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From substantive due process to substantive principles of fundamental justice Tremblay, Luc 1983

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FROM SUBSTANTIVE DUE PROCESS TO SUBSTANTIVE PRINCIPLES OF FUNDAMENTAL JUSTICE by LUC TREMBLAY L.L.B., The U n i v e r s i t y of Sherbrooke, 1981 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAW i n THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept t h i s thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA September 1983 0 Luc Tremblay, 1983 In presenting t h i s thesis i n p a r t i a l f u l f i l m e n t of the requirements f o r an advanced degree at the U n i v e r s i t y of B r i t i s h Columbia, I agree that the L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r reference and study. I f u r t h e r agree that permission f o r extensive copying of t h i s t h e s i s f o r s c h o l a r l y purposes may be granted by the head of my department or by h i s or her representatives. I t i s understood that copying or p u b l i c a t i o n of t h i s thesis f o r f i n a n c i a l gain s h a l l not be allowed without my written permission. Department o f | ay The U n i v e r s i t y of B r i t i s h Columbia 1956 Main Ma l l Vancouver, Canada V6T 1Y3 Date October 14, 1983 ABSTRACT In A p r i l 1982, Canada entrenched i n i t s c o n s t i t u t i o n a Charter of Rights and Freedoms. Section 7 of t h i s new document provides that "everyone has the r i g h t to l i f e , l i b e r t y and s e c u r i t y of the person and the r i g h t not to be deprived thereof except i n accordance with the p r i n c i p l e s of fundamental j u s t i c e " . The Canadian B i l l of Rights (1960), and the B r i t i s h and American c o n s t i t u t i o n s , safeguarded those fundamen-t a l r i g h t s through the phrase "due process of law" instead of " p r i n c i p l e s of fundamental j u s t i c e " . The phrase "due process of law" has often been analysed i n terms of the dichotomy between "substantive due process" and "proce-dural due process". There i s evidence that the drafters of the Charter rejected the phrase "due process" to avoid any introduction i n Canada of the American concept of substantive due process. In t h e i r minds, " p r i n c i p l e s of fundamental j u s t i c e " protect what i s c a l l e d "procedural due process". The purpose of t h i s thesis i s to suggest an i n t e r p r e t a t i o n of the phrase " p r i n c i p l e s of fundamental j u s t i c e " which f i t s into our Anglo-Canadian t r a d i t i o n of c o n s t i t u t i o n a l law. This i n t e r p r e t a t i o n has nothing to do with the American i n t e r p r e t a t i o n of "due process of law". The approach that I suggest should lead to the abandonment of the t r a d i t i o n a l dichotomy borrowed from the United States between "procedural due process" and "substantive due process". I t does not mean that section 7 of the Charter w i l l never give the same r e s u l t as the American jurisprudence, but the reasoning to reach such a r e s u l t w i l l be i n accordance with our Canadian c o n s t i t u t i o n a l t r a d i t i o n . I conclude that the B r i t i s h and the Canadian courts have been relu c t a n t to adopt "substantive due process" because of the doctrine of supremacy of Parliament. I then examine i n d e t a i l the evolution of "substantive due process" i n the United States.and show that the Ameri-can i n t e r p r e t a t i o n arose out of a c o n s t i t u t i o n a l t r a d i t i o n d i f f e r e n t from that of Canada. I argue that i t was u n l i k e l y that Canada could have imported the American i n t e r p r e t a t i o n of "substantive due process" without doing violence to i t s own c o n s t i t u t i o n a l t r a d i t i o n . I then suggest an i n t e r p r e t a t i o n of the phrase " p r i n c i p l e s of fundamental j u s t i c e " which conforms to Canadian c o n s t i t u t i o n a l t r a d i t i o n . I argue that those p r i n c i p l e s of j u s t i c e e x i s t at common law and were already protected through the f i c t i o n of several "presumptions" created from time to time by the courts to i n t e r p r e t statutes. Those p r i n c i p l e s of j u s t i c e encompass both procedural and subs-tantive matters, but the proposed approach-makes t h a t d i s t i n c t i o n i r r e l e v a n t . The only relevant question i n regard to section 7 i s whether a " p r i n c i p l e of fundamental j u s t i c e " a r i s i n g out of the Anglo-Canadian l e g a l system i s at stake.in a given case. i v . TABLE OF CONTENTS Page ABSTRACT i i ACKNOWLEDGEMENT v i INTRODUCTION 1 CHAPTER I Due Process of Law and the Content of Governmental Acts 10 CHAPTER II J u d i c i a l Review of the Substantive Content of the Law i n England 29 a) Supremacy of the Common Law 30 b) Supremacy of Parliament 34 CHAPTER I I I J u d i c i a l Review of the Substantive Content of the Law i n the United States 37 a) Limitations on Government Before Substan-t i v e Due Process 38 b) Substantive Due Process Before 1937 51 1. Before Lochner 52 2- Lochner v. New York. 62 3. A f t e r Lochner 70 c) The Revolution of 1937 78 d) Substantive Due Process A f t e r 1937 84 1. The Rational Basis Test 84 2. The S t r i c t Scrutiny Test 9 0 CHAPTER IV J u d i c i a l Review of the Substantive Content of the Law i n Canada 97 V. Page CHAPTER V. The American Substantive Due Process, The P r i n c i p l e s of Fundamental J u s t i c e and the Drafters of the'Charter 105 CHAPTER VI American Substantive Due Process and Cana-dian C o n s t i t u t i o n a l Traditions 117 CHAPTER VII The Canadian Sources of Substantive P r i n -c i p l e s of Fundamental Jus t i c e 129 CONCLUSION 163 BIBLIOGRAPHY 169 ACKNOWLEDGEMENT So many persons d i r e c t l y or i n d i r e c t l y contributed to t h i s t h e s i s that i t i s d i f f i c u l t to mention a l l of them. However I f e e l i t proper to acknowledge some of those. toiswhom I have a s p e c i a l o b l i -gation . F i r s t and foremost, I wish to thank my thesis supervisor, Professor William W. Black of the U n i v e r s i t y of British-Columbia f o r h i s remarkable assistance throughout the year. Without his constant enthousiasm,- encouragement, perspicacious comments and c r i t i c i s m s , t h i s thesis would not have been such a pleasure to achieve. I must also express my gratitude to Janet Chapman and J u l i e t t e V e i l l e u x who proofread my manuscript. Likewise, I must thank the t y p i s t Raymonde Leblanc f o r her r a p i d i t y and accuracy i n her work. La s t l y , I owe a s p e c i a l debt of gratitude to my best f r i e n d , GenevieVe. 1 INTRODUCTION In A p r i l 1982 Canada entrenched i n i t s c o n s t i t u t i o n the Charter of Rights and Freedoms*. Henceforth any governmental and l e g i s l a t i v e act which i n f r i n g e s any r i g h t or freedom recognized i n the Charter 2 must be declared of no force and e f f e c t . Section 7 of t h i s c h a r t e r provides t h a t : Everyone has the r i g h t too l i f e , l i b e r t y and secu-r i t y o f the person and the r i g h t not to be deprived thereof except i n accordance w i t h the p r i n c i p l e s of fundamental j u s t i c e . This s e c t i o n reminds one of the American c o n s t i t u t i o n which provides that no one s h a l l be deprived of h i s r i g h t to l i f e , l i b e r t y 3 or p r o p e r t y "without due process of law" . I t a l s o c a l l s to mind s e c t i o n 1(a) o f the Canadian B i l l of Rights ( I 9 6 0 ) 4 which provides t h a t : 1. C o n s t i t u t i o n A c t , 1982, as enacted by the Canada:Act, 1982,cc. .11 (U.K.), proclaimed i n force A p r i l 17, 1982. I t w i l l be c a l l e d the Charter or the Charter of Ri g h t s . 2. Secti o n 52 provides t h a t : "The C o n s t i t u t i o n of Canada i s the Supreme law of Canada, and any law t h a t i s i n c o n s i s t e n t w i t h the p r o v i s i o n s of the c o n s t i t u t i o n i s , to the extent of the i n c o n s i s t e n c y , of no force or e f f e c t " . 3. U.S. Const, amend. V, # 1: "No person s h a l l be...deprived of l i f e , l i b e r t y , or p r o p e r t y , without due process of law..." And U.S. Const, amend. XTV, # 1'- "Nor s h a l l any State deprive any person o f l i f e , l i b e r t y , or pr o p e r t y , without due process of law..." 4. R.S.C. 1970, Appendix 111. I t w i l l be c a l l e d the Canadian B i l l of Ri g h t s . 2. 1. I t i s hereby recognized and declared that i n Canada there have existed and s h a l l continue to e x i s t without discrimination by reason of race, nation a l o r i g i n , colour, r e l i g i o n or sex, the following human, r i g h t s and fundamental freedoms, namely, (a) the r i g h t of the i n d i v i d u a l to l i f e , l i b e r t y , s e c u r i t y of the person and enjoyment of property, and the r i g h t not to be deprived thereof except by due process of law. Therefore many authors and many courts have already r e f e r r e d to those due process clauses to i n t e r p r e t section 7 of the Charter of Rights and Freedoms^. The main question i n regard to t h i s section seems to be whether the phrase " p r i n c i p l e s of fundamental j u s t i c e " i s l i m i t e d to the s o - c a l l e d "procedural due process" or whether i t can be seen broadly i n order to give e f f e c t to the s o - c a l l e d "substantive due process"^. This thesis w i l l discuss the r a t i o n a l e underlying the i n t e r p r e t a t i o n of section 7 of the charter i n "due process of law" language giving r i s e to the t r a d i t i o n a l dichotomy between "procedure" and "substance". 5. See the recent d e c i s i o n , i n the matter of the C o n s t i t u t i o n a l Question Act, R.S.B.C., 1979, c. 63, and i n the matter of the Reference Re  Section 94 (2) of the Motor Vehicle Act, R.S.B.C., 1979, c. 288, as amended by the Motor Vehicle Amendment Act, 1982, S.B.C, 1982, c. 36, Feb. 3, 1983, Vancouver, Ca 821013, unreported (B.C.C.A.). It w i l l be c a l l e d The Motor Vehicle Act Reference. Hogg, Canada Act  1982 Annotated, Toronto: Carswell, 1982, at 26; Garant, "Fundamen-t a l Freedoms and Natural J u s t i c e " , i n Tarnopolsky, Beaudoin, TKe. Canadian Charter of Rights and Freedoms, Commentary, Toronto: Cars-well, 1982, 257, at 275; McDonald, Legal Rights i n The Canadian  Charter of Rights and Freedoms, Toronto: Carswell, 1982, at 23. 6. See e.g. The Motor Vehicle Act Reference; Westendorp v. The Queen, January 25, 1983, S.C.C.; R. v. A.N., January 13, 1982, Terr. C. Yukon; C v. D.A.C., November 5, 1982, Prov. Ct. Fam. Div. Man. 3. Though the p a r a l l e l with the due process clauses i s relevant i n the i n t e r p r e t a t i o n and the scope of the words " l i f e " , " l i b e r t y " or "secu-r i t y " , nothing i n section 7 indicates that the phrase " p r i n c i p l e s of fundamental j u s t i c e " must be interpreted i n the l i g h t of the phrase "due process of law"as understood i n American jurisprudence. I f there i s a 7 p a r a l l e l , i t should e x i s t by i n t e r p r e t a t i o n . It i s true that i n one sense the phrase " p r i n c i p l e s of fundamen-t a l j u s t i c e " follows the t r a d i t i o n established by "due process of law" 8 and by "the law of the land" . The o r i g i n of t h i s t r a d i t i o n i s found 9 i n the Magna Carta . That Charter, which was signed by King John i n 1215 was a t r e a t y which recognized several feudal rights of the barons of Runnymede. Section 39 of the Magna Carta provided that: No freeman s h a l l be captured or imprisoned or d i s -seised or outlawed or e x i l e d or i n any way destroyed^, nor w i l l we go against him or send against him except by the lawful judgment of h i s peers or by the law of the l a n d 1 1 . 7. I believe there has been no serious attempt to compare the. meaning of those two sentences. 8. See Cohen i n Minutes of Proceedings and Evidence of Special J o i n t Committee of the Senate and the House of Commons on the Constitution of Canada, F i r s t session of the thirty-second Parliament, 1980-81, p. 7:89 (November 18, 1980). 9. Stephenson and Marcham, Sources of English C o n s t i t u t i o n a l History, New York: Harper § Row, 1972, at 115. 10. See McKechnie, Magna Carta, Glasgow: J. Maclehose and Sons, 1914. 11. Stephenson and Marcham, Sources of English C o n s t i t u t i o n a l History, New York: Harper § Row, 1972, at 121. 4. This document has been reissued more than t h i r t y times. Generally the 12 authors r e f e r to the reissue of 1225 It i s d i f f i c u l t to know what the barons understood by the phrase "the law- of the land" (per legem terrae) i n section 39. However the i n t e r p r e t a t i o n given to t h i s phrase by several h i s t o r i a n s appears to be that i t included not only the procedures of the time but also the common lav (such as the good laws of Edward: the custom of the realm and the 13 feudal law! . Thus "the laws of the land" would have included not only procedural laws but also substantive laws. By the e a r l y 14th century, the phrase L'due-process;, ofi law-'.' ap-peared i n French, — process de l e y — i n a B r i t i s h l e g a l document'':'*. In 1354 i t appeared i n English f o r the f i r s t time in one of the reissues of the Magna Carta"*"^ i n place of the phrase "per legem terrae". By the end of the 14th century, t h i s due process clause was already understood as a safeguard against a r b i t r a r y acts of government. In the 17th century the Magna Carta was rediscovered. The phrase "the law of the land" was 12. E.g. Coke, Inst., Vol. I I , at 45, i n the reissue of 1225, the phrase "law of the land" passed from s. 39 to s. 29. 13. Mcllwain, "Due Process of Law i n Magna Carta" 14 Col. L. Rev. 27 (1914). See also Gray, The H i s t o r y of the Common Law of England (Published posthumously, 1713), Chicago: U n i v e r s i t y of Chicago Press, 1971, at 36. 14. See. M i l l e r , "The Forest of Due Process of Law", i n Pennock and Chapman, Due Process, New York: New York University Press, 1971, at 5. 15. 28 Edw. I l l , c. 3. See Baker, An Introduction to E n g l i s h Legal  History, London: Butterworths, 1971, at 83. 5. interpreted broadly as a guarantee that the B r i t i s h subjects had the r i g h t to l i b e r t y . In h i s Second Part of the I n s t i t u t e s of the Law of England, Coke assimilated i n t o "the law of the land" the "common law, statute law or custom of England" 1^. He s a i d that the "true sense and 17 exposition of those words" are "without due process: of law" . In 18 general the authors agree that the phrase "due process of law" was 19 interpreted as synonymous with the phrase "the law of the land" . Any-detention should not be a r b i t r a r y of unlawful and the B r i t i s h sub-20 je c t s were protected against monopoly . Therefore, i t seems that Coke interpreted the phrases "due process of law" and "law of the land" as a safeguard not only of proper procedure but also of substantive law. I w i l l b r i e f l y discuss the substantive a p p l i c a t i o n of "due process of law" to the content of the law i n England i n the second chapter. We w i l l see that t h i s conception of j u d i c i a l review ended when the courts conceded the p r i n c i p l e that Parliament was supreme. Consequently t h i s new p r i n c i p l e was a break i n the B r i t i s h t r a d i t i o n i n regard to the phrase "due process of law". 16. Coke, Inst., Vol. I I , at 46. 17. Ibid. 18. Mott, Due Process of Law, New York: Da Capo Press, 1973, at 5. 19. Coke, Inst., Vol. I I , at 50. 20. Id,, at 47. "Generally a l l monopolies are against the Great Charter, because they are against the l i b e r t y and freedom of the subject." 6. In the 17th century i n America several colonies began to entrench i n t h e i r c o n s t i t u t i o n a l documents the idea of "due process of 21 law" . The f i r s t independant state, V i r g i n i a , adopted i n June 1776 the f i r s t B i l l of Rights. Section 8 provided that "no man be deprived of his l i b e r t y , except by the law of the land or the judgment of h i s 22 peers" . The federal c o n s t i t u t i o n of the United States i n 1787 did not contain any B i l l of Rights. It created a government l i m i t e d both 23 in theory and i n p r a c t i c e . However, by the spring 1789 James Madison proposed an amendment to the American c o n s t i t u t i o n which became the F i f t h amendment i n 1791. His proposal provided that No person s h a l l be ... deprived of l i f e , l i b e r t y or property, without due process of law. Historians agree that the draftsmen of t h i s F i f t h amendment intended to 24 protect and guarantee f a i r procedure . However as we w i l l see in the t h i r d chapter, the i n t e r p r e t a t i o n of t h i s due process clause has imposed several substantive as well as procedural r e s t r i c t i o n s on the content of the law. 21. See Hazeltine, "The Influence of Magna Carta on American Constitu-t i o n a l Development" 17 Col. L. Rev. 1 (1917). 22. This section which applies only to " l i b e r t y " was adopted l a t e r by Vermont (July,1777) and Pensylvania (September, 1776). Massachus-sets (March,1780), guaranteed also the r i g h t to l i f e and property. See Mott, Due Process of Law, New York: De Capo Press, 1973, at 15. 23. We w i l l come back more s p e c i f i c a l l y on t h i s question i n the t h i r d chapter. 24. See Story, Commentaries on the Constitution of the United States, Boston: H i l l i a r d , Gray and Company, 1833, # 1783. 7. The F i f t h amendment applied only to the congress, not to the 25 states . The Americans adopted i n 1868 the Fourteenth amendment which wxmld require the states to respect "due process-of.law". In 1960, the federal government of Canada adopted the Canadian B i l l of Rights. Like the f i f t h and the Fourteenth amendments of the American c o n s t i t u t i o n , section 1(a) of the Canadian B i l l of Rights guaranteed that any federal statute s h a l l be construed and applied so as to give e f f e c t to "due process of law". The Canadian i n t e r p r e t a t i o n of t h i s phrase as we w i l l see in the fourth chapter, seems to have 2 6 r e s t r i c t e d i t s scope to procedural matters . But i t appears that the 27 idea of "substantive due process" has never been e n t i r e l y rejected We w i l l see i n the f i f t h chapter that the drafters;; of the charter of r i g h t s prefered the phrase " p r i n c i p l e s of fundamental j u s t i c e " i n order to prevent the importation i n Canada of the substantive side of "due process of law" also c a l l e d "substantive due process". They wanted to secure what i s rather c a l l e d "procedural due process". Consequently, i f t h e i r intention were recognized by the courts, henceforth a l l govern-mental conduct — p a r t i c u l a r l y l e g i s l a t i o n — which would a f f e c t the r i g h t 25. See Barron v. Baltimore^ 7 Pet. 243 (U.S. 1833). 26. See Curr v. The Queen.(1972), S.C.R. 889, at 898. However, as we w i l l see i n the fourth chapter, i t i s l i k e l y that since t h i s case, was decided the courts have interpreted the phrase "due process of law" as meaning "according to law". See e.g. M i l l e r and C o c k r i e l l v. The Queen (1977) 2 R.C.S. 680. 27. See Curr v. The Queen, i d . , at 899. 8. to l i f e , l i b e r t y and s e c u r i t y f i r s t would have to be c l a s s i f i e d as a 28 procedural or substantive act. Many times t h i s d i s t i n c t i o n w i l l be t h i n The purpose of t h i s thesis i s to suggest an i n t e r p r e t a t i o n of the phrase " p r i n c i p l e s of fundamental j u s t i c e " which f i t s into our Anglo-Canadian t r a d i t i o n of c o n s t i t u t i o n a l law. This i n t e r p r e t a t i o n should lead to the abandonment of the t r a d i t i o n a l dichotomy borrowed from the American experience with "due process of law" between "procedural" and ^substantive". Nothing i n the phrase " p r i n c i p l e s of.fundamental j u s t i c e " implies that i t should be l i m i t e d to matters of procedure only as the words "process" i n "due process of law" could have suggested. I w i l l also show that nothing i n the phrase " p r i n c i p l e s of fundamental j u s t i c e " i n i t s e l f suggests that i t means "due process of law" as interpreted by the United States, England or Canada. Consequently any attempt to interpret section 7 of the Charter i n terms of "due process of law" must n e c e s s a r i l y f a i l . I w i l l argue i n chapter s i x that the concept of "substantive due process" which has been created i n the United States where t h e i r own c o n s t i t u t i o n a l t r a d i t i o n allowed i t , i s a concept which cannot f i t i n our Canadian c o n s t i t u t i o n a l t r a d i t i o n without doing -violence to i t . Consequently, I w i l l suggest i n a l a s t chapter that those p r i n -c i p l e s of fundamental j u s t i c e " existed in the common law and that before the enactment of the charter they were generally protected through several 28. See Hogg, Canada Act 1982, Annotated, Toronto: Carswell, 1982, at 27. 9. presumptions used i n the i n t e r p r e t a t i o n of statutes. These presumptions protect p r i n c i p l e s which eould b e . c l a s s i f i e d as e i t h e r substantive or procedural. I w i l l examine a p r i n c i p l e of j u s t i c e which i s "substantive" and I w i l l show that i t i s encompassed by the phrase " p r i n c i p l e s of fun-damental j u s t i c e " . Therefore I w i l l prove that t h i s phrase contains both substantive and procedural p r i n c i p l e s and that t h i s dichotomy does not resolve anything. Under the approach suggested i n t h i s thesis the relevant question w i l l become whether a p r i n c i p l e of fundamental j u s t i c e recognized in the h i s t o r y of the common law has been v i o l a t e d by a governmental act which leads to the deprivation of an i n d i v i d u a l r i g h t to l i f e , l i b e r t y or s e c u r i t y . Consequently I w i l l suggest abandoning the dichotomy. While I w i l l examine the d i s t i n c t i o n between "procedural due process" and "substantive due process", i n the f i r s t chapter, i n order to show what the i n t e r p r e t a t i o n of "due process of law" means, I w i l i n o t examine i n d e t a i l the procedural requirements incorporated into the term " p r i n c i p l e s of fundamental j u s t i c e " . This thesis w i l l mainly deal with the concept of "substantive due process" because I want to show that the phrase " p r i n c i p l e s of fundamental j u s t i c e " also allows the courts to control the substantive content of the law but through a reasoning which i s i n accordance with the Anglo-Canadian t r a d i t i o n . 10. CHAPTER I DUE PROCESS OF LAW AND THE CONTENT OF GOVERNMENTAL ACTS The i n t e r p r e t a t i o n of the phrase "due process of law" has created two important concepts: "substantive due process" and "procedural due process?". Unfortunately they have never been c l e a r l y defined i n Canadian jurisprudence or doctrine. Though i t appears obvious that the f i r s t concept deals with substance and the second with procedure, i t i s not c l e a r at a l l how they are guaranteed and protected by the phrase "due process, of law". One i s tempted to think that the dichotomy e x i s t s i n r e l a t i o n to the governmental act c o n t r o l l e d (executive or l e g i s l a t i v e ) . Consequently "substantive due process" would deal with the substantive law and "procedural due process" with the executive acts. Therefore the f i r s t concept would allow the courts to monitor the content of the l e g i s -l a t i v e act (the law) and the second the acts of the executive. This understanding of the "due process of law" dichotomy r e f l e c t s a confusion: "substantive due process" i s seen as synonymous with the "content of the law", and "procedural due process" as synonymous with "according to law" i n the B r i t i s h sense. The goal of t h i s f i r s t chapter i s to make i t c l e a r that the power of the courts to review the law i s an independant question from the one which defines the content of the same law (which can be e i t h e r "procedural" or "substantive"). Recently, the Court of Appeal of B r i t i s h Columbia gave an example of t h i s confusion i n the Motor Vehicle Act Reference. In t h i s case, what was: at stake was the r i g h t of a morally innocent person not to be 29 deprived of h i s l i b e r t y . The amended Motor Vehicle Act created an "abs.olute l i a b i l i t y " offense f o r any.person who drove a motor v e h i c l e while he was prohib i t e d from d r i v i n g or while h i s driver's licence was 30 suspended . This type of offense was defined by Mr. J u s t i c e Dickson i n 31 the case of R. v. C i t y of Sault Ste-Marie : Absolute l i a b i l i t y e n t a i l s conviction on proof merely that the defendant committed the prohib i t e d act con-s t i t u t i n g the actus reus of the offense. There i s no relevant mental element. I t i s no defense that the accused was e n t i r e l y without f a u l t . He may be morally innocent i n every sense, yet be branded as a malefac-tor and punished as such. 29. This expression w i l l r e f e r to the Motor Vehicle Act, R.S.B.C. 1979, c. 288, as amended by the Motor Vehicle Amendment Act, S.B.C. 1982, c. 36. 30. Section 94 provided: 94 (1) A person who drives a motor vehi c l e on a highway or indus-t r i a l road while (a) he i s p r o h i b i t e d from d r i v i n g a motor vehi c l e under section 90, 91, 92 or 92.1, or (b) his dr i v e r ' s licence or h i s r i g h t to apply f o r or obtain a driver's licence i s suspended under section 82 or 92 as i t was before i t s repeal and replacement came into force pursuant to the Motor Vehicle Amendment Act, 1982 com-mits an offense and i s l i a b l e . (c) on a f i r s t conviction, to a fin e of not less than $300 and not more than $2,000 and to imprisonment f o r not less than 7 days and not more than 6 months, and... (2) Subsection (1) creates an absolute l i a b i l i t y offense i n which g u i l t i s established'by proof of d r i v i n g , whether or not the defendant knew of the p r o h i b i t i o n or suspension. 31. (1978) 2 S.C.R. 1299. Therefore g u i l t was established by- the mere proof of d r i v i n g . The de-fendant's; knowledge or lack of knowledge of the p r o h i b i t i o n or suspen-sion was i r r e l e v a n t . No defense of reasonable mistake of f a c t or of reasonable care was admissible. The penalty was a mandatory term of imprisonment f o r not less than seven days upon a f i r s t conviction. One of the issues was whether the phrase " p r i n c i p l e s of funda-32 mental j u s t i c e " was l i m i t e d to matters of procedure only . The Court 33 of Appeal, having considered the Canadian cases concerning the i n t e r -pretation given to the concept "substantive due process", held that: The meaning to be given to the phrase " p r i n c i p l e s of fundamental j u s t i c e " i s that i t i s not r e s t r i c t e d to matters of procedure but extends to substantive law and that the courts are therefore c a l l e d upon, i n construing the provisions of s. 7 of the Charter, to have regard to the content of l e g i s l a t i o n ^ . Therefore the Court of Appeal has assumed that the concept of "substan-t i v e due process" i s synonymous with the content of the law i t s e l f . This confusion i s even more obvious when the court deals with the argu-ment of the Attorney General who pleaded that the phrase "principles, of fundamental j u s t i c e " of section 7 of the Charter should mean " p r i n c i p l e s 35 of natural j u s t i c e " . The court rejected t h i s argument, using section 32. The Attorney General contended that s.7 should be equated with the p r i n c i p l e s of natural j u s t i c e . The Motor Vehicle Act Reference, at 3 - 4. •33. E.g., Curr v. £ (1972) S.C.R. 889, Morgentaler v. {1976) 1 S.CYR. 616. 34. The Motor Vehicle Act Referencej at 11. 35. Td., at 3 - 4. 52 of the Charter which, declares that any law inconsistent with the Charter must be declared of no force and e f f e c t : Upon t h i s view of the matter the e f f e c t of s. 7 i s to enshrine i n the Constitution the p r i n c i p l e s of natural j u s t i c e . That i s c e r t a i n l y one view of the matter. It does not, however, give any e f f e c t to s. 52 of the Constitution Act which can be viewed as e f f e c t i n g a fundamental change i n the role of the courts. The B i l l of Rights allowed the courts to test the content of federal l e g i s l a t i o n , but because the B i l l was merely a statute, i t s e f f e c -tiveness was hampered by the equally persuasive "presumption of v a l i d i t y " of federal l e g i s l a t i o n . The Constitution Act, i n our opinion, has added a new dimension to the r o l e of the courts; the courts have been given c o n s t i t u t i o n a l j u r i s d i c t i o n to look at not only the v i r e s of the l e g i s l a t i o n and whether the procedural safeguards required by natural j u s -t i c e are present but to go further and consider the content of the l e g i s l a t i o n . In Curr v. The 'Queen, Laskin J. alluded to t h i s c o n s i d e r a t i o n - ^ For the judges, thus, i f the " p r i n c i p l e s of iEundamental j u s t i c e " guar-anteed procedures only, such as the p r i n c i p l e s of natural j u s t i c e , the courts could never review the content of the law. Therefore section 7 had to be substantive i f the court asserted the power to review the content of the law. This confusion i s based on the i n t e r p r e t a t i o n given i n England, to the phrase "due process of law".. I t should be noted that we have to go back as f a r as Dicey to understand the B r i t i s h contemporary i n t e r -p retation of that phrase because today there i s no r e a l attempt to define _ T , V . 37 t h i s expression 36, Id.^Iat 4._>i.; - I ' ' . •• " ; -37. See Marshall; ;'"Due Process in.England",:in_ Perinock and Chapman, 'Pile' 'Process ;v New. York:" New-York'University Press, 1977, at 69. 