it is, it must be reconsidered
under s. 1 as to purpose and any other considerations relevant to determining whether the
impugned legislation may be salvaged.
The protection offered by s. 12 of the Charter governs the quality of the punishment and
is concerned with the effect that the punishment may have on the person on whom it is
imposed. The test for review under s. 12 of the Charter is one of gross disproportionality
because s. 12 is aimed at punishments more than merely excessive. The court in assessing
whether a sentence is grossly disproportionate must consider the gravity of the offence,
the personal characteristics of the offender, and the particular circumstances of the case to
determine what range of sentences would have been appropriate to punish, rehabilitate,
deter or protect society from this particular offender. The court must also measure the
effect of the sentence, which is not limited to its quantum or duration but includes also its
81
nature and the conditions under which it is applied. The determination of whether the
punishment is necessary to achieve a valid penal purpose, whether it is founded on
recognized sentencing principles and whether valid alternative punishments exist, are all
guidelines, not determinative of themselves, to help assess whether a sentence is grossly
disproportionate. Arbitrariness is a minimal factor in determining whether a punishment
or treatment is cruel and unusual.
The minimum term of imprisonment provided for by s. 5(2) of the Narcotic Control Act
fails the proportionality test and therefore prima facie infringes the guarantees established
by s. 12 of the Charter. A minimum mandatory term of imprisonment is not in and of
itself cruel and unusual. The Legislature may provide for a compulsory term of
imprisonment upon conviction for certain offences without infringing the rights protected
by s. 12 of the Charter. A guilty verdict under s. 5(1), however, will inevitably lead to the
imposing of a totally disproportionate term of imprisonment for s. 5(1) covers many
substances of varying degrees of danger, totally disregards the quantity imported and
treats as irrelevant the reason for importing and the existence of any
page 1047
previous convictions. The effect of the minimum is to insert the certainty that, in some
cases, a violation will occur on conviction. It is this certainty, and not just the potential,
which causes s. 5(2) to violate prima facie s. 12. The minimum must, subject to s. 1, be
declared of no force or effect.
The section cannot be salvaged by relying on the discretion of the prosecution not to
charge for importation in those cases where conviction, in the opinion of the prosecution,
would result in a violation of the Char- ter. To do so would be to disregard totally s. 52
of the Constitution Act, 1982.
The section, too, cannot be salvaged under s. 1 of the Charter. The first criterion under s.
1 was met: the fight against the importing and trafficking of hard drugs is an objective of
sufficient importance to override a constitutionally protected right. The second criterion-proportionality of the means chosen--was not met. The minimum will surely deter people
from importing narcotics. However, it is not necessary to sentence the small offenders to
seven years in prison in order to deter the serious offender.
Per Wilson J.: Section 12 of the Charter, although primarily concerned with the nature or
type of treatment or punishment, is not confined to punishments which are in their nature
cruel and extends to those that are "grossly disproportionate". The mandatory imposition
of the minimum seven-year sentence provided in s. 5(2) of the Narcotic Control Act on a
youthful offender with no previous record would contravene s. 12 of the Charter in that it
would be a cruel and unusual punishment "so excessive as to outrage standards of
decency". The mandatory feature of s. 5(2) is not saved by s. 1 because the means
employed to achieve the legitimate government objective of controlling the importation
of drugs impairs the right protected by s. 12 of the Charter to a greater degree than
necessary.
The arbitrary nature of the mandatory minimum sentence is fundamental to its
designation as cruel and unusual under s. 12 of the Charter. The seven-year minimum
sentence is not per se cruel and unusual but it becomes so because it must be imposed
regardless of the circumstances of the offence or the offender. Its arbitrary imposition
82
will inevitably result in some cases in a legislatively ordained grossly disproportionate
sentence.
page 1048
Some punishments may be cruel and unusual within the meaning of s. 12 without being
arbitrarily imposed while others may be arbitrary within the meaning of s. 9 without also
being cruel and unusual. Sections 9 and 12 are not mutually exclusive.
Per Le Dain J.: Imprisonment for seven years for the unauthorized importation or
exportation of a small quantity of cannabis for personal use would be cruel and unusual
punishment within the meaning of s. 12 of the Charter and for this reason the words "but
not less than seven years" in s. 5(2) of the Narcotic Control Act must be held to be of no
force or effect. Notwithstanding his conclusion to the contrary, the test for cruel and
unusual punishment under s. 12 of the Charter should generally be that of McIntyre J.,
including his approach to the application of disproportionality and arbitrariness.
Punishment found to be cruel and unusual could not be justified under s. 1 of the Charter.
