The coming into force of the Canadian Charter of Rights and Freedoms on April 17th, 1982 and its equality section (s15) on April 17th, 1985, as previously stated, compels a completely fresh analysis of the rights of individuals and the use and abuse of power in Canadian society within the framework provided by the Charter itself. The Supreme Court of Canada has pronounced upon the meaning and application of s15, and a number of cases have now been decided by the court in relation to other sections of the Charter and its interpretation generally and specifically. The court has also pronounced on the effect of the Charter in a prison law context, and its decisions so far in other areas of the law are indicative of its profound influence on Canadian law generally. A brief review of some of the court's decisions to date is essential for its interpretation and application in a prison law context in the future.

    In its first decision on the Charter, Mr. Justice Estey, speaking for a full court in Law Society of Upper Canada v Skapinker made the following general statement as to the nature of the Charter and the nature of the task now facing the court:

    We are here engaged in a new task, the interpretation and application of the Canadian Charter of Rights and Freedoms as adopted first as an appendage to the Resolution of Parliament on December 8, 1981, and then as an appendix to the Canada Act, 1982, 1982 (UK), c11. This is not a statute or even a statute of the extraordinary nature of the Canadian Bill of Rights, RSC 1970, App III, c44. It is a part of the Constitution of a nation adopted by constitutional process which, in the case of Canada in 1982, took the form of a statute of the Parliament of the United Kingdom. The adoptive mechanisms may vary from nation to nation. They lose their relevancy or shrink to mere historical curiosity value on the ultimate adoption of the instrument as the Constitution. The British North America Act, 1867 was such a law, albeit but a statute of the Parliament of the United Kingdom and albeit incomplete in the absence of an intra-national amending mechanism. In the interpretation and application of this document the Judicial Committee of the Privy Council of the United Kingdom, which until 1949 was the highest level of the judicial branch engaged in resolving constitutional issues, said: "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits": Edwards et al v AG Can et al [1930] AC 124 at p136, per Viscount Sankey LC, who reiterated this judicial attitude towards a "constituent or organic statute such as the [BNA] Act" in British Coal Corp et al v The King (1935),64 CCC 145 at p154, [1935] 3 DLR 401 at p410, [1935] AC 500 at p518. This Court recognized the distinction between simple "statutory interpretation" and "a constitutional role" when the court was called upon to determine the effect of the Canadian Bill of Rights; Curr v The Queen (1972), 7 CCC (2d) 181 at p191, 26 DLR (3d) 603 at p613, [1972] SCR 889 at p899 per Laskin J, as he then was. The Canadian Bill of Rights is, of course, in form, the same as any other statute of Parliament. It was designed and adopted to perform a more fundamental role than ordinary statutes in this country. It is, however, not a part of the Constitution of the country. It stands, perhaps, somewhere between a statute and a constitutional instrument. Nevertheless, it attracted the principles of interpretation developed by the courts in the constitutional process of interpreting and applying the Constitution itself.

    There are some simple but important considerations which guide a court in construing the Charter, and which are more sharply focused and discernible than in the case of the federal Bill of Rights. The Charter comes from neither level of the legislative branches of government but from the Constitution itself. It is part of the fabric of Canadian law. Indeed, it "is the supreme law of Canada": s52, Constitution Act, 1982. It cannot be readily amended. The fine and constant adjustment process of these constitutional provisions is left by a tradition of a necessity to the judicial branch. Flexibility must be balanced with certainty. The future must, to the extent foreseeably possible, be accommodated in the present. The charter is designed and adopted to guide and serve the Canadian community for a long time. Narrow and technical interpretation, if not modulated by a sense of the unknowns of the future, can stunt the growth of the law and hence the community it serves. All this has long been with us in the process of developing the institutions of government under the BNA Act, 1867 (now the Constitution Act, 1867). With the Constitution Act, 1982 comes a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which, like the balance of the Constitution, remains to be interpreted and applied by the court.

    Mr. Justice Dickson (as he then was), also speaking on behalf of the unanimous court, made the following comments in Hunter v Southam Inc:

    The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and. when joined by a Bill or a Charter or Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts "not to read the provisions of the Constitution like a last will and testament lest it become one.

    The need for a broad perspective in approaching constitutional documents is a familiar theme in Canadian constitutional jurisprudence. It is contained in Viscount Sankey's classic formulation in Res 24 of BNA Act; Edwards v A-G Can [1930] 1 DLR 98 at pp106-7, [1930] AC 124 at pp136-7, [1929] 3 WWR 479, cited and applied in countless Canadian cases:

    "The BNA Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada.