14. Dicey wrote that "due process- of law" — he wrote due course of law-—meant that a.person cannot be imprisonned except under some l e g a l warrant.on authority, and, what i s of f a r more consequence, i t i s secured by the pro-v i s i o n of adequate l e g a l means f o r the enforcement of t h i s p r i n c i p l e - ^ . Consequently, whoever i n t e r f e r e s with the i n d i v i d u a l ' s r i g h t to l i b e r t y must act in accordance with the law. The r i g h t to l i b e r t y was defined as meaning In substance a person's r i g h t not to be subjected to imprisonment, arrest or other p h y s i c a l coercion i n any manner that does not admit of l e g a l j u s t i f i c a t i o n - ^ . In this- sense we can say that "due process of law" i n England requires that the executive act "according to law". The courts could never review l e g i s l a t i v e action because the only requirement of "due process of law" was- p r e c i s e l y that there be authorizing l e g i s l a t i o n enacted by Parliament Before the entrenchement of the Charter of Rights i n the c o n s t i -t u t i o n and before the Canadian B i l l of Rights (1960), Canada shared with 38. Dicey, Introduction to the Study of the Law of the Constitution (9th ed.), London: MacMillan, 1948, at 208. 39. Ibid. 40. Tarnopolsky s a i d that " t h i s means, then, that Parliament may pass any law, however unreasonable, to deprive an i n d i v i d u a l of h i s l i f e , l i b e r t y or property. The only r e s t r i c t i o n or protection which the clause would provide i s that an i n d i v i d u a l could not be deprived of these, r i g h t s except by a p r e - e x i s t i n g law." The Canadian B i l l of  Rights, McClelland and Stewart Ltd., 1975, at 223. The pr e - e x i s t i n g law can deprive an i n d i v i d u a l of fundamental "procedural" standards such as habeas corpus or as f a i r hearing. 15. England t h i s "narrow"'*'1 scope of "due process of law". For example i n 42 Curr v. The Queen Mr. J u s t i c e R i t c h i e s a i d i n h i s dissent that the meaning to be given to "due process of law" i s the meaning which i t bore i n Canada at the time when the B i l l was enacted, and i t follows that, i n my- opinion, the phrase "due process of law" as used i n s. 1(a) i s to be construed as meaning according to the leg a l processes recognized by Parliament and the courts i n Canada^. It does not follow that the courts cannot monitor any governmental acts. The requirement that any executive act must be done "according to law" implies: that the courts have a power to review these acts. It i s a mere consequence of the fundamental c o n s t i t u t i o n a l p r i n c i p l e s of the "rule of 44 45 law" and of the "supremacy of Parliament" . Parliament is.free..to 46 "make or unmake any law whatever" and no person or body i s allowed i n law to override the l e g i s l a t i o n of Parliament. The law i s supreme and the r u l e r s as well as the governed should be subject to i t . Neither the 41. Id.; at 223. 42. (1972) S.C.R. 889. 43. Id., at 916. That d e f i n i t i o n was expressly rejected by the majo-r i t y of the judges i n t h i s case because i t would have meant that i t was declaratory only. Id., at 897. However, i t i s l i k e l y that t h i s "according to law-due process" l a t e r reached a majority of the judges. See M i l l e r and C o c k r i e l l v. The Queen (1977) 2 S.C.R. 425. 44. Dicey, Introduction to the Study of the Law of the Constitution (9th ed.), London: MacMillan, 1948. 45. Ibid. 46. Id., at 40. 16. executive nor the j u d i c i a r y can deny the force of law t o any s t a t u t e enacted by Parliament. Therefore j u d i c i a l review of l e g i s l a t i o n i n England i s impossible because of i t s c o n s t i t u t i o n a l - l a w p r i n c i p l e s . I t would be wrong to e x t r a p o l a t e from what I have j u s t s a i d that the content of the law i s n e c e s s a r i l l y substantive and that the executive a c t s n e c e s s a r i l l y deal w i t h procedures only. In f a c t j u d i c i a l review of any governmental act — l e g i s l a t i v e or executive — may always deal w i t h 47 substantive as w e l l as procedural matters. In Sutt v. Sutt , Mr. J u s t i c e Schroeder t r i e d to d i s t i n g u i s h , between the " s u b s t a n t i v e " and "procedural" matters. He s a i d : I t i s v i t a l l y important to keep i n mind the e s s e n t i a l d i s t i n c t i o n between substantive and procedural law.. Substantive law creates r i g h t s and o b l i g a t i o n s and i s concerned w i t h the ends which the a d m i n i s t r a t i o n of j u s t i c e seeks to a t t a i n , whereas procedural law i s the v e h i c l e p r o v i d i n g the means and instruments by which those ends are a t t a i n e d . I t regulates the con-duct of Courts and l i t i g a n t s i n respect of the l i t i -g a t ion i t s e l f whereas substantive law determines t h e i r conduct and r e l a t i o n s i n respect of the matters l i t i -g a t e d 4 8 . indeed i n general we can say that a review of the "substance" allows the courts to review the content of the law because i t i s gene e r a l l y through the law t h a t the s t a t e creates r i g h t s and o b l i g a t i o n s and t h a t a review of the "procedure" allows the courts to c o n t r o l the executive acts because i t i s g e n e r a l l y the executive agents who deal 47. (1969) 1 O.R. 169. 48. I d . , at 175. with, the a p p l i c a t i o n of the law. However both l e g i s l a t i v e and executive acts can be substantive or procedural. In the United States the review of the "substance" of a govern-mental act under "due process of law" i s c a l l e d "substantive due process" and the review of the "procedure" i s c a l l e d "procedural due process". It does not matter however whether a country such as England c a l l s i t otherwise. The question i s whether or not the courts are allowed to look, at the "substantive" governmental acts beyond i t s power to monitor the procedures. "Substantive due process" guarantees that the i n d i v i d u a l s have r i g h t to a minimum of fair n e s s in the "substantive" governmental acts which i n t e r f e r e with the fundamental protected r i g h t s (such as l i b e r t y ) . The courts: c a l l e d upon to control a governmental act under t h i s concept look at the a r b i t r a r i n e s s and unreasonableness of the substantive mea-sure . In the United States j u d i c i a l review of a "substantive" measure is; mainly i l l u s t r a t e d i n the control of the content of the law. The U.S. c o n s t i t u t i o n provides that no person s h a l l be deprived of l i f e , 49 l i b e r t y or property "without due process of law" . In the case Gri s -wold y. C o n n e c t i c u t ^ the court struck down a law which prohib i t e d the use of contraceptives by both married and si n g l e persons because i t 49. See U.S. Const, amend. V and XIV. 50. 381 U.S. 479 (1965), 18. unnecessarily i n f r i n g e d t h e i r fundamental " r i g h t to privacy". This was not a procedural matter; the court looked at the "substantive" content of the la w 5 1 . "Substantive" review of governmental acts are not li m i t e d to the review of the law. The court can review the substantive executive action. 52 for example i n the United States i n 0'Connor v. Donaldson , Donaldson was: kept i n custody i n a State Hospital f o r mental patients. He received no treatment f o r h i s supposed i l l n e s s . The h o s p i t a l s t a f f had the power to release a patient who was not dangerous to himself or others. Donald-son was not dangerous. The Supreme Court of the United States reversed the decision of the superintendent of the Hospital who had decided to keep the mental patient i n custody. The Court held that a state (through i t s agents) has no r i g h t to lock a person up "against h i s w i l l i f he i s dangerous to no one and can l i v e s a f e l y i n freedom". Consequently the substantive content of the governmental action was. reversed. The question was not whether the procedures were " f a i r " but whether the decision of the superintendent to keep the patient i n the h o s p i t a l was " f a i r " i n the circumstances. Executive action, thus, as. much as l e g i s l a t i v e action, may be defined within the "procedural" and "substantive" dichotomy. We have seen that i n England, the p r i n c i p l e of the supremacy of Parliament prevents any review of the content of the law.. On the other 51. We w i l l come back to t h i s case i n the t h i r d chapter. 52. 422 U.S. 563 (1975). 19. hand the r u l e of law allows the courts to control executive acts. Therefore, i n Anglo-Canadian jurisprudence, we can f i n d the court con-t r o l l i n g "substantive" executive acts. A well known example i s found i n 53 Canada before 1960 i n R o n c a r e l l i v. Puplessis . In that case the Alco-h o l i c ILiquor Act provided that "the (Quebec Liquor) commission may refuse to grant any permit". Premier Duplessis had ordered the cancel-l a t i o n of the restaurant keeper Roncarelli's l i q u o r permit because he was a Jehovah witness. He pleaded that the commission had f u l l d i s c r e -t i o n . Mr. Just i c e Rand refused to read absolute d i s c r e t i o n within the act and s a i d : TO deny or revoke a permit because a c i t i z e n exercices an -unchallengeable r i g h t t o t a l l y i r r e l e v a n t to the sale of liquor i n a restaurant i s equally beyond the scope of the d i s c r e t i o n conferred^ 4. On the other hand "procedural due process" guarantees that the persons have the r i g h t to a minimum of fairness i n the 'procedural" content of the governmental acts which i n t e r f e r e with fundamental r i g h t s . When the courts control whether a governmental act i s i n accordance with the "procedural due process" standards they decide whether the procedures imposed by the law or adopted by the executive are or have been " f a i r " . I t i s not true that "proceduraldduepparocess'Vis- limited_ tovthe* review of the executive act. 53. (1959) S.C.R. 121. 54. Id., at 140. Another example i s found i n the case B e l l v. The Queen (1979) 2 S.C.R. 212, where a by-law r e s t r i c t i n g apartments~to a singl e person or family was defined i n such a way that people not married or not blood r e l a t i v e s could not occupy the apartments. The by-law was declared u l t r a v i r e s because of i t s unreasonability. See also Kruze v. Johnson (1898) 2 Q.B. 91., 20. Under "procedural due process" i n the United States the courts can review the content of the law. Consider the example of Fuentes v. S h e v i n 5 5 : the Supreme Court of the United States h e l d as u n c o n s t i t u t i o n a l two s t a t e laws p e r m i t t i n g c o n d i t i o n a l s a l e s contracts which "simply pro-vided t h a t upon d e f a u l t the seller."may take back", "may r e t a k e " or "may repossess" merchandise. I t was r u l e d that before a person could be deprived of h i s p r o p e r t y , there must be n o t i f i c a t i o n and.a hearing at a "meaningful time" and i n a "meaningful manner". The j u d i c i a l re-v i e w i n t h i s case was r e l a t e d to the "procedural" content of the l e g i s -l a t i o n : the r i g h t to a f a i r hearing. Again i t should be remembered that i n England the courts cannot review the " p r o c e d u r a l " content of the law because Parliament i s supreme. However the r u l e of law r e q u i r e s that other governmental agencies act "according t o law". In the context of "procedural due process" — or any concept which r e f l e c t s t h i s i d e a — the jurisprudence has shown c l e a r l y t h a t the word law as used i n the expression "according t o law" r e f e r s to unwritten as w e l l as w r i t t e n r u l e s o f procedures. This view has been i l l u s t r a t e d i n a House-of-Lords d e c i s i o n i n Ong Ah Chean v. P u b l i c  Prosecutor ( P . C . ) 5 6 . The Court had to i n t e r p r e t the phrase "according to law" i n the Singapore c o n s t i t u t i o n . In a c o n s t i t u t i o n founded on the Westminster model and p a r t i c u l a r l y i n that p a r t of i t that purports to assure to a l l i n d i v i d u a l c i t i z e n s the continued 55. 407 U.S. 67 (1972). 56. (1981) A.C. 648. enjoyment of fundamental l i b e r t i e s or r i g h t s , r e f ^ erences to "law" i n such contexts as " i n accordance with law", " e q u a l i t y before the law", "protection of the law" and the l i k e , i n t h e i r Lordships' view, r e f e r to a system of law which incorporates those fundamental rules of natural j u s t i c e that had formed part and p a r c e l of the common law of England that was i n operation in.Singapore at the commencement of the Constitution** 7. Indeed the House had to int e r p r e t t h i s phrase written i n a c o n s t i t u t i o -n a l document. Therefore the Parliament was also bound. But, i n s o f a r as the. phrase "according to law" i s not found i n such a document, the other agents of the state i(who could be expressly exempt from respecting the principles, of natural j u s t i c e by act of Parliament) are bound to respect the p r i n c i p l e s of natural j u s t i c e unless Parliament expressly enacts such an exemption. In short, the question whether the court can review the content of the law i s completely d i f f e r e n t from the question whether i t can review i t s substantive content. The f i r s t question must be answered i n the l i g h t of the c o n s t i t u t i o n a l law of the country. In the United States the courts can review the content of the law — whether procedural or substantive — because of the co n s t i t u t i o n which binds both the l e g i s - ' latures and the government. In England however, the supremacy of Par-liament prevents such control. The second question deals with the scope to be given to the protection i t s e l f (to e i t h e r "due process of law" or 57. Id., at 670. ±It«-should be' noted.bthattthetconstitutional' 1 status of the*:document^re4'uiritng. l.'aceordi-p.'gf'to l-awl^ a Plowed: the "court to c.on-t r o l t also >-the procedural content- >of the '.law.' 'Id. , 'at "671. 22. p r i n c i p l e s of fundamental j u s t i c e ) . Does i t include procedural safe-guard only or does i t guarantee minimal substantive standards also? In 1960, Canada adopted the Canadian B i l l of Rights. The c o n s t i -5 8 t u t i o n a l status of th i s document had been established i n R_. v. Drybones The court held that section 2 of the B i l l of Rights indicated that every fed e r a l law- inconsistent with the Canadian B i l l of Rights should be declared inoperative. It found the cle a r e s t i n d i c a t i o n that s. 2 i s intended to mean and does mean that i f a law of Canada cannot be "sensibly construed and applied" so that i t does not abrogate, abridge or i n f r i n g e one of the rights and freedoms recognized and declared by the B i l l , then such, law i s inoperative . Consequently the Canadian B i l l of Rights (1960) was more than a mere ru l e of i n t e r p r e t a t i o n . It had the e f f e c t of overriding inconsis-tent federal statutes. It sounds a b i t l i k e a c o n s t i t u t i o n which allows the courts to monitor the content of the law. Drybones's case dealt with a question which i s i n essence a c o n s t i t u t i o n a l one. The second question deals with the content of the phrase "due process of law" i n Canada. That point was discussed i n Curr v. The Queen^. The appellant challenged sections 223 and 224(a-3) (now subsec-tions 237(1)(a), (b) and (c)) of the Criminal Code which provided t h a t . 58. (1970) S.C.R. 282. 59. i d . , at 294. 6Q. (1972) S.C.R. 889. the r e f u s a l or f a i l u r e of an accused to submit to a b r e a t h a l i z e r t e s t maybe admitted i n evidence against him. The Court was asked to i n t e r -pret the phrase "due process of law" i n section 1(a) of the Canadian B i l l of Rights (1960)^* as going beyond the Engl i s h antecedents and to view i t in the same terms- as those i n which the United States had interpreted 62 i t . Therefore the due process dichotomy discussed i n Curr had"to be understood i n the l i g h t of the American i n t e r p r e t a t i o n . Mr. Just i c e Laskin, speaking f o r the majority,.said that i n th i s case, What i t amounted to was an i n v i t a t i o n to t h i s Court to monitor the substantive content of l e g i s l a t i o n by reference to s. 1 ( a ) 6 3 . That issue dealt with the "substantive due process" side of "due process of law". "Substantive content of l e g i s l a t i o n " must be seen as contrast-ing with "procedural content of l e g i s l a t i o n " . Otherwise the expression is- redundant. 61. Section 1(a) of the Canadian B i l l of Rights (1960) provides that 1- It i s hereby recognized and declared that i n Canada there havec existed and s h a l l continue to e x i s t without d i s c r i m i n a t i o n . . . (a) The r i g h t of the i n d i v i d u a l to l i f e , l i b e r t y , s e c u r i t y of the person and the enjoyment of property, and the r i g h t not to be deprived thereof except by due process of law. 62. (19.72) S.C.R. 889, at 897. 63. Ibid. Emphasis added. See also Morgantaler v. The Queen (1976) 1 S.C.R. 616, at 632-633. The Court of Appeal quoted that passage from Morgentaler i n Motor Vehicle Act Reference. However, they seem to have confused the expression "substantive due process" with the "content of the l e g i s l a t i o n " i t s e l f . 24. Mr. Ju s t i c e Laskin stated f i r s t that t r a d i t i o n a l l y the phrase 64 "due process of law" i n England pointed to procedural considerations Therefore section 1(a) of the Canadian B i l l of Rights (1960) would allow the courts to review the "procedural" content of the l e g i s l a t i o n (beyond i.ts t r a d i t i o n a l power to review executive act) . In Curr Mr. J u s t i c e Laskin s a i d that: It i s evident from s. 2 of the Canadian B i l l of Rights that i t s s p e c i f i c a t i o n of p a r t i c u l a r proce-dural r e s t r i c t i o n s i s without l i m i t a t i o n of any others that may have source i n s. 1^5. However, while s. 1(a) can safeguard procedures not included i n s. 2, he said: I am unable to appreciate what more can be read i n s-. 1(a) from a procedural standpoint than i s already comprehended by s. 2(e) ("a f a i r hearing i n accord-ance with the p r i n c i p l e s of fundamental j u s t i c e " ) and by s. 2(f) ("a f a i r and p u b l i c hearing by an independent and i m p a r t i a l t r i b u n a l " ) 6 6 . The procedures make one think of the p r i n c i p l e s of "natural j u s t i c e " . 64. I t should be noted that Mr. J u s t i c e Laskin gave no authority to support t h i s a f f i r m a t i o n . On the contrary he quoted Mcllwain i n "Due Process of Law i n Magna Carta", 14 Col. L. Rev. 27 (1914) who gave a broader i n t e r p r e t a t i o n to the phrase "due process of law" i n England Beyond i t s procedural content. However, th i s view of Mr. J u s t i c e Laskin i s more understandable i n the l i g h t of the f a c t that the B r i t i s h courts never r e f e r to the phrase "due process of law" when they control the substantive content of a governmental act other than l e g i s l a t i v e . 65. (1972) S.C.R. 889, at 898.. 66. Ibid. The Court was, therefore, allowed to look at the content of the l e g i s l a -t i o n i n order to decide i f i t s "procedural" content was'consistent with the B i l l of Rights (either s. 1(a), or 2 ( f ) ) . Mr. Ju s t i c e Laskin moni-f\ 7 tored the procedural content of s. 223(1) (now 235(1)) . He said: Ih so f a r as s. 223, and e s p e c i a l l y s. 223(1), may be regarded as a procedural a i d to the enforcement of the substantive offense created by s. 222, I do not f i n d i t obnoxious to s. 1(a) of the Canadian B i l l of R i g h t s 6 8 . Thus, section 223 was operative because the Supreme Court did not f i n d that the procedural content of the federal l e g i s l a t i o n offended the minimal standard safeguarded i n s. 1(a) of the B i l l of Rights. I f i t had found otherwise, I beli e v e that s. 223 of the Criminal Code would have been declared inoperative. At the very l e a s t section 1(a) of the Canadian B i l l of Rights (1960) would have e n t i t l e d the courts to review the procedural content of the law. That p r i n c i p l e was an ap p l i c a t i o n of 69 the case R_. v. Drybones . Consider t h i s example. Section 459.1 of the Criminal Code ex-cludes proceedings i n habeas corpus r e l a t i n g to "interim release or f o r 67. S. 223(1) provided: "Where a peace o f f i c e r on reasonable and pro-bable grounds believes that a person i s committing or at anytime within the preceding two hours has committed, an offense under section 222, he may, by demand made to that person, forthwith or as soon as p r a c t i c a b l e , require him to provide then or as soon t thereafter as i s pr a c t i c a b l e a sample of his breath suitable to enable an analysis to be made i n order to determine the proportion, i f any, of alcohol i n h i s blood, and to accompany the peace o f f i c e r f o r the purpose of enabling such a sample to be taken." 68. (1972) S.C.R. 889, at 898. 69.. (1970) S.C.R. 282. 26. the purpose of reviewing or varying any decision ... r e l a t i n g to interim 70 release or detention". In Ex Parte M i t c h e l l the Court of Appeal of B r i t i s h Columbia held that t h i s section of the Code was i n d i r e c t con-f l i c t with section 2 ( c ) ( i i i ) of the Canadian B i l l of Rights which pro-vides that the B i l l should not be construed or applied so as to deprive a person who i s detained or arrested of a "remedy by way of habeas corpus". 71 Consequently section 459.1 was declared inoperative . This decision was 72 a d i r e c t a p p l i c a t i o n of the r u l i n g i n Drybones though the issue dealt with a matter of "procedure" (the writ of habeas corpus i s a procedural device which allows the Court to inquire into the cause of a person's 73 detention) . Thus, i t i s impossible to maintain that under the Canadian B i l l of Rights a procedural r i g h t safeguarded i n section 1(a) gives no e f f e c t to the power recognized i n Drybones} to declare laws inoperative. 70. (1975) 23 C.C.C: (2d) 473 (B.C.C.A.). 71. Before the B i l l of Rights, such a clear i n t e n t i o n of Parliament would have been held. See Shin Shim v. The King (1938) S.C.R. 378, 384. 72. Such a conclusion was a l o g i c a l consequence of R_. v. Drybones be-cause i t was expressly held that the B i l l of Rights was more than a mere statute of i n t e r p r e t a t i o n . The court expressly r e f e r r e d to that case. See also Ex parte Clarke (No. 1); Ex parte White (1978), 41 C.C.C. (2d) 511 (Nfld.T.D.). 73. The habeas corpus i s a mechanism of the j u d i c i a l system to provide "an avenue to v i n d i c a t e substantive r i g h t s " . Decker, • •. A C o n s t i t u t i o n a l H i s t o r y of Habeas Corpus, London: Greenwood Press, 1980, at 3. The substantive r i g h t which i s at stake i s " l i b e r t y " . The writ i s a l e g a l process to secure i t . It i s a "procedural" r i g h t . In a lecture given at the U n i v e r s i t y of Manitoba, Chief J u s t i c e Laskin said, " I t i s no accident that the growth of l i b e r t y depended on procedural guarantees such as the writ of Habeas Corpus". (1972) 5 Man.L.J. 235, at 237. In short, i t i s wrong to believe that the content of the law i s synonymous with the "substantive" side of "due process of law" and that "procedural due process" would not allow the courts to control the content of the law. Every governmental act (executive or l e g i s l a t i v e ) may sometimes be procedural and sometimes substantive. Therefore the phrase "due process of law" and any other phrase which secures procedures only can give e f f e c t to the power of the court to review the content of the l e g i s l a t i o n . This power w i l l be determined by the c o n s t i t u t i o n a l status of the r i g h t and, whether or not a court:can override l e g i s l a t i o n . The same l o g i c should apply to the Charter of Rights. The phrase " p r i n c i p l e s of fundamental j u s t i c e " can deal with procedural matters only and s t i l l give e f f e c t to section 52 which allows the j u d i c i a l review of the content of the l e g i s l a t i o n . Under the Charter section 52 plays a r o l e s i m i l a r to that which Drybones a t t r i b u t e d to the opening words of 74' s. 2 of the Canadian B i l l of Rights . It allows a j u d i c i a l review of the content of the law. This content can be "procedural" or "substantive" The scope of the review of the "substantive" content or of the "procedural content depends on the scope of the phrase " p r i n c i p l e s of fundamental j u s t i c e " i t s e l f . . In the Motor Vehicle Act Reference, therefore, the decision was bas,ed upon.a wrong premise. The judges had assumed that the creation of an offense by statute and the express declaration that i t i s included i n the category "absolute l i a b i l i t y " was not a question of procedure because 74. See, supra, note 2. 28. i f i t was: so, section 52 would receive no e f f e c t . We j u s t saw that the phrase " p r i n c i p l e s of fundamental j u s t i c e " or "due process of law" could have secured procedures only and s t i l l given e f f e c t to section 52 as f a r as the court could have reviewed the procedural content of the law. The "due process of law" l i m i t a t i o n (such as i t i s with section 7 of the Charter) asks f o r two independent questions: F i r s t the court must s p e c i f y whom it., l i m i t s . The answer to t h i s question i s given i n r e l a t i o n to c o n s t i t u t i o n a l law. Secondly the court must define what i s guaranteed by t h i s phrase. What i s i t s content? Procedural standards only or also several substantive standards? I w i l l l a t e r present an a l t e r n a t i v e j u s t i f i c a t i o n f o r the r e s u l t i n the Motor Vehicle Act Reference which held that the phrase " p r i n c i p l e s of fundamental j u s t i c e " i s not l i m i t e d to procedural matters but allows the Courts to look at the substantive content of the law. 29. CHAPTER II JUDICIAL REVIEW OF THE SUBSTANTIVE CONTENT OF THE LAW IN ENGLAND In our preceeding discussion about "according to law", we des scribe the actual understanding of "due process of law" i n England. It i s c l e a r that t h i s generally deals with procedural safeguards against the agents of the government other than Parliament. However according to several l e g a l h i s t o r i a n s , i t i s quite l i k e l y that, h i s t o r i c a l l y , the B r i t i s h courts c o n t r o l l e d from time to time not merely the content of an act of parliament but i t s "substantive" content. When the doctrine of Supremacy of Parliament became established at common law, the court ended j u d i c i a l review of the l e g i s l a t i o n . . But t h i s theory 7 5 i s not unanimously accepted . Even when the court claimed the legitimacy of j u d i c i a l review, i t would appear that i t was not generally accepted 76 among the judges . It i s not the purpose of t h i s chapter to favour t h i s theory. However i t i s necessary to see b r i e f l y what the theory i s i n order to understand why Canada has been reluctant to adopt the concept of "substantive due process". 75. See McKechnle, Magna Carta, Glasgow: J . Maclehose and Sons, 1914. 76. Baker, An Introduction to English Legal History, London: Butter-worths, • 1979, at 182. 30. a) Supremacy of the Common Law The.main argument i n favour o f t h i s t h e s i s i s t h a t before the Tudor and the Stuart r e i g n s , there was no c l e a r d i s t i n c t i o n between the d i f f e r e n t governmental powers — ex e c u t i v e , l e g i s l a t i v e and j u d i c i a l . Consequently the King's acts could be seen e i t h e r as executive or l e g i s -77 l a t i v e . The personal orders of the Kings were considered as a c t s of 78 Parliament . Moreover, the Parliament i t s e l f was not regarded as a l e g i s l a t u r e : "Parliament must have been thought o f f i r s t as a court 79 r a t h e r than as a l e g i s l a t u r e " As long as the King and the courts were bound by the p r o v i s i o n o f the Magna Carta, i t i s l i k e l y t h a t the a c t s o f Parliament were a l s o bound to respect t h i s document. For instance i t i s c l e a r t h a t the court must act i n accordance w i t h Magna C a r t a . In 1297,.in one of i t s t h i r t y c onfirmations i t was provided t h a t : Zf any.judgment i s hencef o r t h rendered contrary to the p a r t i c u l a r s : of the Charters a f o r e s a i d by our j u s t i c e s , or by our other m i n i s t e r s before whom pl e a s are h e l d contrary to the p a r t i c u l a r s o f the Charters i t s h a l l be n u l l and v o i d 8 ^ . 77. See Vinogradoff, "Magna Ca r t a , chapter 39" i n The C o l l e c t e d Papers  o f Paul -Vinogradoff, Oxford: At The Clarendon Press, 1928. 78. See e.g. Statute of Proclamations (1539) 31 Hen. V I I I , c. 8.where the proclamations made by The King " s h a l l be obeyed, observed, and kept as though they were made by act of parliament". 79. M c l l w a i n , The High.Court of Parliament, New Haven: Yale U n i v e r s i t y P r e s s , 1910, at 110. 80. Stephenson and Marcham, Sources o f E n g l i s h C o n s t i t u t i o n a l H i s t o r y , New York: Harper £ Row, 1972, at 164. 31. Therefore, the parliament was bound to t h i s charter because i t was the higher court of England. To conclude otherwise would be to forget the confusion between the d i f f e r e n t functions of government which existed i n medieval time. Moreover, Parliament i t s e l f had l i m i t e d i t s power i n a way which would suggest a c o n s t i t u t i o n a l or a q u a s i - c o n s t i t u t i o n a l document. In 1368, a law was enacted providing that any statutes passed contrary to Magna Carta -must be void: It i s assented and accorded that the great charter ... be holden and kept i n a l l points; and i f any statute be made to the contrary, that s h a l l be holden f o r none^l. Meanwhile a convention that the enactment of statues was a mat-82 t e r f o r parliament became more and more established Therefore, Parliament was bound to respect section 39 of Magna Carta. This charter was regarded as a fundamental law though i t i s u n l i k e l y that the lawyers yet talked of " c o n s t i t u t i o n " . But by the time of the Tudors and the Stuarts, j u d i c i a l review of l e g i s l a t i o n under the authority of fundamental law was at i t s height. 81. 42 Edw. I l l c. 1. I t would be i n t e r e s t i n g to study t h i s statute i n p a r a l l e l with a c o n s t i t u t i o n a l document (such as the C o n s t i t u t i o n Act', 1982) and with a q u a s i - c o n s t i t u t i o n a l document (such as the Canadian B i l l of Rights). 82. This convention was c l e a r l y established i n 1327 though i t was not binding upon the King. See Sayles, The King's Parliament of  England, New York: W.W. Norton $ Company Inc., 1974, at 116. 