The mandatory minimum sentence of seven years' imprisonment cannot be held to be
valid on its face because of the general seriousness of the offence created by s. 5(1),
subject to the power of a court to find that it is constitutionally inapplicable in a particular
case. Such an approach must be rejected because of the uncertainty it would create and
the prejudicial effects which the assumed validity or application of the mandatory
minimum sentence provision might have in particular cases. In coming to this conclusion
no assumption is made as to whether the mandatory minimum sentence provision in s.
5(2) might be restructured in such a manner, with distinctions as to nature of narcotic,
quantities, purpose and possibly prior conviction, as to survive further challenge and still
be a feasible and workable legislative alternative with respect to the suppression of a
complex and multi-faceted phenomenon.
With respect to the question of interest or standing, an accused should be recognized as
having standing to challenge the constitutional validity of a mandatory minimum
sentence, whether or not, as applied to his case, it would result in cruel and unusual
punishment. In such a case the accused has an interest in having the sentence considered
without regard to a constitutionally invalid mandatory minimum sentence provision.
9*] Per La Forest J.: While in substantial agreement with Lamer J., nothing was said
about the role of arbitrariness in determining whether there has been cruel and unusual
treatment or punishment.
page 1049
Per McIntyre J. (dissenting): Section 12 of the Charter is a special constitutional
provision which is not concerned with general principles of sentencing or with related
social problems. Its function is to provide the constitutional outer limit beyond which
Parliament, or those acting under parliamentary authority, may not go in imposing
punishment or treatment respecting crime or penal detention. Parliament retains, while
acting within the limits so prescribed, a full discretion to enact laws and regulations
concerning sentencing and penal detention. The courts, on the other hand, in the actual
sentencing process have a duty to prevent an incursion into the field of cruel and unusual
treatment or punishment and, where there has been no such incursion, to impose
appropriate sentences within the permissible limits established by Parliament. In so
83
doing, the courts will apply the general principles of sentencing accepted in the courts in
an effort to make the punishment fit the crime and the individual criminal.
The Charter right to be free from cruel and unusual punishment or treatment is absolute.
The concept is a "compendious expression of a norm" drawn from evolving standards of
decency and has been judicially broadened to encompass not only the quality or nature of
punishment but also extent or duration under the heading of proportionality.
(Proportionality is to be determined on a general rather than an individual basis.) The
inclusion of the word "treatment" in the Charter has advanced this broadening process
for the nature and quality of treatment or conditions under which a sentence is served are
now subject to the proscription.
A punishment will be cruel and unusual and violate s. 12 of the Charter if it has any one
or more of the following characteristics:
(1) The punishment is of such character or duration as to outrage the public conscience or
be degrading to human dignity;
(2) The punishment goes beyond what is necessary for the achievement of a valid social
aim, having regard to the legitimate purposes of punishment and the adequacy of possible
alternatives; or
(3) The punishment is arbitrarily imposed in the sense that it is not applied on a rational
basis in accordance with ascertained or ascertainable standards.
Appellant would not be able to show that the minimum punishment in s. 5(2) of the
Narcotic Control Act would outrage the public conscience or be degrading to
page 1050
human dignity, especially when it is considered in the light of the other sentences
currently provided for in Canadian law, the length of the sentence actually to be served,
and the seriousness of the offence. This sentence did not go beyond what is necessary to
achieve the valid social aim of deterring the traffic in drugs; Parliament considered the
matter carefully and extensively and there was a want of evidence before the Court as to
adequate alternatives capable of realizing this valid social aim. Finally, this punishment
was imposed in accordance with standards or principles rationally connected to the
purposes of the legislation.
Parliament, in legislating a minimum sentence, merely concluded that the gravity of the
offence alone warranted that sentence. The legislation does not restrain the discretion of
the trial judge to weigh and consider the circumstances of the offence in determining the
length of sentence and it cannot be considered arbitrary and therefore cruel and unusual.
As far as arbitrariness may arise in the actual sentencing process, judicial error will not
affect constitutionality and would, ordinarily, be correctable on appeal.
Appellant could not succeed under s. 7 of the Charter. Section 7 sets out broad and
general rights which often extend over the same ground as other rights set out in the
Charter. These rights cannot be read so broadly as to render other rights nugatory, and
for this reason, s. 7 cannot raise any rights or issues not already considered under s. 12.
R. v. Goltz [1991] 3 S.C.R. 485: -- Cruel and unusual punishment -- Minimum
sentence -- Provincial motor vehicle legislation providing for mandatory minimum
84
sentence of seven days' imprisonment together with fine for first conviction of
driving while prohibited
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Charter of Rights -- Cruel and unusual punishment -- Minimum
sentence -- Provincial motor vehicle legislation providing for mandatory minimum
sentence of seven days' imprisonment together with fine for first conviction of driving
while prohibited -- Whether mandatory minimum sentence infringes s. 12 of Charter -- If
so, whether infringement justified under s. 1 of Charter -- Motor Vehicle Act, R.S.B.C.