    Their Lordships do not conceive it to be the duty of this Board-it is certainly not their desire-to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation…"

    More recently, in Minister of Home Affairs et al v Fisher et al,[1980] AC 319 at p329, dealing with the Bermudian Constitution, Lord Wilberforce reiterated that a constitution is a document "sui generis calling for principles of interpretation of its own, suitable to its character", and that as such, a constitution incorporating a Bill of Rights calls for [at p328]: "a generous interpretation avoiding what has been called 'the austerity of tabulated legalism' suitable to give individuals the full measure of the fundamental rights and freedoms referred to". Such a broad, purposive analysis, which interprets specific provisions of a constitutional document in the light of its larger objects, is also consonant with the classical principles of American constitutional construction enunciated by Chief Justice Marshall in M'Culloch v State of Maryland (1819) 17 US (4 Wheaton) 316. It. is, as well, the approach I intend to take in the present case.

    It follows from these general comments that a construction and interpretation of the Charter involves considerable additional rules of construction to those used for ordinary statutes in order to achieve the "broad" and "purposive analysis" referred to by Chief Justice Dickson(as he then was). In Skapinker the court ruled that neither federal nor provincial lnterpretation Acts applied to the Charter as it is not a creation of Parliament or of a provincial legislature and ruled that headings in the Charter could be used to assist in determining the intent of the makers where the section of the Charter under consideration was not clear or unambiguous. In the same case, the court declined to rule on the propriety of using historical material on the legislative history of the Charter in interpreting its provisions, although in a subsequent case, AG for Que v Quebec Ass'n of Protestant School Boards, the court did have regard to legislative history in construing section 23 of the Charter. Later still, Dickson, J(as he then was) in R v Big M Drug Mart Ltd made the following comment:

    At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v Skapinker(1984), 11 CCC (3d) 481,9 DLR (4th) 161, [1984] 1 SCR 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.

    Again, in Southam Dickson, J expanded upon his earlier statement as to "purposive analysis" in commenting on the meaning of s8 of the Charter which provides a right to be secure against unreasonable search or seizure:

    The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action. In the present case this means, as Prowse JA pointed out, that in guaranteeing the right to be secure from unreasonable searches and seizures, s8 acts as a limitation on whatever powers of search and seizure the federal or provincial governments already and otherwise possess. It does not in itself confer any powers, even of "reasonable" search and seizure, on these governments. This leads. in my view, to the further conclusion that an assessment of the constitutionality of a search and seizure, or of a statute authorizing a search or seizure must focus on its "reasonable" or "unreasonable" impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective.

    Since the proper approach to the interpretation of the Canadian Charter of Rights and Freedoms is a purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a search or of a statute authorizing a search, it is first necessary to specify the purpose underlying s8: in other words, to delineate the nature of the interests it is meant to protect.

    Dickson, J then proceeded to review the common law in England and the United States and concluded that s8 included "an entitlement to a 'reasonable' expectation of privacy".

    In the Big M Drug Mart case, Dickson, J, speaking for a majority of the court, held that in deciding whether or not a particular law offends the Charter, one must have regard first to the legislative purpose of the particular law and only if the law passes that "initial test of constitutional validity" need the court go on to consider the effects of the particular law. As Dickson, J put it:

    Thus if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant can still argue the effects of the legislation as a means to defeat its applicability and possibly its validity.

    Wilson, J, on the other hand, in concurring reasons, took the opposite view, holding that the Charter is "first and foremost an effects-oriented document".

    It is clear from the judgment that both the purpose and effects of a particular law must be examined to determine whether or not there is a contravention of the Charter.

    In Operation Dismantle Inc v The Queen, the court unanimously agreed that Cabinet decisions, pursuant to statutory authority or the Royal Prerogative, were reviewable by the courts, even if they involved political matters. Though the court did not find a violation of s7 of the Charter in the circumstances of that case, it clearly indicated a willingness to do so in circumstances where appropriate evidence was presented to the court, indicating a violation of that section.

    The Operation Dismantle case raises the further question of the meaning of the word "law" in the Charter. In that case, the meaning of that word was considered in the context of s52(1) of the Charter which provides that the Constitution of Canada is the supreme law of Canada and that any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect. The court appeared to interpret the meaning of "law" in an extremely broad fashion to include the executive action of Cabinet. Dickson, J, in his judgment, stated as follows:

    I would like to note that nothing in these reasons should be taken as the adoption of the view that the reference to "laws" in s52 of the Charter is confined to statutes, regulations and the common law. It may well be that if the supremacy of the Constitution expressed in s52 is to be meaningful, then all acts taken pursuant to powers granted by law will fall within s52. Equally, it is not necessary for the resolution of this case to express any opinion on the application of s1 of the Charter or the appropriate principles for its interpretation.

    As pointed out by Pratt in "The Supreme Law in the Supreme Court: The First Seven Charter Cases" the court has yet to define the meaning of this word in s1 of the Charter where it refers to "reasonable limits prescribed by law" and in s15 which provides for equality "before and under the law" and the right "to equal protection and equal benefit of the law". As Pratt points out, though a broad interpretation of that word in s52 is consistent with "an expansive and aggressive approach to the Charter because the court's power to annul unconstitutional activity largely stems from that section", on the other hand, "...the more expansive the meaning of 'law' in s1, the greater the potential for narrowing the impact of Charter rights and freedoms by means of reasonable limits." And further, that "the meaning of 'law' in s15 falls both physically and analytically between s1 and s52".