32. The theory was based upon the conception of natural r i g h t and natural law. The lawyers linked together, law of nature, common r i g h t and 83 reason, and common law . The Magna Carta i t s e l f was also fundamental 84 because i t s content was interpreted as such Coke wrote i n h i s I n s t i t u t e s that the Magna Carta was f o r the most part declaratory of the p r i n c i p a l grounds of the fundamental laws of England, and f o r the residue i t i s add i t i o n a l to supply some defects of the common law. We can f i n d i n many d i c t a of decisions of that period, t h i s idea 86 of " j u d i c i a l review" over the l e g i s l a t i o n . For example in,the famous 87 Dr. Bonham's Case (1610) Lord Coke had to decide whether the College of Physicians could impose a f i n e on the doctors p r a c t i c i n g outside of London. He said : When an act of Parliament i s against common r i g h t and reason, or repugnant, or impossible to be performed, the Common Law w i l l control i t , and adjudge such act to be v o i d 8 8 . 83. McTlwain, The High Court of Parliament, New Haven: Yale University-Press, 1910, ch. II. 84. Mott, Due Process, of Law, New York: Da Capo Press, 1973, at 45. 85. Inst,:-, .voir. T/I ,pih:-i'M"pr.oeme". 86. Mcllwain, High Court of Parliament, New Haven: Yale U n i v e r s i t y Press, 1910,at 262-298; P h i l l i p s , C o n s t i t u t i o n a l and Administrative Law, London: Sweet § Maxwell, 1978, at 49 - 50. Mott, Due Process  o f Law, New York: Da Capo Press, 1973, at 48. 87. 8 Co. Rep. 114. 88. Id., at 118. 33. 89 Though, many authors interpreted the d i c t a as rules of construction instead of affirmations of the supremacy of the common law, i t i s not wrong to say that these d i c t a suggest the j u d i c i a l review of the l e g i s -l a t i o n . Tt seems therefore that the common law was regarded as a fun-90 damental law . Therefore, the phrase "law of the land" or "due process 91 of law" — as then equated — was,a part of the fundamental law which could control the content of the statutes. However that phrase could not. have allowed review of the "substantive" content of the law unless i t received a broad meaning beyond i t s proce-. dural content. And i t appears that even at the time of King John i n 1215, the phrase "law of the land" would have been understood i n ce r t a i n contexts as the common law, which included the good laws of Edward, the 92 custom of the realm and the feudal law Consequently, the "substantive" content of the statutes could 93 not deprive the subject of his rights e i t h e r to his person or his goods 89. See e.g. Gough, Fundamental Law i n English C o n s t i t u t i o n a l History, Oxford: At The Clarendon Press, 1961, at 35; P h i l l i p s , Constitu-t i o n a l and Administrative Law, London: Sweet & Maxwell, 1978, at 50. 90. See Keir and LawsOn, Cases i n Co n s t i t u t i o n a l Law, Oxford: At The Clarendon Press, 1967, ch. I. 91. Coke, Inst; , vo;l?"TI, at 50. 92. Mdlwain, "Due Process of Law i n Magna Carta", 14 Col. L. Rev. 27. 93. Id., at 51. 34. b) Supremacy of Parliament However that may be, the idea of j u d i c i a l review had to die with the. end of the Stuart reign. Soon a f t e r the death of Lord Coke, the doctrine of the supremacy of Parliament began to be recognized i n England. 94 Coke himself announced that new p r i n c i p l e i n h i s Ins t i t u t e s . In 1653, 95 i n Captain John Streater's Case , Streater had been imprisoned by an order of Parliament. Before the King's Bench, he maintained that the imprisonment was i l l e g a l and contrary to the "law of the land". The court, a f t e r having distinguished between the j u d i c i a l function and the l e g i s l a t i v e function, said that "we must submit to the l e g i s l a t i v e ,,96 power" However i t should not be thought that the doctrine of supremacy 97 of Parliament had been e a s i l y conceded by the authors of the time . As late as the time of Blackstone there were some doubts about the existence 98 of t h i s p r i n c i p l e . Blackstone wrote i n h i s Commentaries that -94. Coke, Inst.,. .vol. I V , -at;36; MacKay, -"Coke — Parliamentary Sovereignty Supremacy of the Law", 22 Mich. L.R. 215 (1924). It seems that one way to rec o n c i l e t h i s doctrine with h i s i n t e r p r e t a t i o n of the j u d i c i a l review i n Dr. Bonham's Case 8 C. Rep. 114, at 118, i s to say that Coke did not make the d i s t i n c t i o n between l e g i s l a t i o n and adjudication. See Mcllwain, The High Court of Parliament, New Haven: Yale U n i v e r s i t y Press, 1910, at 148. 95. 5 How. State T r i a l s 366 (1653). 96. Id., at 386. 97. See Mott, Due Process of Law, New York: Da Capo Press, 1973, at .56 f f . 98. B l . Comm. 1, at 91. I t should be noted that he thought that t h i s view was wrong. 35. Acts of Parliament that are impossible to be per-formed are of no v a l i d i t y ; and i f there a r i s e out of them c o l l a t e r a l l y any absurd consequences, manifestly contradictory to common reason, they are, with regard to those c o l l a t e r a l consequences, void. I lay down the r u l e with these r e s t r i c t i o n s ; though I know i t i s generally l a i d down more l a r g e l y that acts of P a r l i a -ment contrary to reason are v o i d " . By the end of the eighteenth century the supremacy of parliament was generally accepted and recognized. As a consequence, any claim to j u d i c i a l review of l e g i s l a t i o n (either substantive or procedural whats ever) was: i r r e l e v a n t . For example, i n 1861, the d i c t a of Lord Coke i n Dr. Bonham's Case was expressly o v e r r u l e d * ^ . Henceforth i n England, Parliament w i l l never be bound by the expression "due process of law".. It can enact or not any law whatever and i n the way that i t decides. The law can be t o t a l l y unreasonable or a b s u r d 1 ^ . The courts of law have no choice but to enforce the intention 102 of the parliament . The only control over the law (just or unjust) i s 103 p u b l i c opinion . It i s i n t h i s sense that we have said i n the preceeding 99. BI. Comm. 1, at 91. 100. Kemp v. Ne v i l l e 10 C.B. (N.S.) §22 (1861). 101. I t i s quite p o s s i b l e that i n the 16th century the courts would have i n v a l i d a t e d an a r b i t r a r y statute. See Mcllwain, The High  Court of Parliament, New Haven: Yale U n i v e r s i t y Press, 1910, at 63. 102. I t should be noted that when an intention i s ambiguous the court gives e f f e c t to the meaning which i s not unreasonable, nor absurd. We w i l l come back l a t e r on t h i s question. 103. Dicey, An Introduction to the Law of the Constitution . (9th ed.), London: MacMillan and Co., 1948, c. XV. I t should be noted, however, that the p r i n c i p l e of supremacy of Parliament i s perhaps not so absolute since England's entry i n t o the Common Market. See Wade, "The Constitution and the Common Market", 87 L.Q.R. 461 (1971). chapter that i n England today the phrase "due process of law" means "according to law" and applies to the executive and j u d i c i a l branches of the government but not to Parliament. 37. CHAPTER III JUDICIAL REVIEW OF THE SUBSTANTIVE CONTENT OF LAW IN THE UNITED STATES This; chapter i s concerned with the American experience with "substantive due process". I w i l l not discuss the notion of "procedural 104 due process" . I plan to r a i s e two points. F i r s t , I w i l l show that "substantive due process" existed i n e f f e c t before there was e x p l i c i t recourse to that concept. The American t r a d i t i o n never questioned the point that the states could not a r b i t r a r i l y i n f r i n g e on a c i t i z e n ' s r i g h t to l i f e , l i b e r t y or property. This p r i n c i p l e comes from natural i law and I w i l l show that the states were required to act "reasonably" even before they were subject to a c o n s t i t u t i o n a l guarantee of "due process- of law". I w i l l also explain how that expression received a substantive content. My second point i s that "substantive due process" i s a broad concept which s t i l l e x i s t s i n American Law. I w i l l deal with d i f f e r e n t tests of " r e a s o n a b i l i t y " and w i l l suggest that the rulings of 1934 and 1937 only had the e f f e c t of changing one of these tes t s . "Substantive due process" i s a " f a s c i n a t i n g w o r l d " ' ' ' T h o u g h some passages w i l l appear t e c h n i c a l , I have t r i e d to describe t h i s phrase 104. For a survey of "procedural due process" see Gora, Due Process of  Law, I l l i n o i s : Nat. Textbook Co..', 19771 . 105. This expression i s borrowed from a chapter t i t l e concerning due process of law i n Abraham, Freedom and the Court, New York: Oxford U n i v e r s i t y Press, 1967; ch. IV:" ""The; Fascinating-World of Due Process of Law". i n as:straightforward a way possible. However, i t i s not an easy no-tio n . Therefore, i t w i l l be impossible to present a comprehensive t r e a t -ment of the American experience with "substantive due process"**^. a) Limitations on government before substantive due process American c o n s t i t u t i o n a l law i s fundamentally d i f f e r e n t from our Canadian c o n s t i t u t i o n a l law. Though both countries are federal states, one difference between them i s the way in which the powers are d i s t r i b -uted between the central (national) government and the regional govern-ment (provinces or s t a t e s ) . In Canada the B.N.A. Act exhaustively d i s -t r i b u t e d a l l the l e g i s l a t i v e powers, with only a few exceptions, between 107 the federal parliament and the p r o v i n c i a l l e g i s l a t u r e s . This means that every subject or class of subjects (sphere of human a c t i v i t y ) can be regulated. Such a d i s t r i b u t i o n was consistent with the supremacy of 108 Parliament . One of the main c o n s t i t u t i o n a l questions i n Canada, therefore, i s "who" has authority to regulate a s p e c i f i c subject? 106. A very good study has been written by Tribes i n h i s American  C o n s t i t u t i o n a l Law, Mineola: The Foundation Press Inc., 1978. 107. Hogg, C o n s t i t u t i o n a l Law of Canada, Toronto: Carswell, 1977, at 198-199.: 108. The new Charter of Rights and Freedoms has li m i t e d t h i s general p r i n c i p l e because henceforth any law that was inconsistent with the r i g h t s i t protects would be declared inoperative. However, the Charter only put l i m i t a t i o n s upon the governments. I t did not deal with the d i v i s i o n of powers which remains exhaustive. Section 1 of the Charter provides that the Charter guarantees the r i g h t s and freedoms "set out i n i t subject only to such rea-sonable l i m i t s prescribed by law as can be demonstrably j u s t i f i e d i n a free and democratic s o c i e t y . " We w i l l come back to this point l a t e r . 39. The American Constitution does not r e f l e c t the same p r i n c i p l e s . It did not exhaustively d i s t r i b u t e the l e g i s l a t i v e power between Congress and the states. In the o r i g i n a l text (1791) the Constitution enumerated only a few classes of subjects (head of powers) that Congress could 109 regulate: . These powers were delegated to i t by the states which re-tained the residue of powers. There was no defined l i s t of powers at-t r i b u t e d to the s t a t e s * ^ . However, t h i s " r e s i d u a l " power was i m p l i c i t l y l i m i t e d by the 17th and 18th centuries p o l i t i c a l theory that the people had c e r t a i n i n a l i e n a b l e r i g h t s that no state could i n t e r f e r e with. The theory was based on the p h i l o s o p h i c a l p r i n c i p l e that people had those r i g h t s in a state of nature (theory of natural law) and that when they agreed to come in t o society they created a government whose function was b a s i c a l l y the protection of those r i g h t s (theory of s o c i a l c o m p a c t ) . The theories of natural law and s o c i a l compact were used i n part to 112 j u s t i f y the American Revolution The "higher law" protected some fundamental r i g h t s which had 113 been v i o l a t e d by the B r i t i s h Crown . Thus, the American Declaration of Independance (1776) was intended to j u s t i f y the revolution against 109. See A r t i c l e I of the U.S. Constitution. 110. See Amendment X (1791), which s p e c i f i c a l l y confirmed that the States had the residue of powers. 111. See generally Wright, American Interpretation of Natural Law, New York: Russell § Russell, 1962. See also Corwin, "The 'Higher Law' Background of American C o n s t i t u t i o n a l Law", 42 Harv. L. Rev. 149 (1928-29). 112. Wright, id_., at 97. 113. Corwin, "The Higher Law Background of American C o n s t i t u t i o n a l Law", 42 Harv. L. Rev. 149 (1928-29), at 365. constituted authority . The second part of t h i s document i l l u s t r a t e s the general philosophy of that period. In i t we' read: We hold these truths to be s e l f - e v i d e n t , that a l l men are created equal, that they are endowed by t h e i r Creator with c e r t a i n ainalienable Rights, that  among these are L i f e , L i b e r t y and the Pursuit of  Happiness. That to secure these r i g h t s , Govern-ments are i n s t i t u t e d among Men, deriving t h e i r j u s t powers from the consent of the governed . But i t became more than a "general philosophy". Those " i n a l i e n -able rights." ( l i f e , l i b e r t y and the pursuit of happiness) and p o l i t i c a l theories: soon reached the Courts and became c o n s t i t u t i o n a l doctrine with regard to no written B i l l of Rights. The judges r e l i e d on the theories of natural law and s o c i a l compact to l i m i t the r e s t r i c t i o n s on l i b e r t y imposed by government. Common Law and written constitutions did not create those r i g h t s . They only declared what already existed independently i n natural law. No l e g i s l a t u r e could i n t e r f e r e with those natural r i g h t s and then contre-d i c t the p r i n c i p l e s which are at the basis of t h e i r s o c i e t y . Thus,. Government had powers that should be c o n t r o l l e d by the Courts. Calder y. B u l l (1798)*^, was the f i r s t instance of a court considering whether i t could overrule a statute on the basis of natural law. Mr. J u s t i c e Chase wrote f o r the majority that a l e g i s l a t i v e power i s not absolute 114. See Wright, American Interpretation of Natural Law, New York: Russell § Russell, 1962, at 97. 115. Emphasis added. 116. 3 U.S. (3 Dali.) 386 (1798). and i a l i m i t e d both, by i t s own nature and by the s o c i a l compact. His opinion was very close to the s p i r i t of the Declaration of Independence t I' cannot subscribe to the omnipotence of a state Legislature, or that i t i s absolute or without con-t r o l ; ... the people pf the United States erected t h e i r c o n s t i t u t i o n s , or forms of government, to e s t a b l i s h j u s t i c e , to promote general welfare, to secure the b l e s s i n g of l i b e r t y , and to protect t h e i r persons and property from violence. The purposes £ for which men enter i n t o s o c i e t y w i l l determine the nature and terms of the s o c i a l compact: and as they are the foundation of the l e g i s l a t i v e power, they w i l l decide what are the proper objects to i t . The nature, and ends of l e g i s l a t i v e power w i l l l i m i t the exercise of i t . This fundamental p r i n c i p l e flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require...-'' 1 7. This was s a i d i n 1798,.less than twenty-five years a f t e r Ameri-can independence. The s o c i a l compact was to secure the r i g h t s that we see today i n the due process clause. Mr. J u s t i c e Chase added: There are c e r t a i n v i t a l p r i n c i p l e s i n our free Repub-l i c a n Governments, which w i l l determine and overule an apparent and f l a g r a n t abuse of l e g i s l a t i v e power; as to authorize manifest i n j u s t i c e by p o s i t i v e law; or to take away that s e c u r i t y f o r personal l i b e r t y , or p r i v a t e property, f o r the protection whereof the government was established. An act of the l e g i s l a -ture... contrary to the great f i r s t p r i n c i p l e s of the s o c i a l compact, cannot be considered a r i g h t f u l exer-c i s e of l e g i s l a t i v e a u t h o r i t y 1 1 ^ . He then established a rather vague standard saying that i t was 119 "against a l l reason and j u s t i c e " . That c r i t e r i o n , though vague was 117. 3 U.S. (3 Dall.) 386 (1798), at 387 - 388. 118. Id., at 388. 119. Ibid. 42. fundamental. It w i l l become the leading t e s t f o r due process Natural law was a strong ground on which to i n v a l i d a t e l e g i s -l a t i o n and as la t e as 1868, i t could be used independently of c o n s t i t u -t i o n a l authority. T.M. Cooley wrote i n his famous t r e a t i s e about Con-s t i t u t i o n a l Limitations that, We must not commit<the mistake of supposing that, because i n d i v i d u a l r i g h t s are guarded and protected by (the B i l l of Rights), they must also be considered as owing t h e i r o r i g i n to them. These instruments measure the r i g h t s p f the r u l e r s , but do not measure the r i g h t s of the governed 1 2 1. These implied l i m i t a t i o n s upon government were also supplemented by the written Constitution. In addition to the short enumeration of powers that Congress could r i g h t f u l l y exercise, the o r i g i n a l text of the Constitution contains many sections which state what Congress could 122 not do, so that i n d i v i d u a l l i b e r t y would be protected . In 1791, the 120. We w i l l see l a t e r that the States have a l l the necessary powers to use a "reasonable" d i s c r e t i o n when they regulate a matter r e -lated to t h e i r head of power. "Reasonableness" i s therefore a l i m i t a t i o n upon the "p o l i c e power". 121. Cooley, A.Treatise on the Co n s t i t u t i o n a l Limitations (4th ed.), Boston: L i t t l e , Brown and Company, 1878, at 36. 122. "No state s h a l l ... pass any ... law impairing the o b l i g a t i o n of contracts ..." U.S. Const. Art. 1, # 10. That section applies only to the state. The F i f t h Amendment wouldhave the same e f f e c t upon federal law which impaired the obligations of contract: "No B i l l of Attainder or Ex post facto law s h a l l be passed". U.S. Const. Art. 1, # 9. "No state s h a l l ... pass any B i l l of A t t a i n -der, ex_p_ost_facto_ law..." U.S. Const. Art. 1, # 10. 43. 123 f i r s t eight amendments: ("known as- the B i l l of Rights) expressly pro-124 -h i b i t e d Congress — not the states from i n t e r f e r i n g with fundamental r i g h t s . It was: only a f t e r the passing of the Fourteenth Amendment in 1868 that the States would f i n d t h e i r powers e x p l i c i t l y l i m i t e d i n t h i s 125 way . The American Constitution was " e s s e n t i a l l y a natural-law docu-126 ment" which r e f l e c t e d the p h i l o s o p h i c a l theory of the 18th century. This i m p l i c i t p h i l o s o p h i c a l l i m i t a t i o n was made e x p l i c i t i n the terms of the American Constitution. Thus certain spheres of l e g i s l a t i v e powers (classes of subjects) were i m p l i c i t l y or e x p l i c i t l y secured from a l l governmental regulation. It was unimportant whether or not an infringement of i n d i v i d u a l rights was p r o h i b i t e d by the written c o n s t i t u t i o n . Though there may be no p r o h i b i t i o n i n the Constitu-t i o n , the l e g i s l a t u r e i s restrained from committing flagrant acts, from acts subverting the great p r i n - ^ y c i p l e s of republican l i b e r t y and the s o c i a l compact 123. The B i l l of Rights refers to the f i r s t eight amendments because the Ninth and the Tenth amendments are not considered as s p e c i f i c guarantees of i n d i v i d u a l l i b e r t i e s . See Novak, Rotunga and Young, Con s t i t u t i o n a l Law, St-Paul: West Publishing Co., 1978, at 376. 124. See Barron v. The Mayor and C i t y Council of Baltimore 32 U.S. (7 Pet.) 243 (1833) where the Supreme Court held that the amendments were not applicable to the states. 125. The Supreme Court l a t e r decided that some of the f i r s t ten amend-ments were.applicable to the states through the p r i v i l e g e s and immunities clause and the due process clause of the Fourteenth Amendment. The theory i s c a l l e d " s e l e c t i v e incorporation" and i s concerned with fundamental r i g h t s such as speech, r e l i g i o n press, etc. . See, f o r example, Duncan v. Louisiana 391 U.S. 145 (1968). 126. Lloyd, The Idea of Law, Baltimore: Penguin Books, 1970, at 84. 127. Wilkinson v. Leland 27 U.S. (2 Pet.) 627 (1829), at 646-647. See also F l e t c h e r v. Peck 10 U.S. (6 Cranch.) 87 (1810); T e r r e t t v. Taylor 15 U.S. (9 Cranch.) 43 (1815). 44. In Fletcher, v. Peck (1810) , natural law was used as an a l t e r -native ground to c o n s t i t u t i o n a l authority. Chief J u s t i c e Marshall inva-l i d a t e d a Georgia statute under these two al t e r n a t i v e grounds. He sa i d that i'....the State of Georgia was restrained, e i t h e r by general p r i n c i p l e s which are common to our free i n s t i t u t i o n s , or by the p a r t i c u l a r provisions of the c o n s t i t u t i o n of the United States, from passing (that) law.., 1 2 9. Consequently, from the beginning of the nation, one of the main c o n s t i t u t i o n a l issues was not "who" can regulate but "whether" a s p e c i f i c a c t i v i t y (or class of subjects) was subject to government regulation or "whether" i t was: forbidden by the Constitution or by natural law. The phrase "due process of law" occurs i n two Co n s t i t u t i o n a l Amendmentss(the F i f t h and the Fourteenth) which provide that the Govern-ment s h a l l not deprive any person of " l i f e , l i b e r t y or property, without 130 due process of law" . While the F i f t h Amendment has l i m i t e d Congress since 1791, the Fourteenth Amendment, which applies to. the s t a t e s , was 128. 10 U.S. (6 Cranch.) 87 (1810). 129. Id.., at 139. The state had rescinded a grant of land to o r i g i n a l purchasers. The doctrine of "vested rights", i n v a l i d a t e d such an act. Those "vested r i g h t s " existed when an i n d i v i d u a l had acquired under the law a r i g h t to do or to possess something. The l e g i s -lature could not abridge a "vested r i g h t " without paying a compen-sation. Such a rescinding without compensation was regarded as a punishment ex post facto. It was i l l e g a l . Both Matural law and the co n s t i t u t i o n forbade i t . 130. Amendment V: "No person s h a l l be... deprived of l i f e , l i b e r t y , or property, without due process of law." Amendment XIV: "No state s h a l l . . . deprive any person of l i f e , l i b e r t y or property, without due process of law." enacted only i n 1868. It should not be assumed, however, that u n t i l 1868 the states were free to i n f r i n g e an i n d i v i d u a l ' s r i g h t to " l i b e r t y " 131 or "property" . These two fundamental rights were already protected by natural law and by the s o c i a l compact. It was understood that, The fundamental maxims of free government seem to require that the r i g h t s to personal l i b e r t y and private property should be held sacre From time to time, therefore, the Supreme Court of the United States would s t r i k e down a statute which v i o l a t e d t h i s fundamental law by 133 i n t e r f e r i n g with the r i g h t to property or to l i b e r t y . The judges assumed that they could look at the "substantive" content of the law enacted by e i t h e r Congress or the states i n order to see i f i t v i o l a t e d 134 natural law or the p r i n c i p l e of s o c i a l compact Thus, when the theories of natural law and of s o c i a l compact were no longer popular i n American c o n s t i t u t i o n a l law, the judges, 131. See generally, Corwin, "The Doctrine of Due Process of Law Before the C i v i l War", 24 Harv. L. Rev. 366 (1911); Graham, "Procedure to Substance - E x t r a - J u d i c i a l Rise of Due Process 1830-60", 40 Cal.'.L. Rev. 483 (1952); Cooley, A Treatise on C o n s t i t u t i o n a l  Limitations' Which Rests Upon the L e g i s l a t i v e Power of the States  Sf the American Union (4th ed.), Boston: L i t t l e , Brown, and Com-pany, 1878. 132. ; Wilkinson v. Leland 27 U.S. (2 Pet.) 627 (1829), at 657. 133. See F l e t c h e r v. Peck 10 U.S. (6 Cranch.) 87 (1810); T e r r e t t v. Taylor 13 U.S. (9 Cranch.) 43 (1815). 134. See Corwin, "The Doctrine of Due Process of Law Before the C i v i l War", 24 Harv. L. Rev. 366 (1911), at 374. There was "a f e e l i n g on the part of the judges- that to leave the l e g i s l a t u r e free to pass a r b i t r a r y or harsh laws, sol-long as a l l the f o r m a l i t i e s be observed i n enforcing such laws, were to y i e l d the substance while contending f o r the shadow." 46. consciously or not, turned to the due process clauses which expressly safeguarded the fundamental r i g h t s to " l i b e r t y " and to "property" to provide protection. It was already argued before the C i v i l War (1868) that "due process of law" should receive a "substantive" content beyond 135 i t s merely procedural content of c o l o n i a l days . However, i t was only a f t e r the passing of the Fourteenth Amendment i n 1868 that the p h i l o s o -136 phy of "substantive due process" was r e a l l y accepted Under t h i s new concept of "substantive due process" the court would be allowed to look at the "substantive" content of the law in order to determine whether or not the natural r i g h t s guaranteed by the 137 s o c i a l compact had been v i o l a t e d . The due process clauses were understood by many autho r i t i e s to be substitutes; f o r natural law and s o c i a l compact. In the very f i r s t case concerning the Fourteenth Amendment, the 138 Slaughterhouse cases (1873) , Mr. Ju s t i c e F i e l d , speaking f o r four judges, s a i d that, ...(the Fourteenth) Amendment was; intended to give p r a c t i c a l e f f e c t to the declaration of 1776 of 135. See Wynehamer v. People, 13 N.Y. 378 (1856);. Dred Scott v. Sand- ford, 19 How. 393 (U.S. 1857). 136. It should be noted that the f i r s t decisions concerning the Four-teenth Amendment did not accept the substantive due process ap-proach. See the Slaughterhouse cases, 83 U.S. (16 Wall.) 36 (1873). 137. See Barbier v. Connolly, 113 U.S. 27 (1885). 138. 83 U.S. (16 Wall.) 36 (1873). i n a l i e n a b l e r i g h t s , rights, which, are the g i f t of the Creator: which the law does not confer, but only l^Q recognizes - o v. The theory was l a t e r adopted, by a majority of the Supreme Court. In 140 In re Kemmler (3-889) 3 Mr. J u s t i c e F u l l e r s a i d that the Fourteenth Amendment ...refers to the law of the land i n each state, which derives i t s authority from the inherent and reserved power:of the state, exerted within the l i m i t s of these fundamental p r i n c i p l e s of l i b e r t y and j u s t i c e which l i e at the base of a l l our c i v i l and p o l i t i c a l i n s t i t u t i o n s . Undoubtedly the amendment forbids any a r b i t r a r y deprivation of l i f e , l i b e r t y or property... Therefore, from the beginning of the nation, the governments were prevented from passing laws which could deprive the i n d i v i d u a l of h i s r i g h t to " l i b e r t y " and "property". These l i m i t a t i o n s , however, had to be balanced with the legitimate and permissible exercise of powers by the Congress and the States. This was f a i r l y easy as f a r as Congress was concerned since the Constitution contained an e x p l i c i t enumeration of i t s power. It has been much harder to define the p o s i t i v e power of the states, which, had been given a l i m i t e d r e s i d u a l power in the area f a l l i n g between the express- federal powers and the r i g h t s reserved to the people. 139. 83 U.S. (16 Wall.) 36 (1873), at 105. 140. 136 U.S. 436 (1889). 141. Id., at 448. In ~the 19th. century the court determined the proper spheres of authority- that a state had within i t s residuary power. Chief J u s t i c e 142 Marshall in Gibbons -v. Ogden (1824) recognized that the states had the power ...to regulate i t s p o l i c e , i t s domestic trade, and to govern i t s own c i t i z e n s , (and) may... l e g i s l a t e on t h i s subject to a considerable e x t e n t . That description was very broad although not absolute. The States had d i s c r e t i o n to decide what i s "necessary f o r the p u b l i c good". The r o l e of the court became understood as merely seeing "that 144 the law operates upon the subject of the power" . But Chief J u s t i c e Taney went further i n Charles River Bridge Co. v. Warren Bridge Co. 145 (1837) . In that case Charles River Bridge. Co., maintained that i t s charter i m p l i c i t l y endowed i t with a monopoly i n the r i g h t to f u r n i s h transportation across the Charles River. The court said that i t was wrong. In p u b l i c grant nothing passes by i m p l i c a t i o n . . . the object and end. of a l l government i s to promote the happiness and posperity of the community by which i t i s established: ...while the rights of private pro-perty are sacredly guarded. We must not forget that 142. 9 Wheat. 1824) 1. 143. I d . , a t 208. 144.. Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827). 145. 11 Pet. 420 Cl837). the community also has rights., and that the happiness and well-being of every c i t i z e n depends on t h e i r f a i t h f u l p r e s e r v a t i o n 1 4 ^ . Although i t was contrary to t h e i r free i n s t i t u t i o n to deprive 147 somebody of his: property henceforth such a l e g i s l a t i o n would be upheld, because the court would assume that i t was passed to promote the. "public i n t e r e s t " . The judges recognized the need of the l e g i s l a -ture to act i n favour of the welfare of i t s c i t i z e n s . However, that 148 power should be within "the extent of i t s dominions" . Consequently, the. p o l i c e power balanced the weight of implied l i m i t a t i o n s concerning 149 property r i g h t s . The p u b l i c i n t e r e s t generally p r e v a i l e d against such r i g h t s . However, i n 1851, Chief J u s t i c e Shaw gave a d e f i n i t i o n of the "police power" which l a t e r became a fundamental p i l l a r of "substantive due process". He sa i d i n Commonwealth v. Alger (1851)^^ that the "police power" of a state i s ...the power vested i n the l e g i s l a t u r e by the cons-t i t u t i o n to make, ordain and e s t a b l i s h a l l manner of  wholesome and reasonable laws, statutes and o r d i - nances , e i t h e r with penalties or without, not repug-nant to the c o n s t i t u t i o n , as they s h a l l judge to be 146. 