1979, c. 288, s. 88(1)(c) -- Canadian Charter of Rights and Freedoms, ss. 1, 12.
Respondent was found guilty of driving while prohibited under s. 86(1)(a)(ii) of the B.C.
Motor Vehicle Act, contrary to s. 88(1)(a). Section 88(1)(c) prescribes a minimum penalty
of seven days' imprisonment and a $300 fine for a first conviction of driving while
prohibited under s. 84, 85, 86 or 214. The provincial court found that the provision did
not infringe the guarantee against cruel and unusual punishment in s. 12 of the Canadian
Charter of Rights and Freedoms and imposed the minimum sentence. On appeal, the
county court found that the sentencing provision violated s. 12 of the Charter and could
not be justified under s. 1. That determination was upheld by the Court of Appeal. The
constitutional questions before this Court queried whether s. 88(1)(c) of the Motor
Vehicle Act infringes s. 12 of the Charter and, if so, whether the infringement is justified
under s. 1.
Held (Lamer C.J. and McLachlin and Stevenson JJ. dissenting): The appeal should be
allowed. The mandatory minimum sentence imposed pursuant to s. 88(1)(c) of the Motor
Vehicle Act for a first conviction of driving while prohibited does not infringe s. 12 of the
Charter when the prohibition from driving is made pursuant to s. 86(1)(a)(ii) of the Act.
Other prohibitions from driving, violation of which also triggers the mandatory minimum
sentence in s. 88(1)(c), are not at issue in this appeal.
Per La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: The general
test for determining whether a punishment is cruel and unusual within the meaning of s.
12 is one of gross disproportionality, which must consider the gravity of the offence, the
personal characteristics of the offender and the particular circumstances of the case.
Other factors which may legitimately inform an assessment are whether the punishment
is necessary to achieve a valid penal purpose, whether it is founded on recognized
sentencing principles, whether there exist valid alternatives to the punishment imposed,
and to some extent whether a comparison with punishments imposed for other crimes in
the same jurisdiction reveals great disproportion. The test is not one which is quick to
invalidate sentences crafted by legislators. It will only be on rare occasions that a court
will find a sentence so grossly disproportionate that it violates s. 12 of the Charter.
There are two aspects to the analysis of invalidity under s. 12. One aspect involves the
assessment of the challenged penalty or sanction from the perspective of the person
actually subjected to it, balancing the gravity of the offence in itself with the particular
circumstances of the offence and the personal characteristics of the offender. If it is
concluded that the challenged provision provides for and would actually impose on the
offender a sanction so excessive or grossly disproportionate as to outrage decency in
those real and particular circumstances, then it will amount to a prima facie violation of s.
12 and will be examined for justifiability under s. 1 of the Charter. If the particular facts
85
of the case do not warrant a finding of gross disproportionality, there may remain another
aspect to be examined, namely a Charter challenge or constitutional question as to the
validity of a statutory provision on grounds of gross disproportionality as evidenced in
reasonable hypothetical circumstances.
The constitutional questions in this case are restricted in focus to the particular form of
prohibition to which respondent was subjected under s. 86(1)(a)(ii) of the Act. In relation
to the particular offence and respondent's personal situation, s. 88(1)(c), applied in a
severed fashion in respect of s. 88(1)(a) and s. 86(1)(a)(ii), does not infringe s. 12 of the
Charter. Commission of the offence specified by ss. 86(1)(a)(ii) and 88(1) is grave. The
gravity of the offence must be assessed in light of the legislative purpose and the
underlying driving offences giving rise to the prohibition. An order of prohibition made
under s. 86(1)(a)(ii) is aimed in large measure at safeguarding the health and lives of
citizens using the highways of a province, as reflected in the requirements that the
prohibited individual must have built up an "unsatisfactory driving record" and that the
prohibition be "in the public interest". Only bad drivers with an unsatisfactory driving
record are prohibited under s. 86(1)(a)(ii) because it is especially those drivers who are
dangerous to innocent citizens using the roads in a responsible manner. The Act's
emphasis on the promotion of responsible driving and penalizing of irresponsible driving
is further reflected in the requirement in the offence that a person knowingly drive while
prohibited. As well, because the offence is difficult to detect, there is a great temptation
on the part of many prohibited drivers to commit it, and a legislature may therefore
rationally conclude that for the purpose of deterrence a serious penalty must attach to it.