    This issue is more than of passing interest to those involved with prison law, bearing in mind the Supreme Court of Canada's previous interpretation of s28 of the Federal Court Act "required by law to be made on a judicial or quasi-judicial basis" in Martineau (No.1) and Martineau (No.2) and its finding that Commissioner's Directives did not have the force of law. Pratt predicts that the meaning of "law" in s1 will be given a much more restrictive interpretation than its meaning in s52 and points out that otherwise a "valid Charter right could be limited or abrogated by a Cabinet decision taken under the Royal Prerogative, Though it is not difficult to imagine provisions in Commissioner's Directives being found to be inconsistent with the Charter and therefore struck down as unconstitutional, just as they have been held invalid prior to the Charter as violations of natural justice, it is more difficult to imagine such Directives being upheld as "reasonable limits" on Charter rights that are "demonstrably justified in a free and democratic society." Until the Supreme Court interprets the meaning of "law" in s1 specifically, the better view would appear to be that Commissioner's Directives that purport to limit Charter rights are invalid and cannot, even if "reasonable", meet the test of the words "prescribed by law" so as to amount to an effective limitation under s1 on Charter guaranteed rights or freedoms. If this view is incorrect, then the issues in Martineau (No.1) and (No.2) may require relitigation. Similar issues may well arise if the court interprets the word "law" in s1 to include the common law and does not restrict its meaning to statutes and regulations or other statutory instruments.

    In Singh v Minister of Employment and Immigration, the Supreme Court held that s7 of the Charter applies to "everyone" in contrast to various other sections of the Charter which only apply to Canadian citizens or persons with the status of permanent resident. Wilson, J concluded that these words meant "... Every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law".

   The Singh case is a further interest, particularly in a prison law context, in that the court unanimously concluded that the procedures set out in the Immigration Act, 1976 were deficient in failing to provide procedures for a full oral hearing for convention refugee status claims and consequently violated s7 of the Charter. However, Beetz, J (Estey, J and Mcintyre, J concurring) declined to base his reasons on the Charter and instead found a violation of s2(e) of the Canadian Bill of Rights which retains all its force and effect through s26 of the Charter. In his view, the provisions of the Canadian Bill of Rights were "almost tailor made" for the factual situation presented. He reasoned that s2 (e) of the Canadian Bill of Rights protects "a right which is fundamental, namely, 'the right to a fair hearing in accordance with the principles of fundamental justice' for the determination of one's rights and obligations, fundamental or not." He concluded that the process of determining and re-determining refugee claims involved a determination of rights and obligations entitling the applicants to a right to a fair hearing in accordance with the principles of fundamental justice. In arriving at this conclusion, he re-introduces the "right"/"privilege" distinction and expressly says that the case is distinguishable from cases where a mere privilege was refused or revoked, citing Mitchell v R, a former decision of the Supreme Court of Canada in relation to parole revocation which held that s2 (e) of the Canadian Bill of Rights was not applicable to such circumstances. Beetz, J then goes on to indicate that he is not suggesting that the principles of fundamental justice will require an oral hearing in all cases and that the most important factors in determining the procedural content of fundamental justice are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned. In support for this proposition, he refers to the court's decision in AG of Canada v Inuit Tapirisat et al and the judgment of Estey, J, who in turn quoted the classic statement from Tucker, LJ, in Russell v Duke of Norfolk and the fundamental rule as stated by Lord Denning in Salvarajan v Race Relations Board. No reference is made to Martineau (No.2) and in particular that portion of the judgment of Dickson, J to the effect that a narrow or technical interpretation of the word "rights" misconceives the broader purpose of judicial review of administrative action. Beetz, J then concludes that because the appellants have stated under oath their reasons for claiming convention refugee status and because the Immigration Act gives persons with that status the right to remain in Canada or the right not to be removed to a country where life and freedom is threatened, that the rights in issue are of vital importance to those concerned. It is interesting to note this conclusion, bearing in mind that the applicants had not been determined to have convention refugee status, but were merely applying or claiming to have that staus.. Beetz, J then continues and finds that threats to life or liberty are relevant with respect to the type of hearing that is warranted in the circumstances and holds that at least one full oral hearing is required before adjudication on the merits. He further points out that there are additional reasons requiring an oral hearing in circumstances where life or liberty may depend upon findings of fact and credibility and written submissions would be insufficient.