11 Pet. 420 (1837), at 547-548. 147. See Fletcher v. Peck 10 U.S. (6 Cranch.) 87 (1810). 148. Chief J u s t i c e Taney i n the Licenses' Cases, 5 How. (U.S. 1847) 509. 149. Two written clauses also protected p r i v a t e property r i g h t s : the contract clause and the supremacy clause. 150. 7 Cush. (Mass. 1851) 53. 50. fox the good and welfare of the commonwealth., and of the subjects of the same^l. Soon i t was generally understood that a law enacted to promote 152 the order, safety, health, moral and general welfare of society was 153 passed to promote legitimate ends of government . These ends became 154 known as the "police power" . That was important because any statute which was- enacted to promote another purpose and which i n t e r f e r e d with the i n d i v i d u a l r i g h t to l i b e r t y or property would be void as inconsistent w i t h Udue process of law". Generally speaking the only legitimate goal of government was the protection of i n d i v i d u a l r i g h t s and the promotion 151. 7 Cush. (Mass. 1851) 53, at 85. Emphasis added. That d e f i n i t i o n came from the Massachussetts Constitution of 1780 which empowers the general court "from time to time, (to) make, ordain, and esta-b l i s h a l l manner of wholesome and reasonable orders, laws, statutes and ordinances..." I t r e c a l l s the famous dictum i n Dr. Bonham's  Case decided by Lord Coke i n 1610: "When an act of Parliament i s against common r i g h t and reason, or repugnant, or impossible to be performed, the common law w i l l control i t and adjudge such act to be v o i d " , 8 Co. Rep. 114 (1610), at 118. See Plucknett, "Bonham's Case and J u d i c i a l Review" (1962), 40 Harv. L. Rev. 30. In any event, that opinion of Chief J u s t i c e Shaw was fundamental. It established the standard of "reasonableness". 152. Corpus: J u r i s , V o l. XII, at 904. - See also F i e l d , J . , concurring i n Butcher's Union Co. v. Crescent C i t y Co., 111 U.S. 746 (1884), at 755. See Beer Co. v. Massachussetts, 97 U.S. 25 (1878), at 33; Barbier v. Connolly, 113 U.S. 27 (1885), at 31. 153. Cooley, A Treatise on the C o n s t i t u t i o n a l Limitations (4th ed.), Boston: L i t t l e , Brown § Company, 1878, ch.vXVI. 154. The f i r s t use of t h i s term i s found i n Brown v. Maryland, 12 Wheat. 419 (U.S. 1827), at 443. Today the concept of p o l i c e power i s much broader. Therefore the legitimate ends of the states were extended. The notion follows the role of government and the needs of society. The concept of general welfare i s broader now than i t was a century ago. Such i s the p o l i c e power of the states. 51. of the general w e l f a r e T h e ' s t a t e s - were forbidden to v i o l a t e the r i g h t to property or to l i b e r t y . b) Substantive due process before 1957 "Substantive due process." can be understood as the r e l a t i o n s h i p between the exercise of "police power" of the States and l i m i t a t i o n s on i t . It appears that i t defines the boundary between fundamental r i g h t s and p u b l i c regulations. The States were l i m i t e d i n their, powers. They could impinge on i n d i v i d u a l r i g h t s only within t h e i r j u r i s d i c t i o n . On the one hand i t meant that t h e i r t e r r i t o r y had l i m i t a t i o n s , and on the other hand i t meant that morals, health, safety and p u b l i c welfare had l i m i t a t i o n s . The t e r r i t o r i a l l i m i t i s e a s i l y understood. A state x could not deprive a c i t i z e n who resided i n a state y of h i s r i g h t s i n that state y. The p o l i c e power l i m i t a t i o n s however were more subtle. Who was e n t i t l e d to decide whether a l e g i s l a t i o n comes under a l e g i t i -mate power such as health? The l e g i s l a t u r e or the court? The h i s t o r y of "substantive due process" was designed to provide an answer to these questions. The best i l l u s t r a t i o n of t h i s American t r a d i t i o n i s found i n the states' regulations of economic matters before 1937. This period i s often c a l l e d one of "economic due process" even though that phrase 155. See T r i b e , American Co n s t i t u t i o n a l Law, Mineola: The Foundation Press: Inc., 1978, ch. 8-4. r e f e r r e d to only one branch, of "substantive due process" before 1937 The problem can be stated as follows: The American Constitution has almost nothing to say about economic regulation by such means as business; and labour laws.. But neither Congress nor the state l e g i s l a -tures could i n t e r f e r e with i n d i v i d u a l property or l i b e r t y (applying e i t h e r the due process clauses or natural law). Congress had to l i m i t its- regulations to the s p e c i f i c powers enumerated i n the Constitution. The only legitimate goal of the state was to protect i n d i v i d u a l r i g h t s and the p u b l i c welfare. Thus, no state government could take property 157 from A to give i t to B . Such an act would be an impermissible end of'government and would be i n v a l i d . Therefore, certain laws which i n t e r f e r e d with certain types of economic l i b e r t y were not seen as permissible ends of government. The issue was whether such businesses were subject to governmental regulation or whether they were not a permissible end subject to regulation. "• 1_. 5 ..Before c to chne r At an e a r l y date, the judges of the Supreme Court of the United States- l i m i t e d governmental authority over economic matters. In 1795, 156. It should be noted that many authors equate the two expressions. They thus suggest that the abandoning of economic due process also means the end of substantive due process. See Tarnopolsky, The Canadian B i l l of Rights (2nd ed.), Carleton Library, McClel-land and Stewart Ltd., 1975, at 231. 157. Calder v. B u l l , 3 U.S. (3 Dall.) 386 (1798), at 388. 53. 15 8 i n Van Home's v. Dorrance i t was; held that, It is; evident that the r i g h t of acquiring and pos-sessing property", and having i t protected, i s one of the natural inherent and in a l i e n a b l e r i g h t s of man... the l e g i s l a t u r e therefore had no authority to make an act divesting one c i t i z e n of h i s f r e e -hold, and vesting i t i n another, without j u s t compensation. It i s inconsistent with the p r i n - ^ g c i p l e s of reason, j u s t i c e and moral r e c t i t u d e . . . This; natural law wording allowed the courts to look at the "substantive" content of the l e g i s l a t i o n . Three years l a t e r i n Calder v. B u l l (1798)*^ Mr. Justice Chase said: The people of the United States erected t h e i r c o n s t i -t u t i o n , or forms of government, to e s t a b l i s h j u s t i c e , to promote the general welfare, to secure the b l e s -sings of l i b e r t y , and to protect t h e i r persons and property from vio l e n c e . . . there are certain v i t a l p r i n c i p l e s i n our free Republican governments, which w i l l determine and overrule an apparent and fl a g r a n t abuse of l e g i s l a t i v e power; as to authorize manifest i n j u s t i c e by p o s i t i v e law; or to take away that secu-r i t y f o r personal l i b e r t y , or private property, f o r the protection whereof the government was established ... a law that destroys, or impairs, the lawful p r i -vate contracts of c i t i z e n s ; ... or a law that takes property from A and gives i t to B ... i s against a l l reason and j u s t i c e . '161 During the 18th and the 19th century, the Court focused on the r i g h t to "property". It i s not by chance that the majority of the cases 158. 2 Dallas 304 (1795). 159. rd., at 310. 160. 3 U.S. (3 Dali.) 386 (1798). 161. Id.,. at .388. 54. 162 already quoted dealt with "property" rights But,the broader the scope of fundamental r i g h t s , the broader w i l l be the sphere preserved from government regulation. And the court found that the r i g h t s to l i b e r t y and property included "freedom of 163 contract" . Again, i t was easy to make this' i n t e r p r e t a t i o n , consid-ering the general b e l i e f i n natural law. In Butcher's Union Co. v. 164 Crescent C i t y Co. (1884) Mr. J u s t i c e Bradley sa i d : The r i g h t to follow any of the common occupations of l i f e i s an i n a l i e n a b l e right.. It was formulated as such under the phrase "pursuit of happiness" in the Declaration of Independence. ...This r i g h t i s a " large ingredient in the c i v i l l i b e r t y of the c i t i -zen... i f i t does not abridge the p r i v i l e g e s and immunities of a c i t i z e n of the United States to p r o h i b i t him from pursuing h i s chosen c a l l i n g , and giving to others the exclusive r i g h t of pursuing i t , i t c e r t a i n l y does deprive him, to a certain extent, . of his- l i b e r t y . . . 1 6 5 . This opinion was l a t e r approved by Mr. J u s t i c e Peckham i n Allgeyer v. Louisiana (1897) dealing with the due process clause of the Four-teenth Amendment, He s a i d f o r a unanimous court: The Liber t y (of the Fourteenth Amendment) means, not only the r i g h t . o f the c i t i z e n to be free from the mere ph y s i c a l r e s t r a i n t of his person, as by inc a r c e r -ation, but the term i s deemed to embrace the r i g h t of 162. See also the Railroad Commission Cases, 116 U.S. 307 (1886). 163. Barbier v. Connolly, 113 U.S. 27 (1885). 164. I l l U.S. 746 (1884). 165. Id., at 764. 166. 165 U.S. 578 (1897). 55. the c i t i z e n to be free i n the enjoyment of a l l his f a c u l t i e s ; to be free to use them i n a l l lawful ways; to l i v e and work where he w i l l ; to earn his l i v e l i -hood by any lawful c a l l i n g ; to pursue any l i v e l i h o o d or avocation; and f o r that purpose to enter i n t o a l l . contracts which may be proper, necessary and e s s e n t i a l to his carrying out to a successful conclusion the purposes a b o v e 1 6 7 . Consequently the l e g i s l a t u r e s could not i n t e r f e r e with the "freedom of contract", except by "due process of law". And a statute which exceded the "police power" of the states and i n f r i n g e d that "freedom", v i o l a t e d the due process clause. The court could decide whether a statute i n t e r f e r e d with the r i g h t to l i f e , l i b e r t y or property. The judges also assumed that they 168 could review whether the l e g i s l a t u r e had gone beyond i t s "police power" A l l g e y e r . i s often quoted .as the f i r s t case-using "substantive due process" i n order to void a state law. The statute prohibited any person whose property i s within the t e r r i t o r y of Louisiana from contract-ing with a marine insurance company which had not complied i n a l l respects with Louisiana law. In this case the State convicted Allgeyer because he had mailed a l e t t e r to a company which was not licensed i n Louisiana. The appeal court held that there was ^ ^ d e p r i v a t i o n .of liberty":w.-ithoutcdue..pro-cess of law. The state could p r o h i b i t or regulate such a company from doing business within i t s l i m i t s . However, the contract was made out-side the limits, of the State. The court ruled: 167. 165 U.S. 578 (1897), at 589. Emphasis added. 168. "Mugler v. Kansas, 123 U.S. 623 (1887). Where the contract was: made outside the state and as such was a v a l i d and proper contract... to deprive the c i t i z e n s of such a r i g h t as herein described without due process of law i s i l l e g a l . Such a statute... i s not due process of law because, i t pro-h i b i t s and act which under the Federal Constitution the defendants had a r i g h t to perform... Yet the power (of the state) does not and cannot extend to p r o h i b i t i n g the. .citizen from making contracts of the nature involved... outside the l i m i t s and j u r i s d i c -t i o n of the state... •'•^ . The same r i g h t could be p r o h i b i t e d within the t e r r i t o r y of the State. "Due process of law" can be understood as a respect of the c o n s t i t u t i o n a l j u r i s d i c t i o n . While the t e r r i t o r i a l l i m i t s required a rather easy t e s t , the d i f f i c u l t y increased with the l i m i t a t i o n s upon the "police power". The jurisprudence had established that the State could enact l e g i s l a t i o n to promote p u b l i c morals, health, safety and welfare. However, there was.a strong t r a d i t i o n of natural law which required that the statutes should be v o i d i f they were forbidden by "the general p r i n c i p l e s of law and reason" The f i r s t cases dealing with the Fourteenth Amendment followed a p o l i c y of noninterference with l e g i s l a t i v e judgments. Thus, i n Munn 171 v. I l l i n o i s (1876) Mr. J u s t i c e Waite said that 169. 165 U.S. 578 (1897), at 591. 170. See e.g. Calder v. B u l l , 3 D a l l . 386 (1798), at 388. 171. 94 U.S. 113 (1876). fox protection against abuses by l e g i s l a t u r e s the people must res o r t to the p o l l s , nottto the courts The Court refused to look at the " r e a s o n a b i l i t y " of a statute i f i t dealt 173 with a p r i v a t e property clothed with a p u b l i c i n t e r e s t . Moreover, i n 174 Barbler y. Connolly (1883) the Court s a i d that the Fourteenth Amend-175 ment was not intended "to i n t e r f e r e with the power of the States" However, such an affirmation r a i s e d the question of whether the court could decide when a l e g i s l a t u r e i s outside i t s p o l i c e power. In that case, Mr. J u s t i c e F i e l d said: Regulations f o r these purposes (health, safety...) may press with more or less weight upon one than upon another, but they are designed not to impose unequal or unnecessary r e s t r i c t i o n s upon anyone, but to pro-mote... the general g o o d i e . He did not say, however, who should decide i f a regulation were enacted f o r that purpose and i f i t were designed to impose unnecessary r e s t r i c -tions upon c i t i z e n s . The only i n d i c a t i o n was h i s statement that i n the 172. 94 U.S. 113 (1876), at 134. 173. The c r i t e r i o n of business "affected with a p u b l i c i n t e r e s t " w i l l not be studied i n this paper. The scope of such a business had often v a r i e d before the f i n a l drop of that c r i t e r i o n i n 1934. But i t appears that when a business had no such a f f e c t a t i o n , the State could not regulate i t . At least the " r e a s o n a b i l i t y " would be as-certained j u d i c i a l l y . Where a business was "affected with a p u b l i c i n t e r e s t " the court decided that there was no review of the "rea-s o n a b i l i t y " . (See Munn v. I l l i n o i s , 94 U.S. 113 (1876). The ro l e of the Court was therefore to decide the question of whether a business was "affected with a p u b l i c i n t e r e s t " . 174. 113 U.S. 27 (1883). 175. Id., at 31. 176. Id., at 32. 58. Fourteenth, Amendment i t was- "undoubtedly" intended that there should be 17 no deprivation of l i f e or l i b e r t y or a r b i t r a r y s p o l i a t i o n of property" But how can an a r b i t r a r y act be prevented i f the court cannot review the l e g i s l a t i o n ? The p o l i c y of noninterference ended. The court assumed that i t s role was: to review the laws.. The judges understood that they had to look, at the substance of the law i n order to s t r i k e down a r b i t r a r y laws. Corwin s a i d that there was ...a f e e l i n g on the part of the judges that to leave the l e g i s l a t u r e free to pass a r b i t r a r y or harsh, laws, so long as a l l the f o r m a l i t i e s be observed i n enforcing such, laws, were to y i e l d the substance while contending fo r the shadow 1 7 8. 179 Thus: i n Mugler v. Kansas (1887) , the Court f i l l e d the gaps. The statute p r o h i b i t e d the sale of a l c o h o l i c beverages. The question was whether the statute was i n c o n f l i c t with the due process clause. Obviously the state could p r o h i b i t some drinks which were i n j u r i o u s to the "public health", because i t was understood that a l e g i s l a t u r e could regulate human a c t i v i t i e s i n order to protect i n d i v i d u a l r i g h t s and pu b l i c good. But the court f i r s t asked that question: 177. Id., at 31. - *. _ 178. Corwin, "The Doctrine*••• of Due Process of Law before the C i v i l War", 24, Harv. L. Rev. 366 (1911), at 374. 179. 123 U.S. 623 (1887). By whom, or by what authority," i s to be determined whether the manufacture of p a r t i c u l a r a r t i c l e s of drink... w i l l i n j u r i o u s l y a f f e c t the p u b l i c ? 1 8 ^ Mr. J u s t i c e Harlan f o r the majority answered that the l e g i s l a -ture i n i t i a l l y could decide what the welfare.of the people demand: Under our system that, power i s lodged with the l e g i s -l a t i v e branch of the government. It belongs to that department to exert what are known as the p o l i c e powers of the State and to determine p r i m a r i l y what measures are appropriate or needful for the protec-t i o n of the p u b l i c morals, the p u b l i c health, or the p u b l i c s a f e t y 1 8 1 . However, the courts reserved f o r themselves the power to decide whether a statute i s "to be accepted as a legitimate.exertion of the p o l i c e 182 power of the s t a t e s " . Consequently, the court would control the 183 "substantive" content of the law . In Mugler v. Kansas (1887) i t was held: The courts are not bound by mere forms, nor are they to be'misled by mere pretenses. They are at l i b e r t y — indeed, are under a solemn duty — to look at the substance of things whenever they enter upon the i n q u i r y whether the l e g i s l a t u r e had transcended the l i m i t s of i t s a u t h o r i t y 1 8 4 . 180. Id., at 660. 181. : Id., at 661. 182. Ibid. 183. Ibid. 184. Ibid.. 60. That 'inquiry was c o n s t i t u t i o n a l . The State could not say with f i n a l i t y that the act was to promote health i f i t had an e f f e c t on p r i -vate matter. The State did not have.such a power. It could l e g i s l a t e only within i t s p o l i c e power and the Court could control whether the act was beyond those powers. The question was whether the l e g i s l a t i v e object of a given statute was permissible (whether the end was l e g i t i m a t e ) . Mr. J u s t i c e Harlan went further. He set out a "standard" to review an act under "substantive due process". He said: I f , therefore, a statute purporting to have been, enacted to protect the p u b l i c health, the p u b l i c morals, or the p u b l i c safety, has norreaih or sub- s t a n t i a l r e l a t i o n to those objects, or i s a p a l - pable invasion of r i g h t s secured by the funda-mental law, i t i s the duty of the courts to so adjudge, and thereby give e f f e c t to the c o n s t i t u -t i o n 1°5. In that case, the statute was upheld. However, the case i n d i -cated what due process would become. It was a j u r i s d i c t i o n a l question. The state could not exceed i t s "police power" and invade i n d i v i d u a l r i g h t s . Determining the l i m i t s of such a power would lead to an ex-tension of "substantive due process". A state could regulate a business i n the p u b l i c i n t e r e s t or f o r the p u b l i c health. However, the court would review any statute which did not meet the test proposed by Mr. J u s t i c e Harlan 185. 123 U.S. 623 (1887). Emphasis added. 186. I w i l l c a l l t his t e s t the "Harlan" t e s t . 61. This "substantive due. process;" t e s t can be rephrased as f o l -i 187 lows : 1. The end must be permissible or legitimate; 2. The-means must have a s u b s t a n t i a l r e l a t i o n to the end; and 3. Fundamental r i g h t s must not be infringed. Later cases have added that where a law has a legitimate end i t 188 s t i l l must not be unreasonable, a r b i t r a r y or oppressive 187. See Brown, "Due Process of Law, Police Power, and the Supreme Court", 40 Harv. L. Rev. 943 (1926-27). 188. Ibjd. See Holmes, J . , i n Otis v. Parker, 187 U.S. 606 (1903); McKenna, J . , i n Eubank v. C i t y of Richmond, 226 U.S. 137 (1912); Lochner v. New York, 198 U.S. 45 (1905); see also Murtado v. C a l i - f o r n i a , 110 U.S. 516 (1884); Manachino v. Rohen, 178 N.Y.S. 2d 246 (1958). The whole idea of "reasonableness" would come from the opinion of Chief J u s t i c e Shaw in Commonwealth v. Alger, 7 Cush. (Mass. 1851) 53, at 85. He s a i d : "The power vested i n the Legislature by the Constitution to make, ordain and e s t a b l i s h a l l manner of wholesome and reasonable laws, statutes and ordinances..." See generally Corwin, Liber t y Against Government, Baton Rouge: Louisiana State U n i v e r s i t y Press, 1948, at 146 f f . It appears that from the beginning, the l e g i s l a t u r e s could not a r b i t r a r i l y deprive the i n d i v i d u a l of h i s fundamental l i b e r t y . Whatever grounds had been used to l i m i t the l e g i s l a t u r e — hatural law or the due process clause — the Court had always been reluctant to leave the government free to pass any a r b i t r a r y acts. For example, :; .... i n 'White v. White, 5 Barb. 474 (1845),. a Court said: "The s e c u r i t y of the c i t i z e n against a r b i t r a r y l e g i s l a t i v e action rests upon the s o l i d ground of natural r i g h t s " , id_., at 485. The question of whether the Fourteenth Amendment had the same purpose was not d i f -ficult.- f WeJsaw<_thatthis Amendment wasaunderstood asaa substitute fo r n a t u r a l law. .?.Thus, -in.In.-Re". Kemmler,.. 136 UVS.-436 (1889) .at 448, the Court said that the Fourteenth Amendment required that the actions of the states be "exerted within the l i m i t s of those fundamental p r i n c i p l e s of l i b e r t y and j u s t i c e which l i e at the base of a l l our c i v i l and p o l i t i c a l i n s t i t u t i o n s . Undoubtedly the amendment forbids any a r b i t r a r y deprivation of l i f e , l i b e r t y or property, and secures equal protection to a l l under l i k e c i r -cumstances i n the enjoyment of t h e i r r i g h t s " . An " a r b i t r a r y " act was understood as an "unreasonable" act. Already i n Calder v. B u l l , 62. 2. Lochner v. New York: The best example of the e f f e c t of the "substantive due process" 189 t e s t i n economic matters i s the case of Lochner v. New York (1905) The State of New York had prescribed a maximum number of hours a baker could work (60 hours a week or 10 hours a day). The court recognized without d i f f i c u l t y that t h i s statute i n t e r f e r e d with the r i g h t of con-190 t r a c t between the employer and employees . Thus two questions arose: Ca) Was the end legitimate? and (b) Was the means s u b s t a n t i a l l y r e l a t e d to a permissible end? The majority of the court discussed, f i r s t , whether the statute had a legitimate purpose (end). The judges enumerated the ends that would have been legitimate. Therefore they rejected the contention that such a statute, seen as a mere "labour law" without other legitimate ends:, was s u f f i c i e n t to be legitimate: 3 U.S. C3 Dali.) 386 (1798), the Court had struck down a statute deemed to contravene "the general p r i n c i p l e s of law and reason" or " a l l reason and j u s t i c e " . Id_., at 388. Thus, the court soon required "reasonable" l e g i s l a t i o n . It was therefore not by accident i n Holden v. Hardy/ 169 U.S. 366 (1898), at 398, that Mr.1 J u s t i c e Brown, speaking f o r the majority s a i d that "the ques-tio n in each case i s whether the l e g i s l a t u r e had adopted statute i n exercise of a reasonable d i s c r e t i o n , or whether i t s action be a.mere excuse for an unjust discrimination, or the oppression, or s p o l i a t i o n of a p a r t i c u l a r c l a s s " . Emphasis added. The reasonable d i s c r e t i o n was precedented. Mr. J u s t i c e Brown quoted the passage from Chief J u s t i c e Shaw i n Commonwealth v. Alger, 7 Cush. (Mass. 1851) 53, who had written that fundamental r i g h t s were subject to "reasonable l i m i t a t i o n s by l e g i s l a t i o n " . See Holden v. Hardy, 69 . U.S. 366 (1898), at 392. 189. '. 198 U.S. 45 (1905). 190. Id., at 53. "The statute n e c e s s a r i l y i n t e r f e r e s with the r i g h t of contract." Viewed i n the l i g h t of a purely labor law, with no reference whatever to the question of health, we think that a law l i k e the one before us involves neither the safety, the morals, nor the welfare, of the p u b l i c , and that the i n t e r e s t of the p u b l i c i s not in the s l i g h t e s t degree af f e c t e d by such an act " I . Therefore the court had to decide whether the statute could stand as a "health" measure f o r the i n d i v i d u a l engaged i n the occupation of baker. The general question to be answered was: Is this a f a i r , reasonable, and appropriate exercise of the p o l i c e power of the state, or i s i t an unrea-sonable, unnecessary, and a r b i t r a r y interference with the r i g h t of the i n d i v i d u a l to h i s personal l i b e r t y ? 1 9 2 The judges thus turned to the second question, the "substantive due process." t e s t or whether the l i m i t a t i o n of hours on a bakery em-ployee's: work was s u b s t a n t i a l l y and " d i r e c t l y " r e l a t e d to t h i s l e g i t i -mate end (health). The majority looked at the content of the law and rejected t h i s contention. F i r s t , i t was held that i t was not a "rea-sonable" exercise of the "police power" because i n the judgment of the court there was ...no reasonable foundation f o r holding t h i s to be necessary or appropriate as a health law to safe-guard the (health) ... there can be no f a i r doubt that the trade of baker i n and of i t s e l f i s not an 191. 198 U.S. 45 0-905], at 57. 192. Id., at 56. unhealthy one. to that degree- which would authorize the, l e g i s l a t u r e to i n t e r f e r e with the r i g h t to labor, and ... of free contract...193_ Second, the judges ruled that there was no r e a l and d i r e c t connection between the means and the end. It i s manifest to us that the l i m i t a t i o n of the hours of labor... has no such d i r e c t r e l a t i o n to, and no s u b s t a n t i a l e f f e c t upon the health of the employee, as- to j u s t i f y us: in regarding the section as r e a l l y a health law. It seems to us that the r e a l object and purpose were simply to regulate the hours of l a -bor between the master and h i s employees... i n a p r i -vate business 194. The New York statute thus: dealt with a matter which was beyond the "police power" of the states. The end was not legitimate, and the means not s u f f i c i e n t l y r e l a t e d to any legitimate end. The statute was struck down. That t e s t of " r e a s o n a b i l i t y " was rather severe. The law had to be a " f a i r , reasonable and appropriate" exercise of the p o l i c e power. Though Mr. J u s t i c e Peckham sa i d that t h i s was not "a question of sub-195 s t i t u t i n g the judgment of the court f o r that of the l e g i s l a t u r e " , the a p p l i c a t i o n of that t e s t did so i n f a c t . The court c o n t r o l l e d the "wisdom" of the l e g i s l a t i o n . This t e s t may be c a l l e d the " s t r i c t s c r u-t i n y t e s t . It means that the court looks at the f a c t u a l basis f o r the 193. 198 U.S. 45 (1905), at 58-59. It should be noted, however, that Mr. Jus.-tice Harlan i n dissent concluded that the evidence showed the bakers that working conditions posed a serious threat to t h e i r health. Id., at 70 f f . 194. rd., at 64. 195. Id., at 56-57. l e g i s l a t i o n i n order to decide whether the means were f a i r , reasonable and appropriate i n r e l a t i o n to a l e g i t i m a t e end. Mr. J u s t i c e Harlan, f o r the m i n o r i t y gave a t e s t less severe. 196 In the case o f Mugler v. Kansas (1887) , he had explained which t e s t should guide, the, judges: : He had s a i d that the court should see i f the s t a t u t e had a " r e a l and s u b s t a n t i a l r e l a t i o n " to a proper purpose (such as? health) and whether i t was a "palpable i n v a s i o n o f r i g h t s secured by 197 fundamental law" . In the Mugler.case he had s a i d : I t i s d i f f i c u l t to perceive any ground f o r the j u d i -c i a r y to declare t h a t the p r o h i b i t i o n by Kansas... i s not f a i r l y adapted to the end of p r o t e c t i n g the community against (various) e v i l s . . . For we cannot shut out of view the f a c t , w i t h i n the knowledge of a l l , t h a t the p u b l i c h e a l t h . . . maybbe endangered by the general use of i n t o x i c a t i n g d r i n k s . . . i f , there-f o r e , a State deems the absolute p r o h i b i t i o n of the manufacture and s a l e , w i t h i n her l i m i t s . . . to be necessary t o the peace and s e c u r i t y o f s o c i e t y , the courts cannot, without usurping l e g i s l a t i v e func-t i o n ' s o v e r r i d e the w i l l o f the people as thus ex-pressed by t h e i r chosen r e p r e s e n t a t i v e s . They have nothing t o do with the mere p o l i c y o f l e g i s l a t i o n 1 - ^ . Mr. J u s t i c e Harlan i n Mugler v. Kansas went on to say th a t nobody can s e l l or manufacture what the l e g i s l a t u r e , "on reasonable grounds, de-199 c l a r e s to be p r e j u d i c i a l to the general w e l f a r e " 196. 123 U.S. 623 (1897). See supra, text accompanying note 185 f f . 197. I d . , at 661. 198. I d . , at 661-662. 199. I d . , at 663. Emphasis added. 66. In Lochner v. New York (.190,5) the minority opinion of Mr. Jus-t i c e Harlan restated those p r i n c i p l e s . He agreed that the "po l i c e power" of the s t a t e 3 though without precise boundaries, should be enacted i n good faith, and needed an "appropriate and d i r e c t connection" with an end — such as the protection of the health, l i f e or property of the c i t i z e n s . However, he repeated that while the due process clause was not designed to i n t e r f e r e with the power of the State, the State cannot "unduly" i n t e r f e r e with the r i g h t s of the c i t i z e n 2 0 ^ . For Harlan, U.3"a large d i s c r e t i o n i s n e c e s s a r i l y vested i n the l e g i s l a t u r e " , to determine ...not only what the in t e r e s t s of the p u b l i c require, but what measures are necessary f o r the protection of such i n t e r e s t s 2 ^ 1 . Consequently the te s t would d i f f e r from the " s t r i c t s c r u t i n y " t e s t . Eor Mr. Just i c e Harlan, So long as there are reasonable grounds f o r b e l i e v i n g that i t i s so (detrimental to health) i t s decision upon t h i s subject cannot be reviewed by the federal c o u r t s 2 Thus, the end could not be reviewed when the l e g i s l a t u r e acted upon "reasonable grounds". The court could only review i f there were no "reasonable grounds". 