The gravity of the offence of driving while prohibited is made more obvious upon review
of the Act's procedural safeguards, which ensure that only bad drivers will be prohibited
from driving under s. 88(1)(a) in application to s. 86(1)(a)(ii).
Having been prohibited from driving, respondent knowingly and contemptuously violated
the prohibition. There was no indication that he was urgently required to drive his car on
the day in question, nor was there any submission as to a relevant personal characteristic
of his that would justify a mitigated or lesser sentence than the mandatory minimum. The
effects of the sentence cannot reasonably be said to outrage standards of decency or be
seen as grossly disproportionate to the wrongdoing. The effect of the seven-day sentence
is lighter than might first appear, since the sentence can be fashioned to be fully served
on a few weekends, as in this case.
It is unlikely that the general application of the offence would result in the imposition of a
grossly disproportionate sentence amounting to cruel and unusual punishment.
Respondent has not discharged the onus of demonstrating a reasonable hypothetical
circumstance in which enforcement of the statute would violate s. 12. The regulatory
system of penalty points and internal reviews guarantees that it will be exceptionally rare
that a so-called "small offender" will ever be subjected to the minimum penalty in s.
88(1)(c). By divorcing the offence of driving while prohibited from the various
infractions which led up to the prohibition, the Court of Appeal accorded insufficient
weight to the gravity of the offence and to the relatively high threshold for its
commission.
Per Lamer C.J. and McLachlin and Stevenson JJ. (dissenting): The mandatory minimum
sentence of seven days' imprisonment plus a fine would in some cases be clearly
disproportionate and shocking to the Canadian conscience, and hence violate the
86
guarantee against cruel and unusual punishment in s. 12 of the Charter. The provision
cannot be saved under s. 1 of the Charter because it is overbroad: no obvious or probable
need for a deterrent which has such an indiscriminate reach has been demonstrated.
Rather than alleviating the particular offences from the purview of s. 88(1)(c) on a caseby-case basis, the Court should strike out the mandatory minimum sentence. An analysis
which proceeds by severing potentially offending parts of s. 88 fails to answer the
question posed on this appeal.
Furthermore, severing the reference in s. 88 to prohibitions other than selected cases
under s. 86 of the Act has an effect analogous to reading down the statute, or applying the
doctrine of constitutional exemption. To address s. 88 as though it referred only to
prohibitions under s. 86 is to address a different scheme than that enacted by the
legislature and leaves the constitutional status of the scheme uncertain, which runs
counter to the fundamental principle that laws whose violation can result in imprisonment
should be clear, certain and ascertainable.
R. v. Storrey [1990] 1 S.C.R. 241: Arbitrary detention or imprisonment -Accused arrested for aggravated assault and detained 18 hours before charge
laid -- Accused kept in custody for the purposes of conducting an identification
parade -- Whether accused's arrest lawful -- Whether accused arbitrarily detained
-Present: Lamer, Wilson, La Forest, Sopinka, Gonthier, Cory and McLachlin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Constitutional law -- Charter of Rights -- Arbitrary detention or imprisonment -- Accused
arrested for aggravated assault and detained 18 hours before charge laid -- Accused kept
in custody for the purposes of conducting an identification parade -- Whether accused's
arrest lawful -- Whether accused arbitrarily detained -- Canadian Charter of Rights and
Freedoms, s. 9 --Criminal Code, R.S.C. 1970, c. C-34, ss. 450(1), 454(1).
Three Americans returning to Michigan were cut off by another vehicle as they
approached the border near Windsor and were forced to stop. The driver and passenger of
this vehicle got out and came over to the Americans' car. The driver punched one of the
Americans while his passenger slashed all three of them with a knife. The victims gave to
the police a general description of the assailants and of their vehicle -- a blue Ford,
possibly a Thunderbird manufactured during the years 1973 to 1975. Two of the victims
were later brought to the police station and, after reviewing some 800 photographs,
selected 4 or 5 pictures of men who "looked like" the assailant with the knife.
Significantly they both chose the photograph of one Darryl Cameron. Following an
investigation, the police eliminated Cameron as a suspect. But the investigating officer's
searches revealed that the appellant had been stopped on numerous occasions driving a
1973 blue Thunderbird, that he closely resembled Cameron and that he had a criminal
record which included crimes of violence. A police bulletin was issued for his arrest on
the charge of aggravated assault. The appellant was found six days later and arrested at
7:25 p.m. He was charged the next day at 1:44 p.m. The officer stated that the 18-hour
delay in laying the formal charge was occasioned by the need to bring the victims to
87
Windsor in order to conduct the identification parade which was the only method of
identification available. At the line-up, the victims identified the appellant as their
assailant. The police also found the ownership for a 1973 blue Thunderbird in the
appellant's residence.