    Wilson, J (Dickson, CJC and Lamer, J concurring), though arriving at the same result, bases her reasons on her finding that the situation fell within the constitutional protections afforded by the Charter. Wilson, J points out, however, that the appellants, on the facts, are claiming that the procedural mechanisms in the Immigration Act as opposed to the application of those procedures to their particular cases have deprived them of their rights under the Charter and that "...if, as a matter of statutory interpretation, the procedural fairness sought by the appellants is not excluded by the scheme of the Act, there is, of course, no basis for resort to the Charter. The issue may be resolved on other grounds." In other words, the court will not express an opinion on the constitutional validity of a statute in a situation in which it is not necessary to the court's decision to do so. After a review of the nature of the rights affected and the procedure set out under the Act, Wilson, J concludes that the provisions in the Act are of the type which expressly preclude the courts from reading in the principles of natural justice or procedural fairness and that therefore it must be on the basis that the Charter requires the court to override Parliament's decision to exclude the kind of procedural fairness sought. As to the nature of the rights in question, Wilson, J notes that the appellants did not have a right to come into or remain in Canada, but they did have the right to a determination from the Minister, based on proper principles, as to whether a permit should be issued entitling them to enter and remain in Canada and a right not to be returned to a country where his or her life or freedom would be threatened, as well as the right to appeal the removal order or deportation order.

    Wilson, J then proceeds to consider the meaning of the words "the right to life, liberty and security of the person" in s7 and reviews the "single right" theory articulated by Marceau, J in R v Operation Dismantle Inc to the effect that these words form a single right with closely interrelated parts and relates to matters of death, arrest, detention, physical liberty and physical punishment of the person. Even adopting this restrictive interpretation Wilson, J concludes that the "right" articulated in section 7 has three elements and that there need not be a deprivation of all three elements before an individual is deprived of his "right" under S7. Wilson, J then refers to the broad definition of "liberty" in decisions of the United States Supreme Court and concludes that to deprive a person of the avenues open to him under the Act to escape from fear of persecution must at least impair his right to life, liberty and security of the person in the narrow sense of the "single right" theory. With respect to the meaning of "security of the person", Wilson, J reviews broad definitions of that term and concludes that it is not necessary to consider whether such an expansive approach to those words should be taken because, even adopting a narrow approach, the words must encompass "freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself".As support for this approach, Wilson, J refers to the prison law case of Collin v Lussier where a prisoner successfully quashed a transfer from medium security to maximum security by merely showing that it was likely that his health would be impaired by such a transfer.

    With respect to the "right"/"privilege" distinction or dichotomy, Wilson, J points out that the courts have consistently held that immigration is a privilege and not a right and points out that that dichotomy played a significant role in narrowing the scope of the application of the Canadian Bill of Rights as was apparent from the judgment of the Supreme Court in Mitchell v R. Wilson, J reviews the majority judgment of Martland, J in Mitchell and concludes:

    I do not think this kind of analysis is acceptable in relation to the Charter. It seems to me rather that the recent adoption of the Charter by Parliament and nine of the ten provinces is part of the Canadian constitutional framework has sent a clear message to the courts that the restrictive attitude which at times characterize their approach to the Canadian Bill of Rights ought to be examined. I am accordingly of the view that the approach taken by Laskin, CJ, dissenting in Mitchell is to be preferred to that of the majority as we examine the question whether the Charter has any application to the adjudication of rights granted to an individual by statute.

    After a review of Laskin, CJ's decision in Mitchell, Wilson, J concludes that on the facts in Singh, the appellants had a stronger argument than Mitchell and that given the potential consequences to them of a denial of refugee status it would be unthinkable that the Charter would not apply to entitle them to fundamental justice in an adjudication of their status. On the question of whether or not fundamental justice is denied by the procedures set up in the Immigration Act, Wilson, J accepts that at a minimum the concept of "fundamental justice" in s7 of the Charter includes the notion of procedural fairness and that procedural fairness may demand different things in different contexts. She expresses the view that matters such as death, physical liberty and physical punishment would, on the surface, at least constitute matters of such fundamental importance that procedural fairness would invariably require an oral hearing, but indicates that she's prepared to accept that written submissions may be an inadequate substitute for an oral hearing in appropriate circumstances. However, written submissions will not be satisfactory for all purposes and where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Wilson, J further concludes that because the proceedings before the Immigration Appeal Board were quasi-judicial, that the Board was not entitled to rely on material outside the record which the refugee claimant submitted on the application for redetermination. She characterizes the procedure as highly adversarial and holds that the procedure requiring the applicant to establish on the balance of probabilities that the Minister was wrong without knowledge of the Minister's case beyond rudimentary reasons in rejecting the claim is impossible to reconcile with the requirements of "fundamental justice". In Wilson, J's view, fundamental justice requires an entitlement to discovery of the Minister's case prior to such a hearing, subject to the doctrine of Crown privilege.On the question of whether the procedures amount to "reasonable limits prescribed by law that are demonstrably justified in a free and democratic society" under s1 of the Charter. Wilson, J expresses doubt that utilitarian considerations can constitute justifications for limitations on Charter rights because this would render the guarantees in the Charter illusory on the basis of administrative convenience. In conclusion, Wilson, J expresses the caution that she does not foreclose the possibility that s7 of the Charter protects a wider range of interests than those involved on the facts in the Singh case.