200. See 198 U.S. 45 (1905), at 65. 201. Td., at 66. 202. Tbid.. Fundamental rights, were subject to "reasonable conditions" prescribed f o r the p u b l i c good. These conditions were not subject to review, unless they were "beyond question, p l a i n l y and palpably i n ex-^  203 cess of l e g i s l a t i v e power" . The courts would overturn a law when the means had "no r e a l and s u b s t a n t i a l r e l a t i o n " to the end, or was "beyond a l l question, a p l a i n , palpable invasion of rights secured by 204 the fundamental law" . That t e s t had nothing to do with the "wisdom" of the p o l i c y . The learned judge said: I f the means employed to that end (understood as a proper purpose) although not the wisest or best, are yet not p l a i n l y and palpably unauthorized by law, then the court cannot i n t e r f e r e 2 ^ _ Then the minority applied those p r i n c i p l e s to the maximum-hours statute. Mr. J u s t i c e Harlan found that i t was enacted to protect the h e a l t h of the bakers. However he did not discuss the question of whether those employees needed such protection. "Whether or not t h i s be wise 206 l e g i s l a t i o n i t i s not the province of the court to i n q u i r e " . The law was based on two grounds. These grounds sounded "reasonable", therefore, the end was j u s t i f i e d . Mr. J u s t i c e Harlan turned next to the question of whether the means•had a " r e a l and s u b s t a n t i a l r e l a t i o n " to that end. I t was j u d i -c i a l l y known that the number of hours had been a subject of serious 203. See 198 U.S. 45 (1905), at 68. 204. Ibid. 2Q5. Ibid. 206. Id., at 69. 68. consideration by those Having s p e c i a l knowledge of h e a l t h laws. He gave some•statistics-to show that there was a r e l a t i o n between health and such factors as the number of hours worked. It was impossible to say that there was no " r e a l or substantial r e l a t i o n " between the means and the end. The statute had an,appropriate and d i r e c t connection with the protection of the bakers' employees' health. It was not u t t e r l y unrea-sonable and extravagant nor wholly a r b i t r a r y . Obviously the question of whether s i x t y hours a week was wise could be debated. However, the 207 court was not the appropriate forum f o r such a discussion The. t h i r d opinion was written by Mr. J u s t i c e Holmes. He d i d not r e j e c t the d e f i n i t i o n of " l i b e r t y " as including the "freedom of con-t r a c t " . But he said that the word " l i b e r t y " was perverted when i t (was) 208 held to prevent the n a t u r a l outcome of a dominant opinion" . For the judge, t h i s case was decided "upon an economic theory which a large part 209 of the country does not e n t e r t a i n " . "The c o n s t i t u t i o n " he s a i d , " i s 210 not intented to embody a p a r t i c u l a r economic theory" Mr. J u s t i c e Holmes agreed with the proposition that the State must use i t s "police power" in a way which i s "reasonable". But h i s 207. The majority had s a i d : "The connection...is too shadowy... I f the man works ten hours a day i t . i s a l l r i g h t , i f ten and a h a l f or eleven h i s h e a l t h i s i n danger... This we think, i s unrea-sonable and e n t i r e l y a r b i t r a r y . . . " Id., at 62. 208. Id., at 76. 209. Id., at 75. 210. Ibid. 69. test i s that the Fourteenth Amendment can void a statute when .. . i t can be s a i d that a r a t i o n a l and f a i r man neces-srari Ty would admit that the statute proposed would i n f r i n g e fundamental p r i n c i p l e s as. they have been un-derstood by the t r a d i t i o n s of our people and our law ...A reasonable man might think i t a proper measure on the score of the h e a l t h . . . 2 H In short, the Lochner case was a "substantive due process" case which succeeded. The judges agreed that the l e g i s l a t u r e could not pass any law which was not reasonable. The three judgments agreed that i f such were the case,, the statute should be void. Their disagreement however l a y i n the f a c t that the standard of " r e a s o n a b i l i t y " i s as vague as due process I t s e l f . Which t e s t would be the proper one? Three opi -nions, three t e s t s . The f i r s t t e s t , applied by the majority, requires both an appro-p r i a t e and legitimate end. The majority inquired whether the bakers needed p r o t e c t i o n . They concluded that such was not the case. Moreover the means needed a more d i r e c t r e l a t i o n to the end. With those p r i n c i -ples: i n mind, the judges were i n v i t e d to control the wisdom of the l e g i s l a t i o n . Thus I have c a l l e d t h i s standard, the " s t r i c t s c r u t i n y " t e s t . Mr. Ju s t i c e Harlan held that the end was legitimate i f i t was based on "reasonable grounds". The means should have a " r e a l and sub-s t a n t i a l r e l a t i o n " to the end but did not have to be the wisest or the 211. 198 U.S. 45 (1905), at 76. Emphasis added. 70. best way to. achieve i t . For the. purpose of analysis, I have c a l l e d t h i s standard the "Harlan" t e s t . L a s t l y , Mr. J u s t i c e Holmes proposed that a statute should be v o i d only when, i t can be said that no "reasonable man" would think that i t i s a proper measure f o r the end. I have c a l l e d t h i s test the " r a t i o n a l b a s i s " t e s t . That case showed a gradation from the " r a t i o n a l b a s i s " t e s t , allowing j u d i c i a l review, to the " s t r i c t s c r u t i n y " t e s t . The f i r s t t e s t is: based on the doctrine of j u d i c i a l r e s t r a i n t , the second on the 212 doctrine of j u d i c i a l activism . During the whole period, from 1905 to 1937, the court was divided between the advocates of r e s t r a i n t and the advocates: of activism. These two approaches created the controversy that marked the Lochner Era. 3. A f t e r Lochner The next case dealt with a Nebraska Statute requiring bread sold in quantities to maintain a s p e c i f i e d weight twenty-four hours a f t e r baking and allowing a tolerance i n excess weight of two ounces 213 per pound. It was challenged i n Burns Baking Co. v. Bryan.(1924) Mr. J u s t i c e Butler speaking f o r the majority, applied the s t r i c t s c r u t i n y t e s t : 212. See Novak., "Economic Activism and Restraint", i n Halpern and Landj Supreme Court Activism and Restraint, Lexington: Lexing-ton Books, 1982. 213. 264 U.S. 504 (1924). A State may not, under the guise of protecting the p u b l i c , a r b i t r a r i l y i n t e r f e r e with pr i v a t e business or p r o h i b i t lawful occupations or impose unreasonable  and unnecessary r e s t r i c t i o n s upon them 2 1 4. Consequently i t was the r o l e of the court to determine whether the statute had a."reasonable r e l a t i o n to the protection of purchasers of 215 bread" . Then the judge inquired i n t o the "wisdom" of the statute. He concluded that the regulation was d i f f i c u l t to perform, and "unrea-sonable". The statute was not a sanitary measure but merely a control of weights, The•designated maximum was "not necessary" f o r the purpose was: not calculated to effectuate i t , and was " e s s e n t i a l l y unreasonable and a r b i t r a r y " ^ Mr. Ju s t i c e Brandeis dissented. He s a i d that "with the wisdom of the l e g i s l a t u r e we have, of course, no concern". He proposed the following t e s t : the court must determine whether the p r o h i b i t i o n of excess weights can reasonably be deemed necessary... (and) appropriate means... (and to be) p r a c t i c a b l e 2 . The d i s t i n c t i o n i s obvious. A means which can be "reasonably deemed necessary" i s d i f f e r e n t from a statute which i s found to be "necessary" Mr. Justice Holmes * a'greed' with that" dissent., Therefore the R"Brandeis " 214. 264 U.S. 504 (1924), at 513. Emphasis added. 215. Ibid. 216. Id., at 517. 217. Id., at 519. Emphasis added. t e s t appears to be close to the " r a t i o n a l b a s i s " t e s t as stated i n the Lochner case. However, Mr. Ju s t i c e Brandeis d i d inquire into the f a c t s . The i n q u i r y i t s e l f can be interpreted as a review of "necessity". But, the, learned judge asked only i f i n view of these f a c t s : Can i t be sa i d . . . that the l e g i s l a t o r s had not rea- sonable cause to believe that p r o h i b i t i o n of excess weight was n e c e s s a x y ? Z i 8 . , Had no reason to believe that t h i s p r ovision i s —'—' ; 9 1 Q calculated to effectuate the purpose? 1 Had no reason to believe that the excess weight pro-v i s i o n would not unduly burden the business of making and s e l l i n g b r e a d ? 2 20 > L a s t l y , the dissenting judge said of the opinion of the majority that t h e i r decision was ...an exercise of the powers of a super-legislature — not the performance of the c o n s t i t u t i o n a l function of j u d i c i a l review22l. These cases were examples i n which the court applied " s t r i c t 222 s c r u t i n y " t e s t 218. 264 U.S. 504 (1924), at 527. Emphasis added. 219. Id., at 530. Emphasis added. 220..' 'Id., at 533. Emphasis added. 221. Ld., at 534. 222. Many other statutes were, struck down on the i m p l i c i t or express contention that the l e g i s l a t i o n s were not wise. See e.g. Adams v. Tarirter- 244 U.S. 590 (1906), where a statute p r o h i b i t i n g c o l l l e c t i o n of fees from workers by employment agencies was i n v a l i -dated because the court thought that there was "nothing inherently immoral or dangerous to p u b l i c welfare i n acting as a paid repre-sentative of another to f i n d a p o s i t i o n i n which he can earn an However, the Lochner Era i s not characterized only by the t e s t which would control the wisdom of the law. Many statutes were struck down'on the ground that the l e g i s l a t u r e did not have the power to pass them with no regard to the " r e a s o n a b i l i t y " of the statute. A good example of that proposition i s found i n Adair v. US 223 (1908) , Mr. J u s t i c e Harlan quoted Lochner and s a i d : Although there was a difference of opinion i n that case among the members of the court as to c e r t a i n propositions, there was no disagreement as to the general proposition that there i s a l i b e r t y of con-t r a c t which cannot be unreasonably i n t e r f e r e d with by l e g i s l a t i o n ^ ^ . By quoting Lochner, Mr. J u s t i c e Harlan adopted the t e s t which asked: Is i t a f a i r , reasonable,, and appropriate exercise of the p o l i c e power of the State, or i s i t an un-reasonable, unnecessary, and a r b i t r a r y interference with the r i g h t of the i n d i v i d u a l to his personal l i b e r t y ? 2 2 5 honest l i v i n g . On the contrary, such service i s u s e f u l , commend-able and i n great demand", at 593. This " s t r i c t s c r u t i n y " t e s t appears to have been one of the primary objections to substantive due process. See e.g. A.F. of L. v. American Sash and Door Co., 335 U.S. 538 (1949), (Frankfurter, J . ) ; Boudin,, Government by  J u d i c i a r y , New York: Russell § Russell, 1968. 223. 208 U.S. 161 (1908). 224. Id., at 174. 225. Ibid. 74. However, while this- t e s t suggests- a review of the "wisdom" of the law, i n t h i s case such an i n q u i r y was not necessary. The Congress, had adopted a law which outlawed "yellow dog contracts" by which the employee agrees not to join, a labor, union. The statute made i t a "crime" f o r an em-ployer to discharge an employee simply because of h i s membership i n a labor.' union. Mr. J u s t i c e Harlan held that t h i s statute i n t e r f e r e d with the freedom of contract. Therefore the act was inconsistent with the F i f t h Amendment. However, i t was argued before the Court that Congress could enact such an act under i t s power to regulate i n t e r s t a t e commerce without regard to any question of personal l i b e r t y a r i s i n g under the F i f t h Amendment. Consequently the Court inquired i n t o the scope of the power to regulate commerce. Mr. J u s t i c e Harlan s a i d that Congress had a large d i s c r e t i o n in the s e l e c t i o n of the Means to be employed i n the regulation of i n t e r s t a t e commerce. However those means had to be r e l a t e d to the commerce regulated. In this case, the labor organization did not have such a r e l a t i o n . "Labor organizations have nothing to do with i n t e r s t a t e 226 commerce, as such" . He then concluded that there was no connection between an employee's membership i n a labor union and h i s carrying on of i n t e r s t a t e commerce. Congress thus had no authority to make i t a crime against the United States f o r an employer to discharge an employee 227 because of such membership . The Court s a i d that the power to regulate 226. 208 U.S. 161 (1908), at 178. 227. In Canada the court held that labor laws was a p r o v i n c i a l matter but that the federal government can regulate labor r e l a t i o n s within its- l e g i s l a t i v e authority. See Toronto E l e c t r i c Commissioners v. Snider (1925) A.C. 396 and Stevedores Reference (1955) S.C.R. 529. Therefore each government can enforce i t s own labor law. However 75. commerce was broad but could not be repugnant to the due process clause which, p r o t e c t e d the i n d i v i d u a l r i g h t to l i b e r t y and property. This case looks l i k e Lochner's because the Court h o l d that the -means — to make i t a crime f o r an employer to discharge an employee on the ground of h i s membership i n a labor union — was not r e l a t e d to a power of the Congress — r e g u l a t i o n of commerce. In Lochner the means — to impose maximum hours- f o r labor i n bakeries — was not r e l a t e d to the power of a s t a t e — h e a l t h . However A d a i r has an important d i s t i n c -t i o n . In A d a i r the Court d i d not i n q u i r e whether or not the means was necessary or appropriate to promote a l e g i t i m a t e end i n t h i s p a r t i c u l a r case.. In Lochner, i t was through t h i s question that the Court concluded that the law was not to promote a l e g i t i m a t e end. In other words, i n Adair Mr. J u s t i c e Harlan d i d not seem to look at the "wisdom" of the law whereas: i n Lochner the Court s c r u t i n i z e d t h i s "wisdom". Consequently A d a i r i n d i c a t e d t h a t Congress could never adopt such a law because a r e g u l a t i o n of an employee's membership i n labor o r g a n i z a t i o n had nothing to do w i t h a power to re g u l a t e i n t e r s t a t e commerce. On the other hand, i t appears from Lochner that a s t a t e could enact a law which f i x e s a maximum number of hours i n bakeries — or somewhere"else — i f i t i s proved — from s t a t i s t i c s or otherwise — that\t-her health-"of - .the employees i f i t appears t h a t a P r o v i n c i a l l e g i s l a t u r e through i t s general competence over labor law, has adopted a p r o h i b i t i o n whose p i t h and substance i s the c r e a t i o n of a new crime, the law w i l l be v o i d . On the other hand the f e d e r a l government could create such a crime. In the United S t a t e s , the Congress could not create i t . The case i s therefore not very r e l e v a n t i n Canada. 76. or t h e - p u b l i c was: i n danger. A d a i r d e a l t w i t h the scope of the r e g u l a -t i o n of i n t e r s t a t e commerce, whe re as Lo chne r d e a l t w i t h the "wisdom" o f the, means i n a p a r t i c u l a r case. An i l l u s t r a t i o n of t h i s p r o p o s i t i o n i s found i n the case M u l l e r 228 v. Oregon (1908) three years a f t e r Lochner. In t h i s case the Court had before i t an Oregon s t a t u t e l i m i t i n g the number of hours women were allowed to work to s i x t y hours a week or ten hours a day. The Court sustained the s t a t u t e . Unanimously the judges r e f e r e d to Lochner v. 229 New York "without questioning i n any respect the d e c i s i o n i n Lochner" The Court o n l y d i s t i n g u i s h e d both cases. For the judges i t appeared that the women needed p r o t e c t i o n while the men working i n the bakery d i d not. I t was necessary to p r o t e c t the women from excessive work which would threaten t h e i r e s s e n t i a l reproductive functions.' The p o i n t i n t h i s case which allows the d i s t i n c t i o n between Lochner and M u l l e r was supported by two pages of l e g a l arguments and oyer a hundred pages devoted to reviewing s c i e n t i f i c opinions as to the 230 d e t r i m e n t a l e f f e c t that long hours of labor had on women . The Court t o o k . j u d i c i a l cognizance of these, matters and was convinced that the s t a t u t e was j u s t i f i e d . Therefore the States; had to be prepared to show a s u f f i c i e n t evidence to convince the Court that a l e g i s l a t i o n was a proper e x e r c i s e 228. 208 U.S. 412 (1908) . . 229. I d . , at 423. 230. I t i s known as the Brandeis B r i e f . of i t s police, power. It seemed henceforth that the Court would sustain a statute only where: evidence would convince i t that the l e g i s l a t i o n was "wise". Another way to put i t would be to say that the freedom of con-t r a c t w i l l be protected or not according to s c i e n t i f i c opinions and s t a t i s t i c s . In t h i s way, the Supreme Court of the United States i n Bunting 231 y. Oregon (1917) upheld a statute which l i m i t e d a l l workers i n i n -dustry, with c e r t a i n exceptions, to ten hours a day. Mr. J u s t i c e McKenna wrote: There i s a contention made that the law, even re-garded as regulating hours of service, i s not e i t h e r necessary or us e f u l " f o r preservation of the health of employees i n m i l l s , f a c t o r i e s , and manufacturing establishments". The record contains no facts to support the contention...232_ This could be interpreted to mean that i f facts supporting the proposition that the p o l i c y was not "necessary" had been i n the record, the Court would have struck down the statute. At the very l e a s t , the Court would have inquired i n t o the "necessity" of such l e g i s l a t i o n . That can be construed as a recognition that the "wisdom" t e s t was under-lyi n g the decision though the Court d i d not inquire into the "wisdom" 233 of that law. Otherwise, the case overruled Lochner "sub s i l e n t o " 231. 243 U.S. 426 (1917). 232. Id., at 438. 233. . See e.g. Mr. J u s t i c e Taft i n Adkins v. Children's Hospital 261 U.S. 525 (1923), at 564. Such, was "substantive due process" before 1937. To summer!ze, 234 i.t was a substitute f o r natural law . It required the l e g i s l a t u r e s to exercise t h e i r own sphere of authority i n accordance with the cons-t i t u t i o n . The Court established a t e s t i n three steps: the end must Be, legitimate; the means must have a r e a l and substantial r e l a t i o n to a legitimate end; and the fundamental r i g h t s must not be i n f r i n g e d . But often through the " s t r i c t s c r u t i n y " standard the Court reviewed the 235 "wisdom" of a given p o l i c y underlying a law . The "necessity" of a measure, i t s appropriateness, and even i t s reasonableness were very subjective and led the Supreme Court to play the r o l e of a "super Legis-2 237 l a t u r e " which r e f l e c t e d the idea of a majority of the bench c) The revolution of 1937 A f t e r 1937, the Supreme Court of the United States changed i t s 234. See Schwartz, The Law in America, A History, New York: McGraw-H i l l Book Co., 1974, at 49. 235. See Schwartz, C o n s t i t u t i o n a l Law, A Textbook, New York: MacMil-lan Publishing Co., 1979, at 205. It should be noted, however, that the m a j o r i t y i n Lochner s a i d : "This i s not a question of s u b s t i t u t i n g the judgment of the Court f o r that of the L e g i s l a -ture. I f the act Be within the power of the state i t i s v a l i d . " 198 U.S. 45 (1905), at 56-57. When the Court ahandoned the " s t r i c t s c r u t i n y " t e s t i n the 1930's, the judges who disagreed with t h i s departure s a i d : "But p l a i n l y , I think, t h i s court have regard to the wisdom of the enactment." See Nebbia v. New York, 291 U.S. 502 (1934), at 556. 236. See Brandeis, J . , dissenting, i n Burns Baking Co. v. Brian, 264 U.S. 504 (1924), at 534. 237. North Dakota Board of Pharmacy v. Snyder's Drug Stores, 414 U.S. 156 (1973), at 164. 79. understanding of j u d i c i a l review under the due process clauses . The judges, adopted two t e s t s of j u d i c i a l review depending on whether or not a fundamental r i g h t was: at stake i n a given statute. They also r e a l i z e d that the s o - c a l l e d "freedom of contract" was not a fundamental r i g h t protected by the c o n s t i t u t i o n . That was: a r e a l c o n s t i t u t i o n a l switch. In-the 19th century, the concept of " l i b e r t y " i n the due process clause, then covered the "freedom of contract". That freedom was interpreted very broadly. In 239 Adair v. US (1908) , Mr. J u s t i c e Harlan said that, The r i g h t of a person, to s e l l his labor upon such terms as he deems proper i s , i n i t s essence, the same as the r i g h t s of the purchaser of labor to prescribe the conditions upon which he w i l l accept such labor from the person o f f e r i n g to s e l l . .. In a l l such p a r t i c u l a r s the employer and employee have e q u a l i t y of r i g h t s , and any l e g i s l a t i o n that d i s -turbs: that e q u a l i t y i s an a r b i t r a r y interference with the l i b e r t y of contract which no government can l e g a l l y j u s t i f y i n a free land 240. In Coppage v. Kansas C1915) , Mr. J u s t i c e Piney sa i d : Included i n the r i g h t of personal l i b e r t y and the r i g h t of p r i v a t e property — partaking of the nature of each — i s the r i g h t to make contracts f o r the a c q u i s i t i o n of property. Chief among such contracts i s that of personal employment, by which labor and 238. See Nebbia v. New York, 291 U.S. 502 (1934); West Coast Hotel v. Pa r r i s h , 300 U.S. 379 (1937). 239. 208 U.S. 161 (1908). 240,. Id. , at 174-175. 241. 236 U.S. 1 (1915). 80. other services; are exchanged f o r money or other forms: of property. I f this- r i g h t he struck down or arbi-. t r a r i l y i n t e r f e r e d with, there i s a sub s t a n t i a l im-pairment of l i b e r t y i n the long-established c o n s t i -t u t i o n a l sense. The r i g h t i s as e s s e n t i a l to the laborer as: to the c a p i t a l i s t , to the poor as to the - t 242 r i c h ; ... . 243 In Adkins v. Children's Hospital (1923) , Mr. Just i c e Suther-land s a i d that""freedom of contract i s . . . the general rule and r e s t r a i n t _ ,,244 the exception" However, 1937 was part of the "New-Deal" period. Many laws were enacted to regulate the economy, which had been l a i d low by the depres-sion. The broad d e f i n i t i o n of "freedom of contract" was contrary to the avowed purpose of the New-Deal program. The Court chose to change course. 245 In the case West Coast Hotel v. P a r r i s h (1937) , a statute p r o h i b i t e d wages below a certain l e v e l deemed adequate f o r the mainte-nance of women and minors. The standards of wages and work conditions were determined by a commission. P a r r i s h was a woman who claimed the difference .between the wage she was rec e i v i n g and the le g a l minimum wage. The Hotel argued that such a statute was against the "freedom of con-t r a c t " protected i n the due process clause. Mr. Just i c e Hughes responded: 242. 236 U.S. 1 (1915), at 14. 243. 261 U.S. 525 C1923). 244. Td., at 546. 245. 300 U.S. 379 (1937). What i s t h i s freedom? The c o n s t i t u t i o n does not speak of freedom of contract. It speaks of l i b e r t y and p r o h i b i t s the deprivation of l i b e r t y without due process of law 246. That was a "revolution". Soon the l e g i s l a t u r e s could pass any regula-t i o n though i t l i m i t e d the freedom of contract. The Court thus abandoned the " s t r i c t s c r u t i n y " test applied throughout the Lochner Era (1900-1937), because i t f e l t that i t had no j u r i s d i c t i o n to enforce a r i g h t not protected by the written Constitu-247 t i o n . In U.S. v. Carolene Products Co. (1938) , the judges held that any law which deals withethe "freedom of contract" — generally dealing with economic matters — i s v a l i d unless there i s no r a t i o n a l r e l a t i o n -248 ship between the means and a legitimate end of government . They applied a presumption of v a l i d i t y to any law which was r a t i o n a l l y sup-ported by f a c t s . This new test i n regard to economic regulations can be c a l l e d the " r a t i o n a l b a s i s " t e s t . The Court would not " s t r i c t l y " s c r u t i n i z e a law which did not v i o l a t e fundamental r i g h t s . Thus the 249 wisdom of such a law would no longer be reviewed 246. 300 U.S. 379 (1937), at 391. 247. 304 U.S. 144 (1938). 248. In the post-1937 period, they adopted the test suggested by Ju s t i c e Holmes i n his dissent i n Lochner v. New York which was the t e s t of the "reasonable man". See Day-Brite Lighting Inc. v. Missouri, 342 U.S. 421 (1952). 249. The courts review a law only where i t i s demonstrably a r b i t r a r y or i r r a t i o n a l . See Duke Power-Co. v. Carolina Environmental  Study.Group Inc., 438 U.S. 59 (1978), at 83-84. 82. In West Coast Hotel v. Parrish. (1937), Mr. J u s t i c e Hughes de-fin e d " l i b e r t y " : L i b e r t y i n each of i t s phases has i t s h i s t o r y and connotation. But the l i b e r t y safeguarded i s l i b e r t y i n a s o c i a l organization which requires the protec-t i o n of law against the e v i l s which menace the health, safety, morals and welfare of the people That new d e f i n i t i o n of " l i b e r t y " had i t s consequences. Liberty i n a " s o c i a l organization" required the l e g a l protection against c e r t a i n evils-. I t therefore r a t i f i e d the legitimacy of the intervention of the * * 2 5 1 state The m i n o r i t y i n West Coast Hotel rejected t h i s new approach. The r u l e which included Freedom of Contract within the concept of 252 " l i b e r t y " was "so well s e t t l e d as to be no longer open to question" Their understanding followed the conception set out i n Adair, Coppage and Adkins. With the new d e f i n i t i o n , " l i b e r t y " would become a " s o c i a l " r i g h t rather than an " i n d i v i d u a l " r i g h t . A government which acted i n favour of s o c i a l r i g h t s , n e c e s s a r i l y respected the "due process" requi-rements. 250. 300 U.S. 379 (1937), at 391. 251. I t can be c a l l e d a " p o s i t i v e state". See M i l l e r , The Modern  Corporate State, Westport: Greenwood Press, 1976, at 91. 252. 300 U.S. 379 (1937), at 406. Two weeks a f t e r that case, the court had the occasion to restate t h i s new approach. In National Relation Board v. Jones and Laughlin 253 Corp. (1937) the court upheld the power,of Congress to compel em-ployers to permit t h e i r employees to organize and to bargain with them c o l l e c t i v e l y . The company argued that i t was against the "freedom of contract". Mr. J u s t i c e Hughes said, f o r the majority, that i f there existed a freedom of contract, f o r the employer: Employees have t h e i r c o r r e l a t i v e r i g h t to organize for the purpose of securing the redress of g r i e -vances and to promote agreements with employers r e l a t i n g to rates of pay and conditions of work... Restraint f o r the purpose of preventing and unjust interference with that r i g h t cannot be considered a r b i t r a r y or c a p r i c i o u s 2 5 ^ . The statute, s a i d Mr. J u s t i c e Hughes, ...goes no further than to safeguard the r i g h t of employees to s e l f - o r g a n i z a t i o n and to s e l e c t repre-sentatives of t h e i r own choosing f o r c o l l e c t i v e bargaining or other mutual protection without a r e s t r a i n t or coercion by t h e i r employer that i s a  fundamental r i g h t 2 5 5 . So the l e g i s l a t u r e could protect that r i g h t from government as well as p r i v a t e party interference. 253.. 301 U.S. 1 (1937). 254. Id., at 44. 255. Id., at 33. Emphasis added. 84. d) Substantive due.process, a f t e r 1937 1. The r a t i o n a l basis test With the 1937 switch., the court became more " r e s t r a i n t i s t " about 256 257 economic issues . Some cases even suggested t o t a l abstinence . The 258 decline of "freedom of contract" could no longer be open to question The due process clause now sounded l i k e a very l a s t r e s o r t . However, this? decline i n i t s use, was p a r a l l e l to the b i r t h of another promising clause: the equal protection clause. Its standard was the equality between classes. I t required that governmental c l a s s i f i c a t i o n s as bet-ween groups have a r a t i o n a l r e l a t i o n s h i p to a legitimate government end. That t e s t was the same as the one under due process, with the sole d i s t i n c t i o n that i t . was the c l a s s i f i c a t i o n which had to be r a t i o n a l l y r e l a t e d to the end. Recourse to the due process clause was necessary only where a statute d i d not c l a s s i f y people. However, those two grounds- — the equal protection clause and the due process clause — could 259 e a s i l y protect the same l i b e r t y 256. E.g. U.S. v. Carolene Products Co., 304 U.S. 144 (1938). 257. E.g. Ferguson v. Skrupa, 372 U.S. 726 (1963). 258. E.g. U.S. v. Arby, 312 U.S. 100 (1941). 259. The S t e r i l i z a t i o n cases are good examples. In 1927 (Lochner Era) a statute providing compulsory s t e r i l i z a t i o n f o r "imbeciles" was upheld. I t was a v a l i d exercise of the police tpower.. The'due process of law was not offended. "Three generations of imbeciles are. enough." The court found t h a t . i t was a reasonable statute. Moreover, i t seems that they also found i t wise. See Buck v. B e l l , 274 U.S. 200 (1927). In 1942 (post 1937) the challenge was under the equal protection clause. The majority found no r a t i o n a l basis to j u s t i f y the c l a s s i f i c a t i o n between those who have to be s t e r i -l i z e d and those who do not. See Skinner v. Oklahoma, 316 U.S. 535 (1942). 