At trial, the judge found that the investigating officer had reasonable and probable
grounds for the arrest but that the arrest was unlawful because it did not meet the criteria
of s. 450(2) of the Criminal Code. He concluded that the arrest was arbitrary and in
violation of s. 9 of the Canadian Charter of Rights and Freedoms and ordered a stay of
proceedings. The Court of Appeal allowed the Crown's appeal and ordered a new trial.
This appeal is to determine whether the appellant's arrest and detention violated s. 9 of
the Charter.
Held: The appeal should be dismissed.
The appellant's arrest was lawful and proper. Section 450(1) of the Code is applicable to
this case and not s. 450(2). Section 450(1) requires that an arresting officer must
subjectively have reasonable and probable grounds on which to base the arrest. Those
grounds must, in addition, be justifiable from an objective point of view. That is to say, a
reasonable person placed in the position of the officer must be able to conclude that there
were indeed reasonable and probable grounds for the arrest. On the other hand, the police
need not demonstrate anything more than reasonable and probable grounds. Specifically
they are not required to establish a prima facie case for conviction before making the
arrest. In this case, the trial judge's finding that the investigating officer had reasonable
and probable grounds to make the arrest was amply supported by the evidence. The
reasonable grounds could be justified subjectively as well as objectively.
An arrest which is lawfully made does not become unlawful simply because the police
intend to continue their investigation after the arrest. Here, the police had reasonable and
probable grounds to arrest the appellant and there was nothing improper about their
intention to continue the investigation. Neither that intention nor the continued
investigation made the arrest unlawful.
The appellant's detention for 18 hours before the charge was laid, primarily for the
purpose of furthering the police investigation, did not constitute an arbitrary detention.
The identification parade was the fairest means as well as the sole practical means of
identification. Since the appellant was arrested in the evening, it is unlikely that the
victims, who lived outside the jurisdiction, could be found and brought to the line-up
before the next morning. The appellant was brought before a justice of the peace and
charged immediately after the line-up. In these circumstances, the delay was not
unreasonable and offended neither s. 454(1) of the Code nor s. 9 of the Charter.
Steele v. Mountain Institution [1990] 2 S.C.R. 1385: Indeterminate sentence -Necessary psychiatric treatment not available -- Parole repeatedly denied -Whether or not Parole Board erred in refusing to release prisoner -- Whether or
not flaw in operation of the parole review process -- Whether or not flaw
amounting to cruel and unusual punishment
Present: Dickson C.J. and Lamer C.J and La Forest, L'Heureux-Dubé, Gonthier, Cory and
McLachlin JJ.
88
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Constitutional law -- Charter of Rights -- Cruel and unusual punishment -- Indeterminate
sentence -- Necessary psychiatric treatment not available -- Parole repeatedly denied -Whether or not Parole Board erred in refusing to release prisoner -- Whether or not flaw
in operation of the parole review process -- Whether or not flaw amounting to cruel and
unusual punishment -- Canadian Charter of Rights and Freedoms, ss. 12, 24(1) --Parole
Act, R.S.C., 1985, c. P-2, s. 16(1)(a) -- Criminal Code, R.S.C., 1985, c. C-46, s. 761(2).
Respondent was 55 years old and had been imprisoned almost 37 years. He had pleaded
guilty to a charge of attempted rape when he was 18 and was shortly after declared to be
a "criminal sexual psychopath" as defined in the Criminal Code. The judge, in imposing
an indeterminate sentence, took into account incidents that had occurred on the same day
when respondent had been drinking heavily. He emphasized that respondent should
receive proper treatment for his condition.
No penitentiary facilities were available to treat respondent's condition and yet he
initially responded well to his incarceration. When various attempts at supervised parole
were tried, they ended because of some infraction usually stemming from substance
abuse or breach of discipline. Through the years, respondent found himself in an ever
worsening "Catch-22" situation in that he had little hope for release unless he could
receive psychiatric treatment and yet the institutions to which he was condemned to serve
his sentence did not have the facilities to provide this treatment. When the facilities for
treatment finally became available after some 20 years' imprisonment, admission was
twice denied because respondent's condition had deteriorated to the point where he would
not benefit from the program. The great majority of the psychiatric reports throughout
respondent's incarceration recommended some form of release; those that did not noted
that respondent had become "institutionalized" and that he had not been treated for his
disorder. The Parole Board repeatedly denied parole because of his risk to society.