    In Reference Re section 94(2) of the Motor Vehicle Act (BC), the Supreme Court of Canada once again had occasion to consider the ambit and scope of s7. In particular, the court was called upon to determine the scope of the words "principles of fundamental justice". Lamer, J, for the majority, concluded that the phrase is not in itself a protected right but a qualifier to the protected right not to be deprived of "life, liberty and security of the person" and that its function was to set the parameters of that right. He further concluded that interpretation of the term had to be with reference to the protected right, but not so as to "frustrate or stultify it", and that an interpretation equating "fundamental justice" with "natural justice" would be wrong and would strip the protected interests of most of their content and would also be inconsistent with the affirmative, purposive expression of those rights. He concluded that ss8 through 14 of the Charter address specific deprivations of the "right" to life, liberty and the security of the person in breach of the principles of fundamental justice and as such amounted to violations of s7. These sections, in his opinion, were illustrative of the meaning of "principles of fundamental justice" in criminal or penal law as they recognize principles given expression at common law, by international convention and in the very entrenchment of the Charter itself as essential elements for the administration of justice founded on the dignity and worth of the human person and the rule of law. Consequently, the principles of fundamental justice were to be found in the basic tenets and principles not only of the judicial process, but also of other components of the legal system and were not limited to procedural guarantees, although many are of that nature. To determine whether any given principle constitutes a principle of fundamental justice within the meaning of s7, an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in the evolving legal system was required. Consequently, the words "principles of fundamental justice" could not be given exhaustive definition, but would evolve as the court's address specific violations of s.7. Though minutes of the proceedings of the special joint committee were admissible, little weight should be given to them due to their inherent unreliability. To cast the interpretation of s7 in terms of the comments made at such a committee would freeze the rights, values and freedoms expressed in the Charter as of the moment of adoption and deny it growth and adjustment over time. Furthermore, the interpretation of the words "principles of fundamental justice" in s2 (e) of the Canadian Bill of Rights was of little assistance because of the different context of those words in that statute compared to the context in the Charter. It was held that an absolute liability offence with the potential to deprive of life, liberty or the security of the person violates s7. A combination of imprisonment and absolute liability would violate s7 irrespective of the nature of the offence and could only be salvaged by demonstrable justification under s1 of the Charter. Generally, no imprisonment could be imposed for an absolute liability offence and an offence punishable by imprisonment could not be an absolute liability offence. The public interest could only enter into the question as a factor under s1 and not under s7 and furthermore, administrative expediency, could not be invoked as a justification for sacrificing s7 rights, except in exceptional situations such as war, natural disasters or epidemics.

    Wilson, J arrived at the same conclusion but by a different route. In her view, the phrase "in accordance with principles of fundamental justice" was not a qualification on the right to life, liberty and security of the person in the sense of limiting, modifying or defining the parameters of that right. Instead, it was her view that it protects that right against deprivation or impairment unless such deprivation or impairment is affected in accordance with the principles of fundamental justice. Section 7 does not provide a right to the principles of fundamental justice in itself and consequently for an offence to offend s7 it would have to violate the right to either life, liberty or security of the person through a violation of the principles of fundamental justice. As far as s1 of the Charter was concerned, it was her view that any reasonable limits under s1 would have to be imposed in accordance with the principles of fundamental justice, otherwise they could not be reasonable, nor justifiable, under s.1.Consequently, the phrase "except in accordance with the principles of fundamental justice" restricts the government's power to impose limits under s1 and a limit imposed on a s7 right in accordance with the principles of fundamental justice would still have to meet the tests of s.1. Wilson, J agreed that there was no reason to restrict the principles of fundamental justice to procedural matters in light of the reference to the rule of law in the preamble to the Charter. In her view, imprisonment was the most severe sentence imposed by law, apart from death, and was to be generally reserved as a last resort for occasions when other sanctions could not achieve the objectives of the system.A requirement of mandatory imprisonment for an absolute liability offence, committed unknowingly and unwittingly and after the exercise of due diligence, was excessive and inhumane, and offends the principles of fundamental justice embodied in the Canadian penal system and was inconsistent with s7 of the Charter.

    In a prison law context, it is worth noting that Lamer, J, in holding that a broad interpretation of the words "principles of fundamental justice" was required, held that the rights involved were as fundamental as those which pertain to life, liberty and security of the person, the deprivation of which "has the most severe consequences upon an individual" citing, with approval, the decision of the Ontario High Court in R v Cadedduwhich held that a prisoner has a right to a hearing, by virtue of s7 of the Charter, when the question of the suspension and possible revocation of parole is at issue. Furthermore, it is also worth noting that later in his judgment, he says:

   Imprisonment (including probation orders) deprives persons of their liberty.

And further still, when commenting on administrative expediency:

    Indeed, administrative expediency certainly has its place in administrative law. But when administrative law chooses to call in aid imprisonment through penal law, indeed sometimes criminal law and the added stigma attached to a conviction, exceptional, in my view, will be the case where the liberty or even the security of the person guaranteed under 57 should be sacrificed to administrative expediency. Section 1, may for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like.