85. 260 In Railway Express, Agency v. New York (1949) , an ordinance prevented owners o f d e l i v e r y v e h i c l e s from p l a c i n g advertisements on the outside of t h e i r v e h i c l e s unless the advertisement was f o r the owner's business. The1 court upheld the s t a t u t e because the c l a s s i f i c a t i o n had r e l a t i o n to the purpose f o r which i t was made and d i d not contain the k i n d of d i s c r i m i n a t i o n against which the equal p r o t e c t i o n a f f o r d s pro-t e c t i o n . Mr. J u s t i c e Jackson s a i d that Governments .. .must e x e r c i s e t h e i r powers so as not to d i s c r i -minate between t h e i r i n h a b i t a n t s except upon some reasonable d i f f e r e n t i a t i o n f a i r l y r e l a t e d to the object of r e g u l a t i o n 2 6 1 . The court d i d s t r i k e down a s t a t u t e under the equal p r o t e c t i o n 262 c l a u s e , i n Money v. Doud (1957) . The l e g i s l a t i o n r e q u i r e d currency exchange companies to meet c e r t a i n requirements before being granted a l i c e n c e . American Express was excluded by name. Mr. J u s t i c e Burton s a i d : The Equal P r o t e c t i o n Clause of the Fourteenth Amend-ment does not take from the s t a t e the power to c l a s -s i f y i n the adoption of p o l i c e laws, but admits of the e x e r c i s e of a wide scope of d i s c r e t i o n i n that regard, and avoids what i s done only when i t i s without any reasonable b a s i s and therefore i s p u r e l y a r b i t r a r y . . . One who a s s a i l s the c l a s s i f i c a t i o n i n such a law must c a r r y the burden of showing that i t does not r e s t upon any reasonable b a s i s but i t i s e s s e n t i a l l y arbitrary^63-. 260. 336 U.S. 106 (1949). 261. I d . , at 112. 262. 354 U.S. 457 C1957). 263. J_d_., at 463. Emphasis added. 86. The judge then looked at the purpose and at the c l a s s i f i c a t i o n . He found that "the discrimination i n favour of American Express Company does not 264 conform to that purpose" . For the court there was only a "remote 265 r e l a t i o n s h i p " . The statute was ruled void I mention those two examples to i l l u s t r a t e that the court did not.end j u d i c i a l review of economic regulations under the " r a t i o n a l b a s i s " t e s t . There was s t i l l a good recourse to that argument. However, that t e s t was, argued under the equal protection clause rather than the A , 2 6 6 due process clause It should not be thought from what I had said that, a f t e r 1937, the court never talked about " r a t i o n a l b a s i s " i n considering "due, pro-cess of law" i n the context of business regulation. That approach was 267 reaffirmed i n Williamson v. Lee Optical of Oklahoma (1955) . Mr. J u s t i c e Douglas repeated the p r i n c i p l e s underlying the due process clause,. He s a i d : The law need not be in every respect l o g i c a l l y con-s i s t e n t with i t s aims to be c o n s t i t u t i o n a l . It i s enough that there i s an e v i l at hand f o r correction, and that i t might be thought that the p a r t i c u l a r l e g i s l a t i v e measure was a r a t i o n a l way to correct it268. 264. 354 U.S. 457 (1957), at 466. 265. This decision has probably been overruled i n C i t y of New Orleans v. Duke, 427 U.S. 297 (1976), at 306. 266. For a Canadian importation of t h i s t e s t see McKay v. 0^  (1980) 2 S.C.R. 370, (Mclntyre, J . ) . 267. 348 U.S. 483 (1955). 268. Id., at 487-488. 87. Since there was a r a t i o n a l h a s i s , the s t a t u t e was s u s t a i n e d . 269 The same reasoning had been used i n Wlckard v. F i l b o r n (1942) where the A g r i c u l t u r a l Adjustment Act p r o v i d i n g wheat marketing quotas was challenged under the due process clause and under the commerce clause. The court j u s t i f i e d the ' ' r a t i o n a l i t y " u n d erlying the l e g i s l a t i o n . Mr. J u s t i c e Jackson then concluded: This record leaves us i n no doubt that Congress may  p r o p e r l y have considered that wheat consumed on the farm where grown, i f w h o l l y outside the scheme of r e g u l a t i o n , would have a s u b s t a n t i a l e f f e c t i n de- f e a t i n g and o b s t r u c t i n g i t s purpose to s t i m u l a t e trade t h e r e i n at increased p r i c e s ^ O . I t would be redundant to give more examples. J u d i c i a l review under the i d e a of "substantive due process" continued to t e s t l e g i s l a -t i o n at l e a s t through the t e s t of equal p r o t e c t i o n . The due process clause i t s e l f would h a r d l y ever be a ground to overturn the l e g i s l a t i o n . I t appeared to have been used more as an a l t e r n a t i v e ground t o c o n t r o l socio-economic r e g u l a t i o n s , than as an autonomous recourse. Where the equal p r o t e c t i o n clause could apply there was no need to discuss whether or not the due process clause was v i o l a t e d . Such was the s i t u a t i o n i n the famous case Brown v. Board of 271 Education (1954) . I t was unanimously h e l d that r a c i a l l y segregated p u b l i c s c h o o l i n g v i o l a t e d the equal p r o t e c t i o n clause of the Fourteenth 269. 317 U.S; 111 (1942). 270. I d . , at 128-129. Emphasis added. I t should be noted that t h i s passage comes from a d i s c u s s i o n about the power to r e g u l a t e commerce. 271. 347 U.S. 483 (1954). 88. 272 Amendment . Mr. Ju s t i c e Warren s a i d that t h i s ground (equal protect tion) "makes unnecessary any discussion whether such segregation also 273 v i o l a t e s the "due process clause of the Fourteenth Amendment" . That argument was: an a l t e r n a t i v e . The court did not suggest that i t was an argument which no longer had any v a l i d i t y . On the contrary the Supreme Court expressly used the due process 274 clause when i t became necessary. In B o i l i n g v. Sharpe (1954) the v a l i d i t y of segregation i n the p u b l i c schools of the D i s t r i c t of Colum-b i a was challenged. There was a l e g a l problem. This D i s t r i c t was not a part of any State. Therefore the equal protection clause of the Fourteenth. Amendment did not apply to i t . Moreover the F i f t h Amendment which, was applicable to that D i s t r i c t did not contain an equal protec-t i o n clause. The p e t i t i o n e r s alleged the only argument a v a i l a b l e : the denial of "due process of law" under the F i f t h Amendment. In t h i s d e c i s i o n , Mr. J u s t i c e Warren recognized that there was a " l i b e r t y " at stake: Although, the Court has: not assumed to define " L i -berty" with, any great p r e c i s i o n , that term i s not confined to mere freedom from b o d i l y r e s t r a i n t . L i b e r t y under law extends to the f u l l range of con-duct which the i n d i v i d u a l i s free to pursue and i t cannot be r e s t r i c t e d except f o r a proper govern-mental o b j e c t i v e 2 ^ . 272. See Perry, The Constitution, the Courts, and Human Rights, New Haven: Yale U n i v e r s i t y Press, 1982, at 1 and at 167, note 8. 273. 347 U.S. 483 (1954), at 495. 274. 347 U.S. 497 (1954). 275. Id., at 499-500. Then he turned to the " r e a s o n a b i l i t y " of the l e g i s l a t i o n which had to pass the " r a t i o n a l b a s i s " t e s t . He said: Segregation i n p u b l i c education i s not reasonably r e l a t e d to any proper governmental objective, and thus i t imposes on negro children of the D i s t r i c t of Columbia a burden that constitutes an a r b i t r a r y deprivation of t h e i r l i b e r t y i n v i o l a t i o n of the Due Process C l a u s e 2 ^ . This case was a d i r e c t a p p l i c a t i o n of the due process clause. The Eourt i n v a l i d a t e d a l e g i s l a t i o n which d i d not meet the standard of " r e a s o n a b i l i t y " safeguarded i n the'"substantive due process". Tn Brown v. Board of Education, the equal protection clause was s u f f i c i e n t grounds. The opinion i n B o i l i n g v. Sharpe indicates that the court could have r e l i e d on the due process clause as well as on the equal protection clause in the Brown case. However, i t was not neces-sary. "Equal p r o t e c t i o n " and "due process" could give the same r e s u l t s 277 under i d e n t i c a l reasoning . For our purpose, which i s to show that j u d i c i a l review under "substantive due process" understood as a t e s t was not rejected, i t does not matter on what grounds a p a r t i c u l a r law i s challenged; i t i s the, reasoning behind i t which i s more important; Mr. J u s t i c e Warren explained the r e l a t i o n s h i p between those two clauses: 276. 347 U.S. 497 (1954), at 500. 277. In t h e i r famous a r t i c l e , Tusman and Tenbrock gave examples of cases where "the equal protection clause" i s placed i n opposition to the State's p o l i c e power i n a manner t y p i c a l of the use of "substantive due process". See "The Equal Protection of the Laws", 37 C a l i f . L. Rev. 341 (1949), at 362. The concept of equal protection and Due Process, both, stemming from our American i d e a l of f a i r n e s s , are not mutually exclusive. The "Equal Protection of the Laws" i s a more e x p l i c i t safeguard of p r o h i -b i t e d unfairness than "Due Process of Law", and, therefore, we do not imply that the two are always interchangeable phrases. But, as t h i s court has recognized, discrimination may be so u n j u s t i f i a b l e as to be v i o l a t i v e of due p r o c e s s 2 7 8 . 2. The s t r i c t s crutiny t e s t However, i t should not be thought that the " s t r i c t s c r u t i n y " test under "substantive due process" was: completely abandoned a f t e r 1937. On the contrary, s h o r t l y a f t e r the important s h i f t taken by the court over economic regulations i n 1937, the judges reaffirmed- that they would continue to s t r i c t l y s c r u t i n i z e a law which i n t e r f e r e d with "fun-279 damental r i g h t s " . The " s t r i c t s c r u t i n y " t e s t meant that the court would continue to c a r e f u l l y s c r u t i n i z e the f a c t u a l basis f o r a statute i n t e r f e r i n g with a "fundamental r i g h t " . The word " l i b e r t y " was broadly interpreted, i n c l u d i n g henceforth other substantive r i g h t s . These fun-damental r i g h t s are generally the F i r s t Amendment r i g h t s , the r i g h t to 280 281 282 association , the r i g h t to vote , the r i g h t to t r a v e l , the r i g h t 278. B o i l i n g v. Sharpe, 347 U.S. 497 (1954), at 499. 279. United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. 280. NAACP v. Alabama ex r e l . Patterson, 357 U.S. 449 (1958); Bates v. C i t y of L i t t l e Rock, 361 U.S. 516 (1960). 281. It i s also c a l l e d the r i g h t to p a r t i c i p a t e in the e l e c t o r a l pro-cess. See Harper v. V i r g i n i a Board of E l e c t i o n s , 383 U.S. 663 (1966); Carrington v. Rash, 380 U.S. 89 (1965). 282. Shapiro v. Thompson, 394 U.S. 618 (1969). 2 83 2 84 to privacy- and the r i g h t of fairness, i n the criminal process The majority- of the Supreme Court found that the Constitution guarantees 285 286 these r i g h t s . Therefore, a more stringent test i s j u s t i f i e d A f t e r 1937, the " s t r i c t s c r u t i n y " t e s t can be read as follows: Where a fundamental r i g h t i s at stake, the law must be necessary to promote a compelling and overriding i n t e r e s t of government. There w i l l be no presumption of v a l i d i t y . I f the law i s found not necessary or i f i t could have had a narrower scope or i f the government does not show a 287 compelling i n t e r e s t to pass i t , the court w i l l i n v a l i d a t e i t One of the best examples of the " s t r i c t s c r u t i n y " t e s t a f t e r 2 88 1937 was Griswold v. Connecticut (1965) . In that case a statute pro h i b i t e d the use of contraceptives by both married and single persons. Six opinions were written. Mr. J u s t i c e Douglas wrote the opinion f or the court but i t appears that only two judges f u l l y agreed with him. 283. This r i g h t i s not s p e c i f i c a l l y written i n the c o n s t i t u t i o n . In Griswold v. Connecticut, 381 U.S. 479 (1965), the majority held that i t came from the "penumbras" of several s p e c i f i c guarantees. For an example of t h i s r i g h t to privacy, see Boddie v. Connecticut, 401 U.S. 371 (1971); Loving v. V i r g i n i a , 388 U.S. 1 (1967); Roe v. Wade, 410 U.S. 113 (1973); Carey v. Population Services Inter- n a t i o n a l , 97 S. Ct. 2010 (1977). 284. See, f o r example, Douglas v. C a l i f o r n i a , 372 U.S. 353 (1963); Mayer v. Chicago, 404 U.S. 189 (1971). 285. See Murdock v. Pennsylvania, 319 U.S. 105 (1943), at 115. They are sometimes c a l l e d "preferred r i g h t s " . 286. See Thomas v. C o l l i n s , 323 U.S. 516 (1945), at 530. 287. See Griswold v. Connecticut, 381 U.S. 479 (1965). 288. Ibid. For him the r i g h t of "privacy" was- protected by the "penumbras formed 289 by emanations" of other s p e c i f i c guarantees . Mr. Ju s t i c e Douglas refused.to base h i s decision on the "substantive due process" approach. However, he applied a t e s t which i s closer to the " s t r i c t s c r u t i n y " t e s t i n the Lochner case than to the " r a t i o n a l b a s i s " t e s t . He said: A governmental purpose to control or prevent a c t i v i -t i e s c o n s t i t u t i o n a l l y subject to state regulation may not be achieved by means which sweep unnecessa- r i l y broadly and thereby invade the area of protected freedom?90. At the very l e a s t , what i s deemed "necessary" remained a subjective test which could necessitate i n q u i r y i n t o the wisdom of the law. Three other judges i n v a l i d a t e d the statute under the due pro-cess clause. Mr. Ju s t i c e Goldberg s a i d : Although I have not accepted the view that "due pro-cess" as used i n the Fourteenth Amendment includes a l l of the f i r s t eight amendments, I do agree that the concept of l i b e r t y protects those personal r i g h t s that are fundamental, and i s not confined to the s p e c i f i c terms of the B i l l of Rights... the concept of Libert y i s not.so r e s t r i c t e d and... i t embraces the r i g h t of m a r i t a l privacy though that r i g h t i s not mentioned e x p l i c i t l y i n the c o n s t i t u -tion...291.. What i s more i n t e r e s t i n g , howeverr,is h i s r e j e c t i o n of the " r a t i o n a l b a s i s " t e s t as applied to t h i s s o c i a l regulation. He said: 289. See Griswold v. Connecticut, 381 U.S. 479 (1965), at 484. 290. Id., at 485. Emphasis added. 291. Id. , at 486. Yet i f upon a showing of a slender basis of r a t i o n -ality', a law outlawing voluntary b i r t h control by married persons, i s v a l i d , then by the same reason-ing, a law r e q u i r i n g compulsory b i r t h control also would seem to be v a l i d . In my view, however, both types of law would u n j u s t i f i a b l y intrude upon rig h t s of m a r i t a l privacy. ..292. Mr. J u s t i c e Goldberg seems also close to the "wisdom" te s t . He said, that r i g h t s , ...may not be abridged by the state simply on a showing that a regulatory statute has some r a t i o n a l r e l a t i o n s h i p to the effectuation of a proper state purpose... the law must be shown necessary, and not  merely r a t i o n a l l y r e l a t e d to the accomplishment of permissible state p o l i c y ^93. One would think we were i n the heart of the Lochner Era. That t e s t sounds l i k e a " s t r i c t s c r u t i n y " t e s t : "the law must be shown neces-sary". There i s s t i l l much room f o r s u b j e c t i v i t y . Mr. J u s t i c e Black rose up against that opinion. He s a i d that i t "reinstates the Loch-294 ner... Coppage... Adkins... l i n e of cases" . Less than ten years l a t e r , Mr. J u s t i c e Stewart s a i d : The Griswold decision can be r a t i o n a l l y understood only as a holding that the (anti-contraceptive) statute s u b s t a n t i a l l y invaded the " L i b e r t y " that i s protected by the Due Process Clause" of the Fourteenth Amendment. As so understood, Griswold 292. See Griswold v. Connecticut, 281 U.S. 479 (1965), at 497. 293. Id., at 498. Emphasis added. 294. Id., at 524. stands as one i n a long l i n e of pre.-Skrupa cases decided -under the doctrine of "substantive due p r o c e s s 2 9 5 . 296 In Roe v. Wade i t was held that that same r i g h t was broad enough to "encompass a woman's decision whether or not to terminate a 297 pregnancy" (abortion). Therefore, a state which i n t e r f e r e s with the r i g h t to have an abortion must show that i t i s j u s t i f i e d by a com-p e l l i n g and overriding i n t e r e s t , and that the l e g i s l a t i v e enactment i s 298 narrowly drawn . In t h i s case the Supreme Court held that the states 299 had two " l e g i t i m a t e " i n t e r e s t s : the mother's health and the foetus' p o t e n t i a l l i f e . However, those i n t e r e s t s were d i s t i n c t and v a r i e d during pregnancy. For example, the court stated that during the f i r s t trimester the state has no i n t e r e s t i n protecting the health of the woman by regulating abortion, because the operation at that time i s not any more dangerous than a "normal c h i l d b i r t h " * ^ ^ . The i n t e r e s t of protecting the foetus by p r o h i b i t i n g the abortion i s not compelling e i t h e r i n the f i r s t trimester. However, during the second trimester 295. Tn Roe v. Wade, 410 U.S. 113 (1973), at 168, Mr. J u s t i c e Renquist has also suggested that Lochner and Griswold (and Roe v. Wade too) are " s i s t e r s under the skin". Renquist, "Is an Expanded Right of Privacy Consistent with F a i r and E f f e c t i v e Law Enforcement?" 23 U. Ken. L. Rev. 1 (1974); Roe v. Wade, at 174 (dissenting opinion). 296. Ibid. 297. Id., at 153. 298. Id., at 155. 299. Id., at 154. 300. Id., at 163. 95. of pregnancy- the mother's h e a l t h would be more endangered by the abortion than by a normal c h i l d b i r t h . The state thus has an i n t e r e s t i n adopting "reasonable" regulations r e l a t e d to the protection of the mother's 301 hea l t h . But there i s s t i l l no compelling i n t e r e s t i n protecting the foetus. During the t h i r d trimester, however, the foetus becomes v i a -302 ble . The state has therefore a compelling i n t e r e s t i n p r o h i b i t i n g 30 abortions except when the health or the l i f e of the mother i s i n danger In summary, i t would be wrong to assume that "substantive due 304 process" i s dead i n the United States . A f t e r 1937 the courts esta-b l i s h e d a double standard. When a law in t e r f e r e s with a "fundamental r i g h t " , the government has to prove to the court that the measure i s necessary to promote a compelling i n t e r e s t . When a law does not i n t e r -fere with such a r i g h t , the law only needs to be r a t i o n a l l y r e l a t e d to a legitimate end of government. Therefore, the concept of "substantive due process" s t i l l allows the review of statutes i n order to decide whether or not they are "reasonable". Many p a r a l l e l s can be drawn between the pre-1937 period dealing with the "freedom of contract" and the post-1937 period dealing with "fundamental r i g h t s " . But the most important p a r a l l e l i s c e r t a i n l y * 301. 410 U.S. 113 (1973), at 163. 302. Ibid. 303. Id., at 163-304. See Corwin, The Constitution and What i t Means Today (13th ed.), Princeton: Princeton U n i v e r s i t y Press, 1973, at 330 the r e l a t i o n means-end. Before 1937 the court required a s u b s t a n t i a l connection leading the court to review whether the measure was neces-sary- to protect a legitimate end (such as health) — see Lochner. A f t e r 1937 the means had to be necessary to promote a compelling governmental n,305. i n t e r e s t — see Griswold 305. We must add that because neither the freedom of contract nor the rig h t to priv a c y are written i n the U.S. Constitution, i t sounds l i k e the same l i n e of case. In Griswold v. Connecticut, 381 U.S. 479 (1965) Mr. Ju s t i c e Black i n dissent said that the majority "would r e i n s t a t e the Lochner, Coppage, Adkins, Burns l i n e of cases...", at 524. In Roe v. Wade, 410 U.S. 113 (1973), Mr. Jus t i c e Stewart s a i d : "The Griswold decision can be r a t i o n a l l y understood only as a holding that the (anti-contraceptive) sta-tute s u b s t a n t i a l l y invaded the " l i b e r t y " that i s protected by the due process clause... As so understood, Griswold stands as one i n a long l i n e of pre-Skrupa cases, decided under the doctrine of substantive due process." See also Renquist, "Is an Expanded Right of Privacy Consistent with F a i r and E f f e c t i v e Law Enforce-ment?", 23 U. Ken. L. Rev. 1 (1974) and Professor E l y i n "The Wages of Crying Wolf: A Comment on Roe v. Wade", 82 YalesL.J. 920 (1973), who c r i t i c i z e d the point that the Supreme Court en-forces some values which are not written i n the Constitution nor based on h i s t o r y . CHAPTER IV JUDICIAL REVIEW OF THE SUBSTANTIVE CONTENT OF THE LAW IN CANADA This: chapter w i l l review the short experience with "due process of law" i n Canada. The cases which have dealt with this concept were decided i n the period before 1982. At that time, the p r i n c i p l e of the supremacy- of parliament was not curtailed by a constitutional document such as the Charter of Rights. The phrase "due process of law".is 306 found i n a "quasi-constitutional" document, the Canadian B i l l of Rights which provides since 1960 that: 1. It is, hereby recognized and declared that i n Canada there have existed and s h a l l continue to exist without discrimination by reason of race, national o r i g i n , colour, r e l i g i o n or sex, the following human rights and fundamental freedoms, namely, (a) the r i g h t of the individual to l i f e , l i b e r t y , security of the person and enjoyment of pro-perty, and the right not to be deprived thereof except by due process of law307. 308 Such a concept was unknown to Canadian t r a d i t i o n . However, the language used i n section 1(a) of the Canadian B i l l of Rights was s i m i l a r to the B r i t i s h Laws which have recognized from time to time the 306. See Hogan v. The Queen (1975). 2 S.C.R. 574 (Laskin, J . ) . 307. Emphasis: added. 308. Rand, "Except by Due Process" (1961) ;.1 0.H.L.J. 171, at 174. 98. 309 310 Magna Carta and to the American amendments to the Constitution Therefore the courts were asked to decide whether the phrase "due pro-cess: of law" i n Canada should receive the narrow according to law con-tent — such, as i n England today — or whether i t allows the importation 311 i n Canada of "substantive due process" — as i n the United States It appears from the f i r s t important case dealing with the con-312 cept of "due process of law" i n Canada, Curr v. The Queen , that the Supreme Court rejected the narrow "according to law" i n t e r p r e t a t i o n . In that case the Court had to decide whether ss. 223 and 224 (a-3) (now s. 237(1) (b)(c)) of the Criminal Code which provided that the re f u s a l or default of an accused to agree to a br e a t h a l i z e r t e s t , without reasonable excuse, may be.admitted i n evidence against him, were compatible with ss. 1(a) and (b) and s. 2(4), (e) and (f) of the B i l l of Rights. 313 Mr. J u s t i c e Laskin spoke f o r the m a j o r i t y . He rejected the En g l i s h i n t e r p r e t a t i o n saying that: 309. See supra, ch. I and II. 310. See supra, ch. I I I . 311. See Tarnopolsky, The Canadian B i l l of Rights, Toronto: McClel-land and Stewart Ltd., 1975. 312. (1972) S.C.R. 889. Before 1972, the Canadian Courts had been relu c t a n t to define "Due Process of Law". See Rebrin v. Ministe r of C i t i z e n s h i p and Immigration (1961),S.C.R. 376; Yuet Sun v. (1961) S.C.R. 70; Regina v. Martin (1961) 35 CR. 276 (Alta. C.A.). For a review of these cases, see Tarnopolsky, i d . , at 229. 313. See also supra, ch. I. Four other judges endorsed h i s opinion: Abbot, H a l l , Spence, and Pigeon. I t i s obvious that to read "due process of law", as meaning simply that there must be some lega l autho-r i t y to q u a l i f y or impair s e c u r i t y of the person would be to see i t as declaratory only. On th i s view i t should not matter whether the le g a l autho-r i t y i s found i n enacted law or i n unenacted^of d e c i s i o n a l law^ 1 4. However, i n dissent, Mr. Just i c e Ritchie took the narrow view. 315 Only one judge concurred- . He said: I p r e f e r to base t h i s conclusion on my understanding that the meaning to be given to the language employed in the B i l l of Rights i s the meaning which i t bore i n Canada at the time when the B i l l was enacted, and i t follows that, i n my opinion, the phrase "due process of law" as used i n s. 1(a) i s to be construed as meaning "accordance to the lega l processes recognized by Parliament and the Courts i n Canada"316. Though the majority i n the Curr case rejected the narrow i n t e r -p retation of "due process of law", a majority of the Supreme Court of 317 Canada seems to have adopted i t i n 1977. In M i l l e r v. 0\ • , M i l l e r had been condemned to death f o r the murder of a p o l i c e o f f i c e r . He argued that the death penalty was inconsistent with the Canadian B i l l of Rights., 318 Mr. J u s t i c e Ritchie wrote the opinion f o r the majority . He said: 314. (1972) S.C.R. 889, at 897. 315. Mr. Just i c e Fauteux. 316. (1972) S.C.R. 889, at 916. 317. (1977) 2 S.C.R. 680. 318. J u s t i c e s Martland and Judson who did not adopt any f i n a l d e f i n i -t i o n i n Curr w i l l henceforth adopt the "narrow" view. Mr. Jus-t i c e de Grandpre was new on the bench and agreed with Mr. Ri t c h i e . "Mr. J u s t i c e Pigeon changed his mind between Curr and M i l l e r . 100. The declaration of the r i g h t of the i n d i v i d u a l not to be deprived of l i f e which i s contained i n s. 1(a) c l e a r l y q u a l i f i e d by the words "except by due pro-cess of law", which appear to me to contemplate a process whereby an i n d i v i d u a l may be deprived of l i f e . . . i n my view, the " e x i s t i n g r i g h t " guaranteed by s. 1(a) can only r e l a t e to ind i v i d u a l s who have not undergone the process of such a t r i a l and con-v i c t i o n ^ l " . The B i l l of Rights recognized " e x i s t i n g r i g h t s " . As f a r as "due process" was; concerned, t h i s meant "according to the le g a l process 320 recognized by Parliament and the courts i n Canada" The concept of "substantive due process" as interpreted i n the United States was also discussed i n Canada f o r the f i r s t time i n Curr. The Supreme Court was asked to ...monitor the substantive content o f - l e g i s l a t i o n by reference to s. 1(a). The i n v i t a t i o n (was) to take the phrase "except by due process of law" beyond i t s antecedents i n Engl i s h l e g a l h i s t o r y , and to view i t in terms that have had sanction i n the United States... On the one hand, Mr. Just i c e Laskin, who wrote f o r the majority, r e -jected the American experience with "substantive due process". He said that, American j u d i c i a l experience with the F i f t h and Fourteenth Amendments, i n respect of substantive due process, does not provide any ground upon which 319. (1977) 2 S.C.R. 680, at 704. 320. Tarnopolsky, the. Canadian-Bill pf,;Rights,. Toronto: McClelland and Stewart Ltd., 1975, atv;234... ..Since that decision, the Canadian Courts i n general have adopted the narrow view. 321. (1972) S.C.R. 889, at 897. 101. t h i s Court might stand f o r the purpose of resorting to due process i n s. 1(a) as a means of c o n t r o l l i n g such federal laws as s. 233 of the Criminal Code... He added further that, The very: large words of s. 1 (a) tempered by the phrase ("except by due process of law") whose o r i -g i n a l E n g l i s h meaning has been o v e r l a i d by American c o n s t i t u t i o n a l imperatives, s i g n a l extreme caution to me when asked to apply them i n negation of subs-tantive l e g i s l a t i o n v a l i d l y enacted by a Parliament in which the major r o l e i s played by elected repre-sentatives of the people. C e r t a i n l y , i n the present case, a holding that the enactment of s. 223 has i n -fringed the appelant's r i g h t to the s e c u r i t y of h i s person without due process of law must be grounded on more than a s u b s t i t u t i o n of a personal judgment for that of Parliament...323 t The Canadian Courts had to respect the Canadian t r a d i t i o n i n c o n s t i t u -324 t i o n a l law. In Morgentaler v. The Q u e e n , Chief J u s t i c e Laskin wrote i n h i s dissent about the Curr case that, This Court indicated in the Curr case how foreign to our c o n s t i t u t i o n a l t r a d i t i o n s , to our c o n s t i t u -t i o n a l law and to our conceptions of j u d i c i a l review was any interference by a court with the substantive content of l e g i s l a t i o n . No doubt, substantive con-tent had to be measured on an issue of u l t r a v i r e s even p r i o r to the enactment of the Canadian B i l l of  Rights, and necessary i n t e r p r e t a t i v e considerations also had and have a bearing on substantive terms. Of course, the Canadian B i l l of Rights introduced a new dimension i n respect of the operation and a p p l i -cation of federal law, as the judgments of t h i s Court have attested. Yet i t cannot be forgotten 322. (1972) S.C.R. 889., at 900. 323. Id., at 902. 324. (1976) 1 S.C.R. 616. 