Respondent filed a petition seeking an order in the nature of habeas corpus with certiorari
and relief pursuant to s. 24(1) of the Charter. The Court concluded that respondent's
continuing detention was in violation of s. 12 and ordered his unconditional release. The
Court of Appeal confirmed respondent's release but varied the unconditional release to
provide that the Crown could apply to the British Columbia Supreme Court for an order
that respondent be returned to custody should his conduct after release demonstrate a
danger of serious harm justifying a resumption of incarceration under the indeterminate
sentence. (The Parole Board and the Correctional Service of Canada had no jurisdiction
to impose terms on respondent's release because he had brought his application outside of
the parole review process.)
At issue here was whether the Parole Board erred in refusing to release respondent on
parole with the result that his continuing imprisonment constituted cruel and unusual
punishment. Respondent conceded that the Criminal Code's dangerous offender
sentencing provisions were not cruel and unusual punishment contrary to s. 12 of the
Charter.
Held: The appeal should be dismissed.
Respondent's lengthy incarceration was cruel and usual punishment contrary to s. 12 of
the Charter. The infringement was caused by errors committed by the National Parole
Board and not by any structural flaw in the dangerous offender provisions.
89
The Parole Act required that an indeterminate sentence of a "criminal sexual psychopath"
be reviewed by the National Parole Board once every three years. The criteria included
consideration of (i) whether the inmate had derived the maximum benefit from
imprisonment and (ii) whether the inmate's reform and rehabilitation would be furthered
by parole. A third condition, that the inmate's release would not constitute an undue risk
to society, was added in 1968. These criteria must be carefully applied in order to fit the
indeterminate sentence to the prisoner's circumstances and so ensure that it does not
violate s. 12 of the Charter. If it is clear on the face of the record that the Board has
misapplied or disregarded these criteria over a period of years with the result that an
offender remains incarcerated far beyond the time when he or she should have been
properly paroled, then the Board's decision to keep the offender incarcerated may well
violate s. 12.
Respondent's imprisonment had long ago reached the point at which he had derived "the
maximum benefit from imprisonment". His incarceration was longer than that served by
the vast majority of the most cruel and callous murderers and was of doubtful benefit
given the unavailability of psychiatric treatment. Specialists expressly stated throughout
the course of respondent's incarceration that he had received the maximum benefit from
imprisonment and that continued detention would cause him to deteriorate. The second
criterion had also long been satisfied. Most reports advised respondent's rehabilitation
could only be facilitated by his gradual supervised release into the community.
Respondent's behaviour during the last 20 years did not indicate that he remained an
undue risk to society. His parole violations resulted from a problem dealing with
substance abuse and rigid discipline and not from a tendency to repeatedly engage in
violent or sexually deviant behaviour. Breaches of parole conditions should be seriously
considered, but as well there should be taken into account all the circumstances and
explanations relating to the breach.
The length of time served may be one of the circumstances considered in applying the
statutory criteria to an individual's circumstances. It may not of itself justify parole but it
may well serve as an indication that the inmate is no longer dangerous. As well, a lengthy
incarceration with the concomitant institutionalizing effect upon the inmate may serve to
explain and perhaps to some extent excuse certain breaches of discipline.
The National Parole Board erred in its application of the criteria set out in s. 16(1)(a) of
the Parole Act. Its decision to deny parole appears to have been based upon relatively
minor and apparently explicable breaches of discipline rather than focussing upon the
crucial issue of whether granting him parole would constitute an undue risk to society.
The parole review process accordingly failed to ensure that respondent's sentence was
tailored to fit his circumstances. The inordinate length of his incarceration has long since
become grossly disproportionate to the circumstances of this case.
The test for determining whether a sentence is disproportionately long must be stringent
and demanding because of the need to avoid trivializing the Charter. Further, there
already exists a mechanism whereby appellate courts can review sentences to ensure that
they are appropriate.
Since any error that may be committed occurs in the parole review process itself, an
application challenging the decision should be made by means of judicial review rather
than by means of an application for habeas corpus. The release of a long term inmate
should be supervised by those who are experts in this field. However, in this case it
90
would be unfair to require respondent to commence new proceedings by way of judicial
review given his age and the length of his incarceration.
USA v. Cotroni [1989] 1 S.C.R. 1469: Right of Canadian citizen to remain in
Canada -- Extradition -- Conspiracy to import drugs into U.S.A. from Canada -Actions of accused taking place in Canada -- Offence existing under both U.S.
law and Canadian law -- Whether or not extradition of Canadian citizen under
these circumstances an infringement of citizen's right to remain in Canada
Constitutional law -- Charter of Rights -- Right of Canadian citizen to remain in Canada - Extradition -- Conspiracy to import drugs into U.S.A. from Canada -- Actions of
accused taking place in Canada -- Offence existing under both U.S. law and Canadian
law -- Whether or not extradition of Canadian citizen under these circumstances an
infringement of citizen's right to remain in Canada -- If so, whether or not extradition
justifiable under s. 1 of the Charter -- Canadian Charter of Rights and Freedoms, ss. 1,
6(1).
