re section

Re B.C. Motor Vehicle Act

Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbian Motor Vehicles Act. The decision established one of the first principles of fundamental justice in the Canadian Charter of Rights and Freedoms, beyond mere natural justice, by requiring a mens rea component for all offences with penal consequences. The decision also proved important and controversial for establishing fundamental justice as more than a procedural right similar to due process, but also protects substantive rights even though such rights were counter to the intent of the initial drafters of the Charter.


Section 94(2) of the Motor Vehicle Act of British Columbia created an Absolute Liability offence of driving while with a suspended licence. To obtain a conviction, the Crown only needed to establish proof of driving regardless of whether the driver was aware of the suspension or not. A successful conviction carried a prison term of a minimum of seven days.

The British Columbia Court of Appeal held that the Act violated a principle of fundamental justice under section 7 of the Charter.

Reasons of the Court

Justice Lamer, writing for a unanimous court, held that any absolute liability offence which deprives the right to life, liberty or security of the person violates the principles of fundamental justice. Any deprivation of life, liberty, or security of person from an absolute liability offence offends the Charter. It is only through reasons of public interest can such offences be saved through section 1 of the Charter.

The Crown failed to show that the public interest of ridding the roads of bad drivers could be proportional to the limiting of people's rights by imprisoning them.

In surveying means of interpreting the constitution, Lamer dismissed the practice of relying on the testimony of the original drafters of the Constitution as interpretive aids, effectively rejecting the use of an original intent approach to Constitutional interpretation. Reference was made to the living tree doctrine in this regard. The Court also rejected the more restricted definition of fundamental justice under the Canadian Bill of Rights, as described in Duke v. The Queen (1972).

The Court noted that the alternative view of fundamental justice as natural justice would have been an easier requirement for the government to satisfy. This would limit the rights to life, liberty, and security of person, or, as the Supreme Court put it, place these rights "in a sorely emaciated state." Liberty, for example, would be seen as not as comprehensive a right as section 9, which guards against arbitrary arrest and detention. Security of person would also be less comprehensive than section 8 rights against unreasonable search and seizure. Such an interpretation, the Court decided, would be inconsistent with the normal reading of the Charter, demonstrated in Law Society of Upper Canada v. Skapinker (1984) and Hunter v. Southam Inc., which was meant to be generous. For this reason, Lamer added that sections 8-14 should be seen as provided examples of principles of fundamental justice.

Another reason for discarding the Duke interpretation of fundamental justice was the difference in wording between the Bill of Rights and the Charter. In guaranteeing fundamental justice, the Bill of Rights references a "fair hearing." Section 7 does not mention a fair hearing and the only context for fundamental justice is the "much more fundamental rights" of life, liberty and security of person.


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