102. t h a t i t i s a s t a t u t o r y instrument, i l l u s t r a t i v e o f Parliament's primacy w i t h i n the l i m i t s of i t s a s s i -gned l e g i s l a t i v e a u t h o r i t y , and t h i s i s a r e l e v a n t c o n s i d e r a t i o n i n determining how f a r the language of the Canadian B i l l of Rights should be taken i n assessing the q u a l i t y of f e d e r a l enactments which are challenged under s. l ( a ) 3 2 5 # However, i t appears from a dictum i n h i s d e c i s i o n i n Curr that sometimes C h i e f J u s t i c e Laskin would be ready to monitor the substantive content of the law: Ih so f a r as s. 223 be regarded, i n the l i g h t of s. 223(2], as having s p e c i f i c substantive e f f e c t i n i t -s e l f , I am l i k e w i s e of the opinion that s. 1(a) of the Canadian B i l l o f Rights does not make i t inope-r a t i v e . Assuming t h a t "except by due'process* of'law'" provides a means of c o n t r o l l i n g substantive f e d e r a l l e g i s l a t i o n — a p o i n t that d i d not d i r e c t l y a r i s e i n R_. v. Drybones — compelling reasons ought t o be advanced to j u s t i f y the Court i n t h i s case to employ a s t a t u t o r y (as contrasted w i t h a c o n s t i t u t i o n a l ) j u r i s d i c t i o n to deny operative e f f e c t to a substan-t i v e measure duly enacted by a Parliament c o n s t i t u -t i o n n a l l y competent to do so, and e x e r c i s i n g i t s powers i n accordance w i t h the tenets of re s p o n s i b l e government, which u n d e r l i e the discharge of l e g i s -l a t i v e a u t h o r i t y under the B r i t i s h North America Act, 1867. Those reasons must r e l a t e t o o b j e c t i v e and manageable standards by which a Court should be g u i -ded i f scope i s t o be found i n s. 1(a) due process to s i l e n c e otherwise competent f e d e r a l l e g i s l a t i o n . N e ither reasons f o r u n d e r l y i n g standards were o f f e r e d here. For myself, I am not prepared i n t h i s case t o surmise what they might be32o_ In Morgentaler, he s a i d that s e c t i o n 1(a) of the Canadian B i l l of Rights was not n e c e s s a r i l y l i m i t e d to procedural matters. 325. |dv, at'.632:,R. at 632. 326. (1972) S.C.R. 889, at 899-900. 103. I am not, however, prepared to say, i n t h i s e a r l y period of the elaboration of the impact of the Canadian B i l l of Rights upon federal l e g i s l a t i o n , that the p r e s c r i p t i o n of s. 1(a) must be rigidly-confined to procedural matters. There i s often an i n t e r a c t i o n of means "and ends, and i t may be that there can be a proper invocation of due pro-cess of law i n respect of federal l e g i s l a t i o n as i improperly abridging a person's r i g h t . . . ^27_ Therefore i t appears from the opinions of Mr. J u s t i c e Laskin i n Curr (speaking f o r the majority) and i n Morgantaler (dissenting) that the phrase "due process of law" should be interpreted somewhere between "according to law" and the broad "substantive due process". In his mind, i t safeguarded at least some procedures. In Curr he wrote that It i s evident from s. .2... that i t s s p e c i f i c a t i o n of p a r t i c u l a r protections i s without l i m i t a t i o n of any others that, may have a source i n s. 1.:. (But) I am unable to appreciate what more can be read i n t o s. 1(a) from a procedural standpoint than i s already comprehended by s. 2(e) (a f a i r hearing i n accordance with the p r i n c i p l e s of fundamental j u s t i c e ) and by s:. 2(f) ("a f a i r and p u b l i c hearing by an independent and i m p a r t i a l tribunal")^28. We saw i n the f i r s t chapter that t h i s i n t e r p r e t a t i o n allowed the court to monitor the procedural content of the law. In a word, though the recognition i n Curr that the phrase "due process of law" allowed the court to control the "procedural" and per-haps the "substantive" content of the law, subsequent decisions suggest 327. (1976) 1 S.C.R. 616, at 633. 328. (1972) S.C.R. 889, at 898. Patrice Garant s a i d that the drafters of the Charter of Rights adopted " p r i n c i p l e s of fundamental j u s -t i c e " to c o n s t i t u t i o n a l i z e that conception of Laskin's. In Tarno-polsky, Beaudoin, The Canadian.Charter of Rights and Freedoms, Toronto: Carswell Co., 1982. 104. that the Supreme Court of Canada reads i n t o s. 1(a) of the Canadian B i l l o f Rights, the narrow Engl i s h "according to law" pro t e c t i o n . Therefore, 329 i t seems: f a i r to say that Curr i s an i s o l a t e d case 329. See Re State of Wisconsin and Armstrong (1973) 32 D.L.R. (3d) 265; Levitz v. Ryan (1972) 29 D.L.R. (3d) 519; See also Tarnopol-sky, The Canadian B i l l of.Rights, Toronto: McClelland Stewart Ltd., 1975, and Garant, "Fundamental Freedoms and Natural Jus-t i c e " , i b i d . 105. CHAPTER V THE AMERICAN SUBSTANTIVE DUE PROCESS, THE PRINCIPLES OF FUNDAMENTAL JUSTICE AND THE DRAFTERS OF THE CHARTER The preceeding chapters discussed "substantive due process" i n England, i n the United States and i n Canada before A p r i l 1982. We saw that the American jurisprudence seems to be the only one which allows 330 the court to control the substantive content of the law . While England might-have allowed such j u d i c i a l review at times in i t s h i s t o r y , that approach was rejected when the supremacy of parliament was affirmed. Canada, which i s a legatee of the B r i t i s h constitutional t r a d i t i o n s , has; never c l e a r l y established i n jurisprudence, the idea of the American "substantive due process". Part of the reason was that i n Canada the phrase "due process of law" was written i n a "quasi-constitutional" docu-ment which gave a statutory — as contrasted with a constitutional — j u r i s d i c t i o n . The entrenchment i n the constitution of a due process clause would remove th i s legal objection raised i n Curr v. The Queen by Mr. Justice Laskin. Before the f i n a l draft of the Charter, many drafts had been written. They a l l provided that: 330. It should be reminded that several decisions i n the United States expressly rejected such a j u r i s d i c t i o n . See Ferguson v. Skrupa 372 U.S. 726 (1963) and Lincoln Federal Labor Union v. Northwestern Tron 6 Metal Co. 335 U.S. 525 (1949). 106. Everyone has the r i g h t to l i f e , l i b e r t y and s e c u r i t y of the person and the r i g h t not to be deprived there-of except by due process of law-^31. This? phrase "due process-of law" was amended i n September, 1980. It was 332 replaced by the phrase " p r i n c i p l e s of fundamental j u s t i c e " . At f i r s t glance, two reasons could have motivated the drafters to make, such a change in a phrase long known i n E n g l i s h Law. On the one hand, they could have rejected the narrow i n t e r p r e t a t i o n given by Ritchie to the e f f e c t that "due process" meant "according to law". On the other hand they could have been a f r a i d that the c o n s t i t u t i o n a l j u r i s d i c t i o n of the Char-t e r would allow the court to monitor the l e g i s l a t i v e content and p a r t i -c u l a r l y i t s "substantive" content through the introduction i n Canadian law of "substantive due process". This second hypothesis r e f l e c t s the concern of the majority of the witnessess before the Special J o i n t Com-mittee of the Senate and of the House of Commons on the Constitution of Canada. Obviously something was wrong with the concept "substantive due process". The Honorable Jean Chretien explained the possible e f f e c t of the due process clause: I f you write down the words "due process of law" here, the advice I am receiving i s the court could go behind our decision and say that t h e i r decision on abortion was not the righ t one, t h e i r decision on c a p i t a l punishment was not the righ t one, and i t i s a danger, according to le g a l advice I am re-ceiving, that i t w i l l very much l i m i t the scope of 331. See E l l i o t , "Interpreting the Charter-Use of the E a r l i e r Versions as an A i d " (1982) . U.B.C.L.^Rev. 11. • • " • 332. Section 7 of the Charter. 107. the power of l e g i s l a t i o n by the Parliament and we don't want that;, and i t i s why we do not want the words "due process of law"... we do not want the courts to say that the judgment of Parliament was wrong i n using the constitution...333. Professor Tarnopolsky shares, t h i s point of view. He s a i d that there remains a fear i n many c i r c l e s that any reference to a due process clause, even without reference to pro-perty i n t h i s clause, could reintroduce the substan- ^34 t i v e "due process" i n t e r p r e t a t i o n i n the United States Also, Dr. B.L. Strayer, the Assistant Deputy Minister, Public Law, of the federal Department of J u s t i c e , gave the view of the draf-t e r s of the Canadian Constitution: Mr. Chairman, i t was our b e l i e f that the words "fun-damental j u s t i c e " would cover the same thing as what is; c a l l e d procedural due process, that i s the meaning of due process in r e l a t i o n to r e q u i r i n g f a i r procedure. However, i t in our view does not cover the concept of what i s c a l l e d substantive due process, which would impose substantive requirements as to the p o l i c y of the law i n question... t h i s has been most c l e a r l y de-monstrated i n the United States i n the area of pro-perty, but also i n other areas such as the r i g h t to • l i f e . The term due process has been given the broader concept of meaning both' the procedure and substance. Natural j u s t i c e or fundamental j u s t i c e i n our view does hot go beyond the procedural requirements of f a i r n e s s . . . Due process would c e r t a i n l y include the concept of procedural fairness that we think i s co-vered by fundamental j u s t i c e but we think that "due 333. Minutes of Proceedings and Evidence of Special J o i n t Committee of the Senate and of the House of Commons on the Constitution of Canada. F i r s t Session of the thirty-second Parliament, 1980-81, at 46:43 (Jan. 27, 1981). 334. Td., at 7:21 (Nov. 18; 1980). 108. process" would have the danger of going well beyond procedural fairness and to deal with substantive f a i r n e s s which r a i s e s the p o s s i b i l i t y of the courts second guessing Parliaments or l e g i s l a t u r e s on the p o l i c y of the law as opposed to the procedure by which r i g h t s are.to be dealt with. This has been the experience at times i n the United States in the i n t e r p r e t a t i o n of the term "due process"335_ The fear about "due process of law" however was not unanimous. It would be true to say that the scope and the meaning of "due process of law", as opposed to " p r i n c i p l e s of fundamental j u s t i c e " created some confusion i n the minds of many witnesses. Some people, such as Max Cohen, believed that both expressions were synonymous. For-them*the phrase " p r i n c i p l e s of fundamental j u s t i c e " was only the continuity of 336 the law of the land, natural law, fundamental law and due process In any event, there was a general repulsion concerning "substantive due process" as interpreted i n the United States. "Substantive due process" as we have e a r l i e r seen, i s a notion quite complex which developed i n the United States i n accordance with the c o n s t i t u t i o n a l t r a d i t i o n s . It i s not clear to what extent i t s scope was: understood by those who drafted the Canadian Constitution. There was no serious attempt to define the scope and the meaning of "substantive 335. Id., at 46:32 (Jan. 27, 1981). 336. Cohen sai d : "You can trace a whole systematic approach to what began as a simple phrase, I think i n the Magna Carta... up through ideas of natural law, up through the idea of fundamental law, then due process of law, now fundamental j u s t i c e which i s a high bred term and which the Diefenbaker B i l l of Rights used quite success-f u l l y i n i t s own l i m i t e d way and I see i t has been taken i n t o here... I would p r e f e r a nice o l d term that lawyers know f o r a couple of hundred years such as due process of law. But i f the draftsmen believe they are be t t e r o f f with fundamental j u s t i c e , we w i l l not c a v i l about i t . " Id., at 7:89 (Nov. 18, 1980). 109. due process" before the j o i n t committee. The only reference made to i t concerned a fear of a review of the Judgment of Parliament or a control of the policy- of the law. The Canadian understanding of "substantive due process" i s more e x p l i c i t elsewhere. In Curr, Mr^ Ju s t i c e Laskin areviewed the American jurisprudence concerning that concept i n economic matters be-fore 1937 3 3 7. He s a i d : It appears that s o - c a l l e d economic due process has been abandoned (in 1937), i n the r e a l i z a t i o n that a Court enters the bog of l e g i s l a t i v e policy-making i n assuming to enshrine any p a r t i c u l a r theory, as f o r example, untrammelled l i b e r t y of contract, which has not been p l a i n l y expressed i n the c o n s t i t u t i o n - ^ ^ This American experience led him to use "extreme caution when he was- asrked to overrule an Act of Parliament. There was nothing i n the record "by way of evidence" or "admissible e x t r i n s i c material", 339 upon which such a holding could be supported" . Mr. J u s t i c e Laskin added that the Supreme Court "must r e s i s t making the wisdom of.impugned 340 l e g i s l a t i o n a test of i t s c o n s t i t u t i o n a l i t y " . A test based on the wisdom of the law could have caused the " f e a r " created by""substantive due process". 337. The use of "substantive due process" i n economic matters before 1937, has been c a l l e d "economic due process". But we should not confuse these two terms. They are not synonymous. The f i r s t term is much broader and includes the second. 338. (1972) S.C.R. 889, at 902. 339. Ibid. 340. Id at 903. 110. 341 In his Canadian B i l l of Rights, , Professor Tarnopolsky r e -views; the American experience as well. He suggests that "substantive due process" came to aneend i n 1934. He b r i e f l y reviews the American appl i c a t i o n of the due process clause which i n v a l i d a t e d many socio-eco-nomic laws during the 19th century and, the f i r s t t h i r d of the 20th century. Tarnopolsky claims that "the change came f i n a l l y with the 342 1934 case of Nebbja v. New York He adds that "due process" meaning that "no person s h a l l be 343 deprived of property" no longer applies today. And when he reviews the opinion of Laskin i n Curr he assimilates substantive due process w i t h economic due process: He (Laskin) r e f e r r e d to the abandoning of the eco- nomic, (or substantive) due process, i n t e r p r e t a t i o n in 1937...344 : It would not be wrong to say that the drafters i n general, un-derstood the concept of "substantive due process" as having ended i n 345 the 1930's . In other words, they thought the introduction of th i s concept i n Canada would have led the Canadian courts to review the 341. Tarnopolsky, The Canadian B i l l of Rights, Toronto: McClelland and Stewart Ltd., 1975. 342. Id., at 229. 343. Id., at 225. 344. Id_., at 231. Here Mr. Tarnopolsky confused "economic" and "subs-t a n t i v e " due process. Mr. J u s t i c e Laskin irt Curr d i d not make such an a s s i m i l a t i o n . We saw that they are not synonymous terms. 345. It i s l i k e l y however that Dr. Strayer r e f e r r e d to the " s t r i c t s c r u t i n y " t e s t i n general. See his passage accompanying note 335. 111. substantive content of the l e g i s l a t i o n i n a way- which would have been s i m i l a r to the American decision held throughout the Lochner Era (1900-1937). Tt is- true that the years 1934 and 1937 r e s p e c t i v e l y marked a cons.tutional switch i n the Court's approach to "substantive due process". 346 However, as we e a r l i e r saw, the r e a l " c o n s t i t u t i o n a l r e v o l u t i o n " , was not i n regard to t h i s concept. To conclude that "substantive due pro-cess;" died a f t e r 1937 i s to take the r e s u l t f o r the reasoning. And the r e s u l t , i n i t s e l f i s misleading. Tribe said that between 1897 and 1937, "more, statutes, i n f a c t , withstood due process attack i n t h i s period 347 than succumbed to i t " . "Due process of law" i s not a r e s u l t . It i s a means of protecting the i n d i v i d u a l from a r b i t r a r y government. "Subs-348 tantive due process" requires standards . These standards can be more or less severe. We saw that in the Lochner Era the " s t r i c t s c r u t i n y " t e s t had the favour of the court. Then, j u d i c i a l review consisted i n the review of the "wisdom" of the p o l i c y . 346. Corwin, C o n s t i t u t i o n a l Revolution, Claremont: Claremont C o l l e -ges, 1941. 347. Tribe,; American C o n s t i t u t i o n a l Law, Mineola: The Foundation Press- Inc., 1978, at 435. It seems that 197 cases have been i n -v a l i d a t e d while a larger number of regulations have survived the due process t e s t . See e.g. V i l l a g e of E u c l i d v. Amber, 272 U.S. 365 (1926); Bunting v. Oregon, 243 U.S. 426 (1917); Chicago v. McGuire, 219 U.S. 549 (1911); M i l l e r v. Oregon, 208 U.S. 412 (1908); Holden v. Hardy, 169 U.S. 366 (1898). 348. It i s perhaps what Mr. Jus t i c e Laskin meant when he s a i d that he needed "compelling reasons... (and) those reasons must r e l a t e to objective and manageable standards by which a Court should be guided i f scope i s to be found i n s-. 1(a) due process: to silence otherwise competent federal l e g i s l a t i o n . . . " Curr v. C\ (1972) S.C.R. 889, at 899-900. 112. I;f the control of the "wisdom" of the p o l i c y of the law was the sole t e s t or standard possible i n order to give e f f e c t to reasonable laws-,. perhaps the fear of "due process of law" would have been j u s t i -f i e d i n a s o c i e t y the t r a d i t i o n s of which were f i r m l y rooted i n the rule of law and i n the supremacy of Parliament. However, we saw e a r l i e r that the " s t r i c t s c r u t i n y " t e s t was.only one of many tests that a court could apply. Moreover, we also saw that the concept of "substantive due pro-cess" i s not an experience which died i n the 1930's. On the contrary i t appears, that the American courts continued to use t h i s concept in, order to control the substantive content of the law. By the end of the 1930*s:, the courts began to use two standards. Therefore i t . appears that i t i s l i k e l y that the drafters of the Charter who decided to re-place "due process of law" by " p r i n c i p l e s of fundamental j u s t i c e " were misled. "Substantive due process" does not n e c e s s a r i l y imply the review of the p o l i c y of the law. In any event, we should conclude that the drafters wrote the phrase " p r i n c i p l e s of fundamental j u s t i c e " i n order to avoid the i n t r o -duction i n Canada.of the " s t r i c t s c r u t i n y " t e s t such as applied before 1937 in the United States. Therefore i t i s l i k e l y that the drafters of the Charter d i d not intend to r e j e c t any standard of " r e a s o n a b i l i t y " . The t e s t which allows the court to review the "wisdom" of the law was only one t e s t underlying the standard of " r e a s o n a b i l i t y " . Therefore i t could be maintained that the drafters- would have agreed with a standard beyond the "wisdom" t e s t 113. such, as; a."rational b a s i s " t e s t within the new phrase of " p r i n c i p l e s of 349 fundamental j u s t i c e " or within the phrase "due process of law" The phrase " p r i n c i p l e s of fundamental j u s t i c e " has never been 350 c l e a r l y defined i n Canadian Law . However the Canadian B i l l of Rights (I960) provides i n i t s section 2(e) that: 2. ...no law of Canada s h a l l be construed or applied so as to (e) deprive a person of the r i g h t to a f a i r hearing i n accordance with the p r i n c i p l e s of fundamental j u s t i c e f o r the determination of h i s r i g h t s and obligations. This section had been interpreted i n the case Duke v. The Queen In t h i s case Duke asked i n vain a breath sample to the p o l i c e i n order to analyze i t himself. Before the court he maintained that he was deprived of a r i g h t to a f a i r hearing in accordance with the p r i n c i p l e s of funda-mental j u s t i c e (s. 2(e) of the Canadian B i l l of Rights) because of the consequent f a i l u r e to provide the sample. I t was according to t h i s context that Mr. J u s t i c e Fauteux s a i d that: Without attempting to formulate any f i n a l d e f i n i t i o n of those words, I would take them to mean, generally, that the t r i b u n a l which adjudicates upon h i s r i g h t s must act f a i r l y , i n good f a i t h , without bias and i n 349. We w i l l see, i n the l a s t chapter, that the " r a t i o n a l b a s i s " t e s t was known to our Canadian t r a d i t i o n . 350. However,Garant s a i d that t h i s notion i s synonymous with "natural j u s t i c e " and therefore known at common law. S§e "Fundamental Freedoms and Natural J u s t i c e " , i n Tarnopolsky and Beaudoin, The  Canadian Charter of Rights and Freedoms, Toronto: Carswell, 1982, at 277-278. 351. (1972) S.C.R. 917. 114. a j u d i c i a l temper, and must give to him the opportu-nity- adequately to state his c a s e - ^ . One might conclude that t h i s passage suggests that section 2(e) of the Canadian B i l l of Rights was• synonymous with the " p r i n c i p l e s of 353 natural j u s t i c e " . However i t would be d i f f i c u l t to a f f i r m that t h i s pass-age of Mr. J u s t i c e Fauteux r e f e r r e d to the portion " p r i n c i p l e s of fundamental j u s t i c e " only. It seems instead that he took section 2(e) of the Canadian B i l l of Rights as a whole: " r i g h t to a f a i r hearing i n accordance with the p r i n c i p l e s of fundamental j u s t i c e " . It i s there-fore d i f f i c u l t to separate the two concepts. And because the r i g h t to 354 a f a i r hearing i s procedural i n i t s e l f , i t i s l o g i c a l to i n f e r that the p r i n c i p l e s of fundamental j u s t i c e r e l a t e d to t h i s r i g h t are neces-s a r i l y procedural. This reasoning alone shows that i t would be wrong to hold that the phrase " p r i n c i p l e s of fundamental j u s t i c e " i n section 7 of the Charter means what Mr. J u s t i c e Fauteux said i t meant i n Duke. F i r s t he refused to adopt any f i n a l d e f i n i t i o n on the subject and secondly i t would be an extrapolation of h i s opinion out of the context i n which i t was given. However the approach of Mr. Just i c e Fauteux can be relevant so as; to indicate that the phrase " p r i n c i p l e s of fundamental j u s t i c e " should 352. Id_. ,- at 923; 353. See e.g. Hogg, Canada Act 1982, Annotated, Toronto: Carswell, 1982, at 27. 354. P6pin, Ouellette, Principes de contentieux a d m i n i s t r a t i f , Cowans-v i l l e : Yvon B l a i s Inc., 1982, at 225- v 115. be read with, the r i g h t ' i t i s r e l a t e d to. Consequently, the r i g h t not to be deprived of his; l i f e , l i b e r t y or s e c u r i t y except i n accordance w i t h the p r i n c i p l e s of fundamental j u s t i c e should be interpreted as a whole. Consequently the phrase " p r i n c i p l e s of fundamental j u s t i c e " would, i n e f f e c t , be interpreted according to i t s context. In section 7 of the Charter, the context i n which i s written the phrase " p r i n c i p l e s of fundamental j u s t i c e " i s completely d i f f e r e n t from s. 2(e) of the Canadian B i l l of Rights. It i s r e l a t e d to the deprivation of the r i g h t s to l i f e , l i b e r t y and s e c u r i t y rather than the r i g h t to a f a i r hearing. Those three fundamental r i g h t s are not i n themselves procedural r i g h t s . They are "substantive". Their scopes are much broader than a right to a f a i r hearing. Therefore, i n so f a r as the phrase " p r i n c i -ples of fundamental j u s t i c e " must be read i n r e l a t i o n to these three fundamental r i g h t s — l i f e , l i b e r t y and s e c u r i t y — protected i n section 7 of the Charter, the p r i n c i p l e s required may be, at f i r s t glance at least, much broader than those required i n section 2(e) of the Canadian B i l l of Rights. Consequently a l l the p r i n c i p l e s interpreted as being of fundamental j u s t i c e by the courts that apply a law which has the e f f e c t of depriving an i n d i v i d u a l of his r i g h t to l i f e , l i b e r t y or secu-r i t y should be prima f a c i e included i n section 7 of the Charter of Rights-. These p r i n c i p l e s may vary according to the r i g h t deprived. Some rights- — such as l i b e r t y , f o r example — could have more p r i n c i p l e s of fundamental j u s t i c e r e l a t e d to i t than the r i g h t to a f a i r hearing 116. or to se c u r i t y . The question reminds one of the nature of those p r i n -c i p l e s of fundamental j u s t i c e r e l a t e d to a p a r t i c u l a r r i g h t , and bears on the means: to recognize them. We w i l l discuss t h i s point i n the l a s t chapter. CHAPTER VI AMERICAN SUBSTANTIVE DUE PROCESS AND CANADIAN CONSTITUTIONAL TRADITIONS Assuming that the drafters of the Charter of Rights have adopted the phrase " p r i n c i p l e s of fundamental j u s t i c e " i n order to avoid the 355 introduction i n Canada of the concept "substantive due process" , i t would appear at f i r s t glance that t h i s i n t e n t i o n has been recently thwarted by the decision of the Appeal Court of B r i t i s h Columbia i n the Motor Vehicle Act Reference. The Court has decided that, The meaning to be given to the phrase " p r i n c i p l e s of fundamental j u s t i c e " i s that i t i s not r e s t r i c -ted to matters of procedure but extends to subs-tantive law and that the courts are therefore c a l -led upon i n construing the provision of s. 7 of the Charter, to have regard to the content of l e g i s l a -t i o n ^ . This passage indicates that the spectre of "substantive due process" i s s t i l l looming on the horizon of the Charter of Rights. In t h i s case the judges had to decide whether an "absolute l i a b i l i t y " offense lead-ing to a.mandatoryyseven days' imprisonment was i n accordance with the "p r i n c i p l e s of fundamental j u s t i c e " . The councel opposing the v a l i d i t y of section 94(2) contended, as Mr. Ju s t i c e Dickson stated i n Sault 355. See supra, ch. V..V. 356. The Motor. Vehicle Act Reference, at 11. 118. Ste-Marie,.that there was "aggenerally held revulsion against punishment of the morally innocent". He therefore claimed that a l l "absolute l i a b i -l i t y " offenses were inconsistent with the Charter. This argument, which 35 7 35 8 w i l l be examined l a t e r , was rejected by the Court of Appeal . The judges agreed with the proposition stated by Dickson-; J . , but held that there w i l l remain "c e r t a i n p u b l i c welfare offenses, e.g. a i r and water p o l l u t i o n offenses, where the p u b l i c i n t e r e s t requires that the offenses 359 be absolute l i a b i l i t y offenses" However, the Court of Appeal ruled that section 94(2) was i n -consistent with section 7 of the Charter because the l e g i s l a t u r e , though i t can create "absolute l i a b i l i t y " offenses, did not respect the c r i t e -r i a which underly such a category of offenses and which characterize 360 i t . Those c r i t e r i a were set out by Mr. Just i c e Dickson f o r a unani-361 mous court i n S a u l t Ste-Marie . In that case the Supreme Court of Canada created a t h i r d category of offenses c a l l e d " s t r i c t l i a b i l i t y " 362 — the "half-way house" — between-^the-'two-traditional "categories of offenses, one req u i r i n g the mens rea (to have a g u i l t y mind) and the 357. See i n f r a , ch. VTI.. 358. The Motor Vehicle Act Reference, at 11-12. 359. Id., at 12. 36Q. Id., at 11. 361. (1978) 2 S.C.R. 1299. 362. See Williams, Criminal Law (the General Part) (2nded.), Lon-don: Stevens, 1961. 119. other i r r e s p e c t i v e of f a u l t and c a l l e d "absolute l i a b i l i t y " . Mr. Jus-t i c e Dickson said: Offenses: which, are criminal i n the true sense f a l l i n the f i r s t category. Public welfare offenses would, prima f a c i e , be in the second category. They are not subject to the presumption of f u l l mens rea. An offense of t h i s type would f a l l i n the f i r s t cate-gory only i f such words as " w i l f u l l y " , "with i n t e n t " , "knowlingly", or " i n t e n t i o n a l l y " are contained i n the statutory provision creating the offense. On the other hand, the p r i n c i p l e that punishment should i n general not be inflicted;} on those without f a u l t applies. Offenses of absolute l i a b i l i t y would be those i n respect of which the Legislature had made i t c l e a r that g u i l t would follow proof merely of the proscribed act. The o v e r - a l l regulatory pattern adopted by the Legislature, the subject-matter of the l e g i s l a t i o n , the importance of the penalty, and the p r e c i s i o n of the language used w i l l be primary considerations i n determining whether the offense f a l l s i nto the t h i r d category^3, .364 The penalty for "absolute l i a b i l i t y " offenses i s usually " s l i g h t " ' The Court of Appeal held that the p r i n c i p l e s (or c r i t e r i a ) underlying the d i v i s i o n of offenses into three categories must receive "considera-365 t i o n " . The judges concluded that Mr. Ju s t i c e Dickson i n Sault Ste- Marie "makes i t c l e a r that the nature of the penalty imposed i s im-p o r t a n t " 3 ^ . In the case of section 94(2) what the Legislature has done i s declare the offense to be absolute, de-nying to the accused the opportunity to show that 363. (1978) 2 S.C.R. 1299, at 1326. 364. Id., at 1311. 365. The Motor Vehicle Act Reference, at 10. 366. Tbid. 120. he drove without knowledge that h i s licence was suspended. The penalty imposed i s a mandatory-seven days imprisonment. The conclusion can only be that the l e g i s l a t i o n i s inconsistent with the p r i n c i p l e s stated by Dickson J. and which should be applied i n determining into which of the three categories an offense f a l l s 3 6 7 . The Court of Appeal has included the p r i n c i p l e s stated by Mr. J u s t i c e Dickson in Sault Ste-Marie i n the content of " p r i n c i p l e s of 36 8 fundamental j u s t i c e " . Did the Court of Appeal through section 7 of the Charter of Rights, introduce the American concept of "substantive due process" into Canadian c o n s t i t u t i o n a l law? I w i l l show that t h i s i s very u n l i k e l y . It seems that the Court of Appeal of B r i t i s h Columbia did not r e l y on the American i n t e r p r e t a t i o n of substantive due process i n the Motor Vehicle Act Reference. Neither the test applied before 1937 nor the post-1937 standard has been introduced i n t o Canadian c o n s t i t u t i o n a l law. I t takes more than a review of the "substantive" content of the law to i n f e r the adoption of "substantive due process" in the American sense. "Substantive due process" was created i n the United States because American c o n s t i t u t i o n a l t r a d i t i o n s needed i t at a given time. It played a s p e c i f i c r o l e which f i t t e d t h e i r conception of j u d i c i a l review. Thus i t i s questionable whether i t could have been transplanted to Canada. We have seen that l i m i t a t i o n s upon the American federal and state l e g i s l a t u r e s concerning the legitimate goals of government or the 367. The Motor Vehicle Act Reference, at 11-12. 