Extradition -- Canadian citizens involved in conspiracy to import drugs into U.S.A. from
Canada -- Actions of accused taking place in Canada -- Offence existing under both U.S.
law and Canadian law -- Whether or not extradition of Canadian citizen under these
circumstances an infringement of citizen's right to remain in Canada -- If so, whether or
not extradition justifiable under s. 1 of the Charter.
Appellants are Canadian citizens who were arrested in Canada for separate offences
pursuant to warrants issued under the Extradition Act and the Extradition Treaty between
Canada and the United States. Both were alleged to have participated in a conspiracy to
import and distribute heroin in the United States; El Zein was also alleged to have
imported heroin into the United States. The appellants' actions which related to the
alleged offences took place when they were in Canada and appellants could have been
tried under Canadian law. The United States sought extradition, committal for extradition
was ordered in each case and applications for habeas corpus with certiorari in aid were
dismissed. The Quebec Court of Appeal quashed the committals. The constitutional
questions before this Court queried (1) whether the surrender of a Canadian citizen to a
foreign state constituted an infringement of the s. 6(1) Charter right to remain in Canada
and, (2) if so, whether surrender here constituted a reasonable limit on that right under s.
1.
Held (Wilson and Sopinka JJ. dissenting): The appeals should be allowed; both
constitutional questions should be answered in the affirmative.
Per Dickson C.J. and La Forest, L'Heureux-Dubé, Gonthier and Cory JJ.: The extradition
of a Canadian citizen prima facie infringes the citizen's right to remain in Canada as
guaranteed by s. 6(1) of the Charter -- a right to be interfered with only if justified as
being required to meet a reasonable state purpose. This Charter right would have been
drafted differently if it were to include only protection from expulsion and banishment or
exile. Its central thrust, nevertheless, is against exile and banishment for the purpose of
excluding membership in the national community. Extradition is not directed to that
purpose and lies at the outer edges of the core values being protected by the provision.
91
The objectives underlying extradition are pressing and substantial and are sufficiently
important to make it a reasonable limit -- within the meaning of s. 1 and assuming the
other requirements of s. 1 are met -- to the Charter right set out in s. 6(1). The
investigation, prosecution and suppression of crime for the protection of the citizen and
the maintenance of peace and public order is an important goal of all organized societies.
The pursuit of that goal cannot realistically be confined within national boundaries. The
objectives of extradition go beyond that of suppressing crime, simpliciter, and include
bringing fugitives to justice for the proper determination of their guilt or innocence in a
proper hearing.
An extradition may be rationally connected to the objectives underlying extradition
notwithstanding the fact that Canada has sufficient interest to prosecute for the same acts.
It is often better that a crime be prosecuted where its harmful impact is felt and where the
witnesses and the persons most interested in bringing the criminal to justice reside.
The Oakes test should not be applied in an overly rigid and mechanistic fashion: the
language of the Charter invites a measure of flexibility. While the rights guaranteed by
the Charter must be given priority in the equation, the underlying values must be
sensitively weighed in a particular context against other values of a free and democratic
society sought to be achieved by the legislature.
Extradition impairs the right under s. 6(1) as little as is reasonably possible. Extradition
practices have been tailored as much as possible for the protection of the liberty of the
individual and accord the same kinds of rights (though in a necessarily attenuated form)
as are afforded to an accused under ss. 7 and 11 of the Charter. The important and
substantial objectives which underlie extradition and which are essential to the
maintenance of a free and democratic society warrant this somewhat peripheral Charter
infringement.
In the case at bar, respondents were physically present in Canada when they allegedly
participated in the transactions in respect of which they stand charged. These alleged
transactions, however, were of a transnational nature. While continued physical presence
in Canada may be relevant under ss. 1 and 6 of the Charter, the locus of wrongdoing is
not. The right to remain in Canada, furthermore, is not more affected by the alleged
crime's being committed outside Canada as opposed to inside Canada.
A general exception for a Canadian citizen who could be charged in Canada would
unduly interfere with the objectives of extradition. Considerations relating to effective
prosecution, the availability of evidence, initiative for investigation and to the impossibly
difficult task of determining the country best suited to try the case by judicial
examination, go beyond mere administrative convenience and touch the very purpose
underlying extradition. In particular, the interests of society in bringing a fugitive to
justice at a trial where his or her guilt or innocence can be properly determined would be
seriously impaired. Such an approach, moreover, would weaken the system generally,
and so the objectives it serves, by sapping the trust and good faith that must exist between
nations and their officials and law enforcement agencies at many levels.