    Wilson, J, who agreed with the judgment of the majority but for different reasons, was of the view that the attachment of the mandatory term of imprisonment to an absolute liability offence created by statute offends a principle of fundamental justice because of the "theory of punishment in relation to fundamental justice." Wilson, J held as follows:

    It is now generally accepted among penologists that there are five main objectives of the penal system: see Nigel Walker. Sentencing in a Rational Society, (1969). They are:

    to protect offenders and suspected offenders against unofficial retaliation;

    to reduce the incidence of crime;

    to ensure that offenders atone for their offences;

    to keep punishment to the minimum necessary to achieve the objectives of the system; and

    to express society's abhorrence of crime.

    Apart from death, imprisonment is the most severe sentence imposed by the law and is generally viewed as a last resort, ie, as appropriate only when it can be shown that no other sanction can achieve the objectives of the system.

    The Law Reform Commission of Canada in its Working Paper 11 -Imprisonment and Release (Studies on Imprisonment, 1976) states at p10:

    Justice requires that the sanction of imprisonment not be disproportionate to the offence, and humanity dictates that it must not be heavier than necessary to achieve its objective.

    In Wilson, J's view, the nature of the absolute liability offence in question permitted a person to be convicted of the offence, even though he was unaware at the time of driving that his license was suspended and was unable to find this out even with the exercise of due diligence. Wilson, J felt, this would shock the conscience of the court and would bring the administration of justice into disrepute as an unreasonable and extravagant penalty, totally disproportionate to the offence and quite incompatible with the objectives of a penal system. In conclusion, Wilson, J held:

    It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system. This is not to say that there is an inherently appropriate relationship between a particular offence and its punishment but rather that there is a scale of offences and punishments into which the particular offence and punishment must fit. Obviously this cannot be done with mathematical precision and many different factors will go into the assessment of the seriousness of a particular offence for purposes of determining the appropriate punishment but it does provide a workable conventional framework for sentencing. Indeed, judges in the exercise of their sentencing discretion have been employing such a scale for over a hundred years.

    Wilson, J concluded that a mandatory term of imprisonment for an offence committed unknowingly and unwittingly after the exercise of due diligence was grossly excessive and inhumane, was not required to reduce the incidence of the offence, was beyond anything required to satisfy the need for "atonement" and that society would not be abhorred by an unintentional and unknowing violation of the section in question. The sanction, therefore, offended the principles of fundamental justice embodied in our penal system.

    Bearing in mind that in relation to matters of imprisonment questions of the "life, liberty and security of the person" will frequently and invariably arise, as will questions of the "principles of fundamental justice" in relation thereto, the interrelationship between s7 and s1 of the Charter will frequently constitute the broad constitutional context in which each issue will arise in prison law litigation. Section 1, which allows for a balancing of interest through "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" is perhaps the most important section of the Charter which will determine the extent to which the rights and freedoms guaranteed by s1 and other sections of the Charter might be limited. (update with sentencing stuff CAM etc)

    As noted earlier,the term "prescribed by law" in this section has yet to be definitively interpreted. Its further interpretation will involve an issue of fundamental importance in prison law in relation to the status of Commissioner's Directives and other subordinate administrative rules. (update from cases)

    Though s1 has been considered by the court on a number of occasions, it was not until the decision of the Supreme Court of Canada in R v Oakesthat some detailed guidance was provided with respect to the meaning of the term "reasonable limits", In that case, the court struck down s8 of the Narcotic Control Act which placed a reverse onus on an accused, found to be in possession of a narcotic, by requiring such an accused to rebut a presumption of possession for the purpose of trafficking, instead of requiring the Crown to prove that element of the offence like any other. The court found that s8 of the Narcotic Control Act violated the presumption of innocence provided for in s11 (d) of the Charter in that the section did not amount to a "reasonable limit" that could be "demonstrably justified in a free and democratic society". Dickson, CJ, in giving judgment for the majority (concurred in by Macintyre, J and Estey, J) held that the presumption of innocence is one of the "core values of our criminal justice system"and following the "purposive approach" went on to define the meaning of that phrase in s11 (d) of the Charter as follows:

    The presumption of innocence is a hallowed principle lying at the very heart of criminal law. Although protected expressly in s11 (d) of the Charter, the presumption of innocence is referable and integral to the general protection of life, liberty and security of the person contained in s7 of the Charter (see Reference re 594(2) of the Motor Vehicle Act, December 17, 1985, unreported, per Lamer J). The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused's guilty beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.

    After referring to the longstanding recognition of this cardinal value at common law and evidence of its widespread acceptance by its inclusion in the Universal Declaration of Human Rights, adopted December 10th, 1948 by the General Assembly of the United Nations and the International Covenant on Civil and Political Rights, 1966, art 14(2), and Canada's accession to the covenant and the Optional Protocol effective August 19th, 1976, Dickson, CJ concluded that the right to be presumed innocent until proven guilty requires the following minimum content be given to s11 (d) of the Charter:

    First, an individual must be proven guilty beyond a reasonable doubt. Second, it is the State which must bear the burden of proof. As Mr. Justice Lamer stated in Dubois v The Queen (November 21, 1985, unreported) at p6:

Section 11(d) imposes upon the Crown the burden of proving the accused's guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or calling other evidence.