Justification for the limitation of the right under s. 1 is not vitiated by the fact that the
question of whether or not extradition will take place is left to the discretion of the
Attorney General of Canada or of a province. The principal discretion involved is
whether or not to prosecute and the reasons justifying that discretion underlie the
discretion of deciding whether or not a Canadian should be prosecuted in Canada or
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abroad. In exercising this discretion, a citizen's s. 6(1) rights must be given due weight. In
practice, the decision whether to prosecute or not to prosecute in this country and allow
the authorities in another country to seek extradition, is made following consultations
between the appropriate authorities in the two countries when various factors, including
nationality, are considered in weighing the interests of the two countries in the
prosecution.
The executive discretion to surrender was of little relevance here.
Per Wilson J. (dissenting): Section 6(1) of the Charter was designed to protect the right of
a Canadian citizen to choose of his own volition to enter, remain in or leave Canada. The
language of s. 6(1) is clear and unambiguous. Had it been the intention that s. 6(1)
address only a citizen's right not to be exiled or banished, the section would have been
framed in more specific terms.
The locus of the wrongdoing is very relevant in any attempt to justify extradition as a
reasonable limit on a Canadian citizen's right to remain in Canada. It is often the key
factor connecting the accused to the requesting state. The right of a citizen to remain in
Canada need not be violated when the crime has been committed by a Canadian in
Canada and is punishable by Canadian law. He can be brought to justice right here. It is
otherwise when the crime has been committed in the requesting state. The argument for
extradition being a reasonable limit under s. 1 is clearly much stronger in the latter case.
More persuasive reasons than convenience of prosecution are required to justify the
violation of a right expressly guaranteed to Canadian citizens in the Charter. This Charter
right is not a trivial one nor can its breach be viewed as peripheral.
The executive branch of government in exercising its discretionary powers as to whether
or not to extradite or whether or not to prosecute is bound by the Charter. It has no
discretion as to whether or not it will respect guaranteed rights. Its discretion is limited by
the Charter and not vice versa.
The control of trans-border crime is of sufficiently pressing and substantial concern to
warrant a legislative limit on the citizen's right to remain in Canada. The proportionality
test, however, was not met. Extradition, while it may be rationally connected in general to
the objective of controlling trans-border crime, does not impair the s. 6(1) right "as little
as possible" on the particular facts of these appeals. The objective could have been
achieved by prosecuting respondents in Canada and so have avoided a contravention of s.
6(1) of the Charter entirely. A flexible approach might be taken with respect to
proportionality in some cases but careful scrutiny of a legislative scheme should not be
abandoned where that scheme directly abridges a guaranteed right, particularly in relation
to an aspect of the criminal law.
The comity of nations fostered by extradition would not be adversely affected if
extradition were to be denied in cases such as the present.
Per Sopinka J. (dissenting): For the reasons given by Wilson J., extradition of a citizen
who can be tried in Canada is not a reasonable limit and extradition in this case would
constitute a breach of s. 6(1) which has not been justified under s. 1 of the Charter. The
implications arising from the majority decision, however, need be expressed.
The infringement of s. 6(1) of the Charter resulting from extradition is not peripheral:
countries to which a Canadian can be extradited do not recognize the presumption of
innocence or the right to remain silent; do not permit bail; have no independent bar; and
still retain the death penalty for a number of offences. Any enforceable rules of law
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designed to protect the citizen make no distinction as to the nature of the requesting state.
Further, little protection can be afforded by matters considered at the time of treaty
negotiations because many of the treaties are old and the political and legal nature of
many states has drastically changed in the interim.
The practice that the decision to extradite is made after consultations between the
authorities of Canada and the requesting state is only a practice and is not reviewable
unless a discretion was exercised for an improper or arbitrary motive. It is neither "a limit
prescribed by law" nor crafted to lessen the impact of a breach of s. 6(1) and so cannot
justify that breach.
A decision to prosecute in Canada will not protect the citizen against extradition unless
the treaty confers a discretion in Canada not to extradite its own citizens. This discretion
is a political matter. Accordingly, whether a decision to prosecute will avail will depend
on the general policy of the Canadian government. This policy is not expressed in any
instrument having the force of law.
A law cannot be salvaged by relying on the discretion of the prosecutor not to apply the
law where it would result in a violation of the Charter. Such discretion is not
circumscribed by guidelines enforceable at law.
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