Third, criminal prosecutions must be carried out in accordance with lawful procedures and fairness. The latter part of s11 (d), which requires the proof of guilt "according to law in a fair and public hearing by an independent and impartial tribunal", underlines the importance of this procedural requirement.

In considering s1, Dickson, CJ provided the following detailed analysis:

    It is important to observe at the outset that s1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow: and, second, it states explicitly the exclusive justificatory criteria (outside of s33 of the Constitution Act, 1982) against which limitations on those rights and freedoms must be measured. Accordingly, any s1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms-rights and freedoms which are part of the supreme law of Canada. As Madame Justice Wilson stated in Singh et al v Ministry of Employment and Immigration, supra, at pp219-19: "... it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter.

    A second contextual element of interpretation of s1 is provided by the words "free and democratic society". Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.

    The rights and freedoms guaranteed by the Charter are not, however, absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance. For this reason, s1 provides criteria of justification for limits on the rights and freedoms guaranteed by the Charter. These criteria impose a stringent standard of justification, especially when understood in terms of the two contextual considerations discussed above, namely, the violation of a constitutionally guaranteed right or freedom and the fundamental principles of a free and democratic society.

    Dickson, CJ then reiterates the position as to the onus of proof as set out in his judgment in Hunter v Southam Inc to the effect that the onus of proof that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation. This judgment goes further to provide that the standard of proof under s1 is the civil standard of proof by a preponderance of probabilitiesy as opposed to a criminal standard requiring proof beyond a reasonable doubt, but that the civil standard must be applied rigorously requiring "a very high degree of probability ...commensurate with the occasion" and bearing in mind that the section is being invoked to justify a violation of a constitutional right or freedom guaranteed by the Charter. This, Dickson, CJ said, would generally require cogent and persuasive evidence making clear to the court the consequences of imposing or not imposing a limit, as well as evidence of what alternative measures were available to implement the objective to the legislatures at the time of their decision. Dickson, CJ noted, however, that there may be cases where certain elements involved in a s1 analysis would be obvious or self-evident.

    The Chief Justice then sets out the framework or analysis required to establish that a limit is a reasonable and demonstrably justified one in a free and democratic society:

    To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R v Big M Drug Malt Ltd, supra, at p352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

    Second, once a sufficiently significant objective is recognized, then the party invoking s 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R v Big M Drug Mart Ltd, supra, at p352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair ''as little as possible" the right or freedom in questions R v Big M Drug Mart Ltd, supra, at 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

    With respect to the third component, it is clear that the general effect of any measure impugned under s1 will be the infringement of a right or freedom guaranteed by the Charter; this is the reason why resort to s1 is necessary. The inquiry into effects must, however, go further. A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious than others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society. Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.

    Applying this test to s8 of the Narcotic Control Act, Dickson, CJ concluded from a review of existing legislation and international obligations, as well as senate reports and commissions of inquiry and legislation in other countries that the nature of Parliament's interest or objective could be characterized as substantial and pressing and of sufficient importance to warrant overriding a constitutionally protected right or freedom in certain cases. The first criterion of s1 was therefore satisfied. In Dickson's view, this conclusion was, to a large extent, "self-evident". The section did not, however, pass the second stage and Dickson, CJ concluded that the means chosen by Parliament to achieve its objective was not internally rational because possession of a small or negligible quantity of narcotics would not support an inference of trafficking and it would be irrational and unfair to do so. Bearing in mind the seriousness of the offence and the maximum penalty available, Dickson, CJ held that the first component of the proportionality test had not been satisfied and consequently it was not necessary to consider the other two components.

    It is of interest to note that Dickson, J, in Oakes, indicates that in certain circumstances "reasonable limits" on guaranteed Charter rights will be self-evident.In Southam, Dickson, CJ made it clear that the onus of proof under s1 was on the party seeking to impose the limit. There is no onus on a person asserting that his Charter rights have been infringed to prove that the limits on his rights are unreasonable or not demonstrably justified in a free and democratic society. In AG Que v Quebec Assn of Protestant School Boards, it was held that the Quebec Minority Language Bill 101 was not capable of constituting a reasonable limit under s1 of the Charter. The court held that the provisions of the Bill were in direct conflict with s23 of the Charter and therefore could not be legitimized under s1 and could not be considered as exceptions to the rights and freedoms set out in the Charter, nor amount to amendments of the Charter. In the Big M Drug Mart case, Mr Justice Dickson held that "not every government interest or policy objective is entitled to s1 consideration". He pointed out that: "... Parliament cannot rely upon an ultra vires purpose under s1 of the Charter: This use of s1 would invite colourability, allowing Parliament to do indirectly what it could not do directly." As Pratt points out in his analysis of the first seven Charter cases:

    Clearly, legislation found to be contrary to the Charter cannot be justified in terms of the very criteria which are offensive. Justification under s1 must, therefore, be accomplished by the reference to criteria external to the impugned purpose or effect.

    In Singh, Wilson, J commented on the limited amount of factual material put before the court in support in that case and rejected the utilitarian considerations and administrative convenience arguments put forward to justify curtailing Charter rights and freedoms. In R v Therens, a case where the accused was not informed of his rights under s10(b) of the Charter to retain and instruct counsel without delay and where, as a result, a breathalyzer certificate of analysis was excluded under s24(2) of the Charter, it was held that s1 of the Charter was not applicable because Parliament in s235(1) of the Criminal Code (the section authorizing peace officers, on reasonable grounds, to demand breath samples) had not purported to limit the rights provided in s10(b) of the Charter and Estey, J held that there was no need to consider s1 of the Charter because the accused's rights were not violated as a result of the operation of law, but as a result of the conduct of the police officers in question. Section 1 of the Charter was also considered by the court in Reference Re 594(2) of the Motor Vehicle Act where Lamer, J held that that section of the Motor Vehicle Act had not been shown to be a reasonable limit. Generally speaking therefore, it would appear that the courts will require some evidence to meet the onus under s1, but there will be cases where some proof of demonstrable justification will be self-evident.

    The Charter has been considered by the Supreme Court of Canada in other cases to date and a brief comment on each of those cases should be made in relation to those matters arising that are of relevance to prison law. In Therens,the court interpreted s10 of the Charter and in particular, the meaning of the word "detention" in that section. LeDain, J, giving judgment for the majority on this aspect of the matter only, reconsidered prior decisions of the court on the meaning of these words before the Charter and held that they could not constitute a reliable guide. In LeDain, J's view, the words of section 10 necessarily refer to a great variety of detentions of varying duration and that bearing in mind the purpose of s10, the word "detention" is "directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel, but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee". LeDain, J continued that in addition to deprivation of liberty by physical constraint, there would still be a detention within the meaning of s10 when a police officer or other agent of the state assumes control over the movement of the person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel. LeDain, J agreed with the previous decision of the court in Chromiakthat detention requires "some form of compulsory restraint" to the extent that there would have to be some form of compulsion or coercion to constitute an interference with liberty or freedom of action amounting to a detention. However, in his view, the term was broad enough to include psychological compulsion or coercion in circumstances where a refusal to comply with a demand or a direction results in criminal liability. Although not strictly necessary for purposes of the case, LeDain, J indicated that he would go further and held that "the element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist."

    This broad definition of detention raises interesting questions with respect to the various forms of detention that arise after imprisonment throughout the course of a sentence such as detentions in administrative segregation pending disciplinary court or under s31 of the CCRA. for the good order of the institution as well as various forms of detention resulting in transfers to higher security or to special handling units.

    In Krug v R, the court considered the meaning of s11(h) of the Charter. La Forest, J, in giving judgment for the court, held that s11 (h) of the Charter is very narrowly worded and does not address the problem of multiple convictions in the same proceeding. It merely provides that a person is not to be tried for the same offence in a subsequent proceeding. This does not mean, however, that the rule against multiple convictions or the Kienapple principle might not apply to the circumstances of any case. This interpretation of s11 (h) is worthy of note when issues of res judicata arise in relation to disciplinary court convictions, followed by Criminal Code charges arising out of the same matter, or vice versa. (update)

    In Valente v R, the court considered the meaning of s11 (d) of the Charter and in particular, the meaning of the words "independent and impartial tribunal". Though the decision pertained to the independence of provincial court judges, the decision is worth noting in relation to any consideration of the independence of so-called "independent chairpersons" sitting in disciplinary courts under the CCRA. LeDain, J, giving judgment for the court, held that the concepts of "independence" and "impartiality" are different, notwithstanding a close relationship. "Impartiality" refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case and absence of bias, actual or perceived.The word "independent" reflects or embodies the traditional constitutional value of judicial independence and connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees. In LeDain, J's view, the test for independence under s11 (d) should be, as for impartiality, whether the tribunal may be reasonably perceived as independent. The section cannot be construed to give provincial court judges the same constitutional guarantees of security of tenure, salary and pension as superior court judges because such a construction would result in an amendment to the judicature provisions of our constitution. Security of tenure was considered, however, to be the first essential condition of judicial independence and its essence involved being secure against interference by the executive or other appointing authority in a discretionary or arbitrary manner. The second essential condition for judicial independence was stated to be financial security, the essence of which is that the salary and pension should be established by law and not subject to arbitrary interference by the executive in a manner that could affect judicial independence. The third essential condition of judicial independence is institutional independence with respect to matters of administration bearing directly on the exercise of the judicial function and includes. at a minimum, such matters as assignment or judges, sittings of the court and court lists. Administrative autonomy could not be regarded as essential.