368. Id., at 12. 121. "police powers", preceded the due process clause. Natural law and the s o c i a l compact had established that the only legitimate end of govern-ment was to protect the p u b l i c welfare instead of dealing with purely 369 p r i v a t e i n t e r e s t s . In the absence of such a t r a d i t i o n i n Canadian c o n s t i t u t i o n a l law, i t i s relevant to ask whether section 7 of the Charter of Rights can introduce i n Canada a doctrine (the exclusion of cert a i n ends) that i t s American counterpart (the due process clauses) did not create but merely applied and developed. The l i m i t a t i o n s on government enforced by substantive due process were a substitute f o r the p r i o r natural-law approach and thus f i t t e d i n t o the American p o l i -t i c a l t r a d i t i o n . In Canada, as we have seen e a r l i e r , the c o n s t i t u t i o n a l t r a d i -t i o n before the enactment of the Charter of Rights contained n o ' such implied l i m i t a t i o n s imposed by the theories of natural law or 370 s o c i a l compact . Canadian federalism had been b u i l t upon the "Legis-371 l a t i v e Supremacy of Parliament", a B r i t i s h p r i n c i p l e which had exhaustively d i s t r i b u t e d the t o t a l i t y of the l e g i s l a t i v e power between ' 372 the federal Parliament and the p r o v i n c i a l l e g i s l a t u r e s . That means 369. See supra, c h ^ I I T i } 370. I am not denying, however, that these theories had an impact on the common law. We w i l l see i n the next chapter that the courts created several rules of i n t e r p r e t a t i o n i n order to protect natural r i g h t s . 371. See Dicey, Law of the Constitution (9th ed.), London: MacMillan and Co., 1948, ch. 1-3. 372. Bank of Toronto v. Lambe (1887) 12 A.C. 575, at 587; Union Col- l i e r y Co. v. Bryden (1899) T A.C. 580 (P.C.), at 585. 122. that together the two l e v e l s of government could pass laws on any t o p i c 373 a f f e c t i n g any person . Consequently, there i s no "end" of l e g i s l a t i v e 374 power that i m p l i c i t l y no l e v e l of government could regulate . Such a l i m i t a t i o n would have been i n c o n s i s t e n t w i t h the p r i n c i p l e o f e x h a u s t i -v i t y which was the f e d e r a l i s t v e r s i o n of the p r i n c i p l e of parliamentary supremacy. Xn Canada the l e g i t i m a t e "ends" of power are mainly found i n 375 s e c t i o n s 91 and 92 of the C o n s t i t u t i o n A c t , 1867 . When a court can-not a t t r i b u t e the s p e c i f i c '.'matter" of a^law.-to one "of the. express c l a s -ses o f subjects enumerated, that law f a l l s w i t h i n the t o t a l r e s i d u a r y power o f the f e d e r a l Parliament (the opening words of s e c t i o n 91 of the 376 C o n s t i t u t i o n A c t , 1867) . That expl a i n s why the main Canadian c o n s t i -t u t i o n a l question has been "who" can reg u l a t e such and such "matter" 3^3. We have already mentioned t h a t there were only a few exceptions to t h i s t r a d i t i o n . For example take s. 93 and 133 of the C o n s t i -t u t i o n A c t , 1867. 374. I t can be maintained, however, th a t the f e d e r a l system i t s e l f imposes some i m p l i c i t l i m i t a t i o n s . For example, the i m p o s s i b i l i t y of a l e g i s l a t u r e t o do " l e g i s l a t i v e i n t e r d e l e g a t i o n " or to pre-clude j u d i c i a l review of the c o n s t i t u t i o n a l i t y of a s t a t u t e . See Hogg, C o n s t i t u t i o n a l Law of Canada, Toronto: C a r s w e l l , 1977, at 199-200. 375. I am not speaking about the concept of " v a l i d f e d e r a l o b j e c t i v e " as developed under the e q u a l i t y clause of the Canadian B i l l of Rights. See Q\ v. Burnshine (1975) 1 S.C.R. 693. However i t would seem th a t t h i s concept — which can be synonymous w i t h a " l e g i t i m a t e end" — i s synonymous w i t h the l e g i s l a t i v e power that we f i n d under s e c t i o n 91 of the C o n s t i t u t i o n A c t , 1867. See MacKay v. The Queen (1980) 2 S.C.R. 370 (Mclntyre, J . , concurring a t 405-406). 376. See, however, A.G. Ont. v. A.G. Can. (Local P r o h i b i t i o n ) (1896) A.C. 348, at 365 (Lord Watson) which would have recognized that s. 92£16) C o n s t i t u t i o n A c t , 1867, was a p r o v i n c i a l r e s i d u a l clause. 123. instead of "whether" t h i s "matter" i s subject to regulation. Thus, where the "matter" of the law does not f a l l within the classes of sub-j e c t a l l o c a t e d to the enacting l e g i s l a t u r e , the law i s u l t r a v i r e s , which means that i t i s i n v a l i d under the d i s t r i b u t i o n of power p r o v i -sions. Tt i s u n l i k e l y that one of the e f f e c t s of section 7 would be to exclude from the power of Parliament or of the l e g i s l a t u r e s c e r t a i n "ends" or subject matter that had been exhaustively d i s t r i b u t e d i n the Constitution Act, 1867. There are two compelling arguments to support that proposition. F i r s t , section 1 of the Charter of Rights, i t s e l f , provides that the r i g h t s guaranteed are subject "to such reasonable l i m i t s prescribed by law as can be demonstrably j u s t i f i e d i n a free and democratic society". Therefore, Parliament and the l e g i s l a t u r e s are only l i m i t e d i n the means to achieve an end otherwise v a l i d under the d i s t r i b u t i o n of powers. Second, Parliament or the l e g i s l a t u r e s may always use the "notwithstanding" clause of section 33 of the Charter to expressly declare that a law inconsistent with section 7 of the Charter s h a l l be in e f f e c t . . These two sections lead to the conclusion that the p r i n c i p l e of exhaustivity i s not c u r t a i l e d by the passing of section 7 i n p a r t i c u l a r . Such a conclusion would probably also explain the d i c t a 377 of Chief J u s t i c e Laskin i n Westeitdorp v. The Queen : It appeared i n the course of argument that counsel f o r the appellant not only sought to infuse a subs-tantive content i n t o section 7 beyond any procedural 377. Jan. 25, 1983 (S.C.C.) unreported. 124. l i m i t a t i o n o f i t s terms,.but a l s o to rely- on s e c t i o n 7 to challenge the v a l i d i t y of the by-law p r o v i s i o n without accepting as a necessary b a s i s f o r the sec-t i o n 7 submission that i t could only apply i f the by-law was to be taken as v a l i d under the d i s t r i b u -t i o n of powers between the l e g i s l a t i v e a u t h o r i t i e s * 3 . This passage seems to assume th a t an argument based upon s e c t i o n 7 of the Charter can be r a i s e d only i f the law challenged i s v a l i d under the d i v i s i o n of powers or i f i t i s presumed t o be so. I f , and only i f , t h i s law i s assumed to be v a l i d under the d i v i s i o n o f powers, the court w i l l look at i t s content t o decide whether or not i t i s c o n s i s t e n t w i t h s e c t i o n 7 of the Charter. Consequently, the question of " l e g i t i m a t e end" i s s t i l l r e s o l v e d by the t r a d i t i o n a l question of "who" can r e g u l a t e such and such matter. The Charter of Rights has nothing to do w i t h t h a t question. The Court of Appeal d i d not have recourse t o the Charter of Rights t o answer the question whether the Motor V e h i c l e Act had been 379 passed t o promote a " l e g i t i m a t e end" . I t i s u n l i k e l y that such a question determined by the Charter would have f i t t e d i n our c o n s t i t u -t i o n a l t r a d i t i o n which i s based upon the p r i n c i p l e of " e x h a u s t i v i t y " . I t was c l e a r that the p r o v i s i o n i n the Motor V e h i c l e Act was designed to achieve a l e g i t i m a t e end. 378. Id., at.3. . ^  ^ 3 . 379. I t i s assumed that the provinces have the power t o deal w i t h highway t r a f f i c r e g u l a t i o n s . See P r o v i n c i a l Secretary of P r i n c e  Edward I s l a n d v. Egan (1941) S.C.R. 396. 125. In addition, assuming that the "end" was legitimate, i t should be noticed that the Court of Appeal did not introduce into Canada the American standards c o n t r o l l i n g the "means-end" r e l a t i o n s h i p . The i n v i -t a t i o n to do so was even stronger i n l i g h t of a dictum of Chief J u s t i c e 380 3 Laskin i n Morgentaler and quoted i n the Motor Vehicle Act Reference He s a i d about section 1(a) of the Canadian B i l l of Rights which gua-ranteed "due process of law" that, I am not, however, prepared to say, in t h i s e a r l y period of the elaboration of the impact of the Cana-dian B i l l of Rights upon federal l e g i s l a t i o n , that the p r e s c r i p t i o n s of s. 1(a) must be r i g i d l y confined to procedural matters. There i s often an i n t e r a c t i o n of means and ends, and i t may be that there can be a proper invocation of due process of law i n respect of federal l e g i s l a t i o n as improperly abridging a person's r i g h t to l i f e , l i b e r t y , s e c u r i t y and enjoyment of property. Such a reservation i s not, however, c a l l e d fo r i n the present case382 # Perhaps Laskin C.J. was w i l l i n g to introduce the "means-ends" control under the due process clause of the B i l l of Rights. However, i t was not an issue i n the Motor Vehicle Act Reference. The Court of Appeal did not look at the "substantive" content of the law in order to determine whether the means (section 94(2) of the Motor Vehicle Act as amended) which i n t e r f e r e d with the r i g h t to l i b e r t y , were s u b s t a n t i a l l y , d i r e c t l y or n e c e s s a r i l y r e l a t e d to a 380,. (1976) 1 S.C.R. 616. 381. The Motor Vehicle Act Reference, at 6. 382. (1976) 1 S.C.R. 616, at 633. 126. legitimate end of government. The means-end r e l a t i o n s h i p which, allows a number; of more or less " s t r i c t " standards was not an issue i n the Motor Vehicle Act. Reference. The " r a t i o n a l b a s i s " t e s t i s applied i n the United States where a law i n t e r f e r e s with a " r i g h t " not seen as "fundamental" i n the Consti-383 t u t i o n . In so f a r as the Motor Vehicle Act i n t e r f e r e s with a r i g h t not deemed "fundamental" (e.g. the r i g h t to drive a car) i t i s l i k e l y that i t would have passed the t e s t . The means (the p r o h i b i t i o n to drive on suspension or the creation of an "absolute l i a b i l i t y " offense leading to seven day's imprisonment) was r a t i o n a l l y r e l a t e d to i t s legitimate end (the p r o v i n c i a l power over the safety of c i r c u l a t i o n and t r a f f i c on • *. ^384 highways) ., However, i n so f a r as the Motor Vehicle Act i n t e r f e r e s with a "fundamental" r i g h t (e.g. freedom from incarceration) the phrase " p r i n -c i p l e s of fundamental j u s t i c e " could have been argued as an i n v i t a t i o n 385 to the court to " s c r u t i n i z e " more severely the means of t h i s Act Eut, beside the f a c t that the Constitution Act, 1867 expressly provides that the provinces can enact laws providing for prison sentences i n otherwise " v a l i d " p r o v i n c i a l laws such as the Motor Vehicle Act (see section 92(14) of the Constitution Act, 1867), the a p p l i c a t i o n of any 383. See United States v. Carolene Products Co., 304 U.S. 144 (1938). 384. See O'Grady v. Sparling (I960), S.C.R. 804 and Mann v. R. (1966) S.C.R. 238. 385. See United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. 127. " s t r i c t s c r u t i n y " standard would appear to be akin to a "wisdom" t e s t and as Chief J u s t i c e Laskin warned i n Morgentaler, i n the a p p l i c a t i o n of "substantive due process", There i s as much a temptation.. . as there i s on the question of u l t r a v i r e s to consider the wisdom of the l e g i s l a t i o n , and I think i t i s our duty to r e -s i s t i t i n the former connection as i n the l a t t e r ^ 7 . To summarize, then, I believe that the Court of Appeal of B r i -tish, Columbia did not introduce i n t o Canada the American "substantive due process". The standards which gave shape to t h i s concept were not even discussed in the decision. The importation of t h i s concept, e i t h e r in i t s pre-1937 or post-1937 form, would have been foreign to our Anglo-Canadian t r a d i t i o n s founded, along with other p r i n c i p l e s , on the exhaus-t i v i t y of power and on j u d i c i a l r e s t r a i n t . Such an importation would have been easier to j u s t i f y under section 1(a) of the Canadian B i l l of Rights because of the wording which suggested the wording of the American due process clauses. Such rea-soning would be very weak i n l i g h t of the s u b s t i t u t i o n of the phrase " p r i n c i p l e s of fundamental j u s t i c e " i n the Charter which contains nothing i n d i c a t i n g that i t means "due process of law". The mere f a c t that both phrases secure the same substantive r i g h t s , such as l i f e , l i b e r t y and s e c u r i t y , i s not s u f f i c i e n t ground to assimilate them. Other r i g h t s could have been written into section 7 of the Charter and 386. See supra, ch. I I I . . . 387. (1976) 1 S.C.R. 616, at 632-633. 128. the "principles of fundamental justice" would have applied to them in the same way. Who would maintain that the rights to l i f e , liberty and security mean that the individual has a right to a f a i r hearing because both, section 7 of the Charter and section 2(e) of the Canadian B i l l of Rights guarantee that those fundamental rights would not be deprived except in accordance with "the principles of fundamental justice"? The phrase "principles of fundamental justice" and the phrase "due process of law" should be interpreted in their own context. The fact that many authors read into the phrase "principles of fundamental justice" the interpretation given to the phrase "due process of law" is possible only because both phrases are at f i r s t glance so amorphous. Their broad and vague content invites the p a r a l l e l 3 ^ . It is misleading to talk about section 7 of the Charter in a way which suggests that the phrase "principles, of fundamental justice" is synonymous with "due process of law". These phrases are quite d i f -ferent. If section 7 allows the court to control the substantive con-tent of the law, i t should be through a reasoning which f i t s into our Canadian traditions. To reach such a result through a reasoning which suggests that section 7 contains a "substantive due process" would be to adopt a foreign tradition. In any event, the Court of Appealvof Br i t i s h Columbia in the Motor Vehicle Act Reference did not introduce in-to' Canada the concept of "substantive due process" such as developed in the United States. 388. See Brockelbank, "The Role of Due Process in American Constitu-tional Law", 39 Corn. L.Q. 561. CHAPTER VII THE CANADIAN SOURCES OF SUBSTANTIVE PRINCIPLES OF FUNDAMENTAL JUSTICE In t h i s l a s t chapter I w i l l propose a general standard f o r the in t e r p r e t a t i o n of the phrase " p r i n c i p l e s of fundamental j u s t i c e " . I w i l l show that these p r i n c i p l e s should be interpreted i n the l i g h t of the h i s t o r y of our common law. Though t h i s o r i g i n a l approach can give r e s u l t s s i m i l a r to the American idea of "due process of law" in general and "substantive due process" i n p a r t i c u l a r , the reasoning to reach such a r e s u l t w i l l d i f f e r completely. Consequently we w i l l come to the conclusion that section 7 of the Charter allows the court to control the substantive content of the law as well as i t s procedural content but i n a context which w i l l respect the Canadian c o n s t i t u t i o n a l t r a d i -t i o n s . Since the standard suggested i n t h i s thesis w i l l be i d e n t i c a l whether the issue concerns the substantive or the procedural content of the law (in contrast with the United States) the t r a d i t i o n a l dicho-tomy between procedural and substantive laws w i l l become i r r e l e v a n t . The content of the phrase " p r i n c i p l e s of fundamental j u s t i c e " i n section 7 of the Charter of Rights must be broad enough to encompass the p r i n c i p l e s of j u s t i c e previously protected through the f i c t i o n of the common law presumptions generally used to interpret the intention of the l e g i s l a t u r e . It does not mean, however, that those presumptions are the only means "to f i n d the p r i n c i p l e s of fundamental j u s t i c e . Other 130. " p r i n c i p l e s " can be found elsewhere and even created i n jurisprudence. Throughout the h i s t o r y of the common law, presumptions have played an important r o l e . They were created to protect and safeguard fundamental p r i n c i p l e s of the common law, and to deal with statutory v i o l a t i o n s of those p r i n c i p l e s . We saw e a r l i e r that there was a b r i e f time when i t appeared that the En g l i s h common law might develop an approach s i m i l a r to that of the American c o n s t i t u t i o n a l law. The common law, i t s e l f , was re-garded as fundamental law. We f i n d , therefore, many cases where the courts s a i d that a statute which would be contrary to the reason of the 389 common law would be void . For example, I have e a r l i e r c i t e d the famous dictum of Lord Coke i n Dr. Bonham's case (1610): When an Act of Parliament i s against common r i g h t and reasonj or repugnant or impossible to be per-formed, the common law w i l l control i t and adjudge such act to be void-^O. 389. It seems, however, that only one law has been i n v a l i d a t e d on these grounds. The law was impossible to apply anyway. See MacKay, "Coke-Parliamentary Sovereignty or the Supremacy of the Law?" 22 Mich..'L.''Rev: 215 (1924). 390. Dr. Bonham's Case (1610) 8 C. Rep. 114, at 118. See Plucknett, "Bonham's Case and J u d i c i a l Review" (1926) 40 Harv. L. Rev. 30; and Thorne, "Dr. Bonham's Case" (1938) 54 L.Q.R. 543. This obiter appears to have been inconsistent with what Coke said i n his Ins- t i t u t e s , v o l . IV, at 36T As adjudge Coke--supported the-supremacy of the common law and as a parliamentarian (when he was dismissed from h i s p o s i t i o n of Chief J u s t i c e of the King's Bench i n 1616) he supported the supremacy of Parliament: "(Parliament) i s so transcendant and absolute as i t cannot be confined e i t h e r f or causes or persons within any bounds." See Gough, Fundamental  Law i n En g l i s h C o n s t i t u t i o n a l H i s t o r y , Oxford: At the Clarendon Press, 1961. According to Gough, Coke meant only that the court would i n t e r p r e t statutes i n such a way as not to c o n f l i c t with these p r i n c i p l e s of reason and j u s t i c e . Id., at 35. 131. In Day v. Savage (1615), Hobart C.J. s a i d : Even an Act of Parliament, made against natural equity, as to make a man judge iri h i s own case, i s v o i d i n i t s e l f . . . In Callady v. Pil k i n g t o n (1701), Holt C.J. held that " i f an Act gives 392 away the property of a subject i t ought not to be countenanced" The reason of common law deemed as fundamental has been enforced i n 393 h i s t o r y by the theory of natural law developed mainly by Locke who 394 held the r i g h t to l i b e r t y or property to be sacred However, that strong p o s i t i o n taken by Lord Coke and other jud-ges soon became a mere presumption to be applied where the inten t i o n of 395 Parliament was ambiguous . The idea of supremacy of Parliament was a 396 growing notion which had been conceded by the courts i n the 18th century 391. Hobart 85, at 97. 392.. Callady. v. P i l k i n g t o n (1701), 12 Mod. 513. See also C i t y of Lon-don v. Wood (1701), 12 Mod. 669. 393. Locke, Second Treatise of Government. 394. : C i t y of London v. Wood (1701), 12 Med. 669; Callady v. Pil k i n g t o n (1701), 12 Med. 513 (per Holt C.J.); Bricy's Case (1697), 1 Salk. 348. I t would appear that the lawyers of the time agreed that there was a body of law deemed to be fundamental because i t was reasonable. See MacKay, "Coke-Parliamentary Sovereignty or the Supremacy of the Law?" 22.-Mich: L. Rev. 215 (1924). 395. See generally, Baker, An Introduction to Engli s h Legal History, London: Butterworths, 1979, at 183. 396. See Corry, "The Interpretation of Statutes", i n Driedger, The  Construction of Statutes, Toronto: Butterworths, 1974, at 121 f f . 132. England rejected the idea of fundamental law , such as; the reason of common law, and created the idea of the con s t i t u t i o n though i t remained unwritten. Tndeed the co n s t i t u t i o n r e f l e c t e d the p r i n c i p l e of the Supre-macy of Parliament. However, i t also r e f l e c t e d the i d e a l behind the old fundamental p r i n c i p l e s of common law in a more l i m i t e d way. The judges seem to have i n t h e i r minds ah i d e a l c o n s t i t u t i o n , comprising those fundamental rules of common law which seem e s s e n t i a l to the l i b e r t i e s of the subject and the proper government of the country. These rules cannot be repealed but by a d i r e c t and unequivoccal enactment. In the absence of express words: or necessary intendment, statutes w i l l be applied subject to them...398., Therefore the fundamental p r i n c i p l e s of common law s t i l l existed through the rules of construction of statutes i n general and presumptions i n p a r t i c u l a r . The courts assumed that several p r i n c i p l e s of common law were fundamental. The p r i n c i p l e s perhaps may be c a l l e d fundamental, not so much because they could not l e g a l l y be as-s a i l e d as because i t was assumed that no le g a l authority would wish to a s s a i l thero.399. 397. See Stewart v. Lawton 1 Bingham 374 f f . (1823), where the counsel pleaded Dr. Bonham's case. The court rejected the argument based upon the idea of fundamental law. 398. Keir, Lawson, Cases i n C o n s t i t u t i o n a l Law (4th ed.), Oxford: At the Clarendon-Press, 1967,-at 11. 399. Gough, Fundamental Law i n English C o n s t i t u t i o n a l History, Oxford: At the Clarendon Press, 1955, at 23. 133. It was the duty of the judges to protect those fundamental p r i n c i p l e s . In h i s book, Fundamental Law i n Engl i s h C o n s t i t u t i o n a l  History, W. Gough explained that i n p r a c t i c e those p r i n c i p l e s meant ...that l i b e r t i e s and r i g h t s of the subject, notably the r i g h t s of property and of personal freedom, were ordained f o r men by the w i l l of God, so that indeed, j u s t i c e and equity consisted mainly i n upholding them. There was a presumption that the law would protect these, and that no statute could be intended to da-mage them^OO. The courts created a range of presumptions i n order to do "jus-t i c e and equity". As Professors Keir and Lawson explain i n t h e i r book 401 Cases i n C o n s t i t u t i o n a l Law : Here the canons of i n t e r p r e t a t i o n followed by the judges embody i n an attenuated form the ancient doctrine, already referred.to, that there was a sense i n which the common law was fundamental. A statute which i s contrary to the reason of the common law or purports to take away a prerogative of the Crown i s none the less v a l i d , but i t w i l l , so f a r as i s po s s i b l e , be applied i n such a way to leave the Prerogative or the common.law rights of the subject i n t a c t . To t h i s extent the reason of the common law s t i l l p r e v a i l s ; we cannot say that Parliament cannot do any of these things, but we can s t i l l say that there i s a presumption against i t s doing them402. O r i g i n a l l y , therefore, the presumptions were an attempt to deter-mine the true intent of Parliament where a statute was not cl e a r . . Those 400. Gough, Fundamental Law i n E n g l i s h C o n s t i t u t i o n a l History, Oxford: At the Clarendon Press, 1955, at 23. 401. Keir, Lawson, Cases i n C o n s t i t u t i o n a l Law (5th ed.), Oxford: At the Clarendon Press, 1967. 402. Id., at 9. 134. intentions became so, important that today the presumptions themselves have taken on a new function^""": Only one conclusion can be drawn from the present j u d i c i a l addiction to the ancient presumptions and that i s that the presumptions have no longer any-thing to do with the intent of the l e g i s l a t u r e ; they are a means of c o n t r o l l i n g that intent. Together they form a sort of common law " B i l l of Rights"404, However, the supremacy of Parliament requires that, i n a statute, a c l e a r i n t e n t i o n that a presumption should be rebutted must be enforced by the courts. No law could be declared inoperative because of a v i o l a -t i o n of the fundamental p r i n c i p l e s safeguarded by the presumptions^^. The enactment of the Charter of Rights has obviously c u r t a i l e d the Supremacy of Parliament^^. To the extent that the presumptions 403., See e.g. v. E stab rooks Pontiac Buick Ltd. , Dec. 31, 1982, CA. N.B. Laforest J.A., at 7-13. 404. W i l l i s , "Statute Interpretation i n a N u t s h e l l " (1938) 16 Can. B. Rev.l, at 17. 405. Dicey s a i d i n h i s Introduction to the Study of the Constitution (9th ed.), London: MacMillan, at 39-40, that: "The p r i n c i p l e of Parliamentary sovereignty means neither more nor less than t h i s , namely, that Parliament thus defined has, under the E n g l i s h cons-t i t u t i o n , the r i g h t to make or unmake any law whatever; and f u r -ther, that no person or body i s recognized by the law of England as: having a r i g h t to override or set aside the l e g i s l a t i o n of Parliament. " 406. In Quebec Assn. of Protestant School Boards v. A.G. Quebec (1983). 140 D.L.R. (3d) 33, Mr. J u s t i c e Deschene said: "Previously... the courts only intervened i f Parliament purported to invade an exclu-sive f i e l d of j u r i s d i c t i o n of a province, or v i c e versa. The l a t -t e r prerogative of the courts s t i l l e x i s t s , but under the Charter, a new and considerable r e s p o n s i b i l i t y has been added. The Char-t e r i s part of the "Supreme Law of Canada": no Parliament and no Legislature may detract from i t except within the l i m i t s that i t allows." 135. protected "principles of fundamental j u s t i c e " , section 7 of the Charter gives them a constitutional status, which means that the Parliament or the Legislatures henceforth cannot rebut the p r i n c i p l e even with a clear 407 intention . Any statute which leads to the deprivation of one fun-damental r i g h t , concerning l i f e , l i b e r t y or security w i l l be bound to respect those "principles of fundamental j u s t i c e " . And the fact of going back to these presumptions established at common law, gives the court "objective and manageable standard" 4^. The purpose of t h i s paper i s not to enumerate a l l the "prin-ciples, of j u s t i c e " previously protected or recognized at common law. My point i s only to show that several presumptions, because of their s p e c i f i c role and h i s t o r i c a l importance, must be understood as safe-guards of the p r i n c i p l e s of fundamental justice that the Constitution now requires. This does not mean that the whole set of presumptions concerning statutory interpretation are included i n section 7 of the Charter. For example, unless the right to property can be attached to one of the rights enumerated, the range of presumptions created to protect the 407. It should be noted however that the Parliament and the Legisla-tures can always enact a law contrary to the "principles of fun-damental jx i s t i c e " i f they respect the l i m i t of section 1 of the Charter or the requirement of section 33 of the Charter. 408. Those standards were already claimed by Mr. Justice Laskin i n Curr v. The Q u e e n (1972) S.C.R. 889, at 899. 136. r i g h t to property remain mere presumptions without c o n s t i t u t i o n a l p r o t e c t i o n . It i s also d i f f i c u l t to see how the presumption against ' 410 change i n common law can become a " p r i n c i p l e of fundamental j u s t i c e " in'the sense o f section 7 since i t was not a presumption r e l a t e d to 411 the protection of i n d i v i d u a l r i g h t to l i f e , l i b e r t y or s e c u r i t y However, i t w i l l be up to the courts to decide which presumptions must be included. The f i e l d of administrative law, for example, provides a good i n d i c a t i o n of what has been considered at common law?as ''principles of j u s t i c e " . The p r i n c i p l e s of "natural j u s t i c e " must, without doubt, be entrenched i n section 7 of the Charter of Rights because Natural j u s t i c e means no more than j u s t i c e without any epithet. . . p t means) those desiderata which. .. we regard as e s s e n t i a l , i n c o n t r a d i s t i n c t i o n from the many extra precautions, h e l p f u l to j u s t i c e , but not indispensable to i t , which by t h e i r rules of evidence and procedure, our courts have made o b l i -gatory i n actual t r i a l s before themselves... But 409. See Cblet v. The Queen (1981) 119 D.L.R. (3d) 521 (S.Q.C.). However, i n so f a r as property r i g h t s are interpreted as being included i n the ri g h t to s e c u r i t y , the court should read within the context of the phrase " p r i n c i p l e s of fundamental j u s t i c e " the i n d i v i d u a l c i t i z e n ' s r i g h t not to be deprived of h i s property without compensation. See The Queen i n the.Right of New Bruns- wick v. Fisherman's Wharf Ltd. (1982),.135 D.L.R. (3d) 307, d i s -cussed i n Brandt, "Right to Property as an Extension of Personal S e c u r i t y — Status of Undeclared Rights" (1983) • 61 Can. B. Rev. 398. 410. Arthur v. Bokenham (1708), 11 Mod. 148. 411. See C6te, Interpretation des l o i s , Cowansville:. Les Editions B l a i s Inc., 1982. 137. we do require that they s h a l l observe those unwrit-ten rules and take those precautions which are fun-damental essentials of j u s t i c e . . . z . Those p r i n c i p l e s , p r e v i o u s l y could only be v i o l a t e d by a c l e a r 413 intention of Parliament . With the enactment of section 7, hence-f o r t h the l e g i s l a t o r w i l l also be bound to respect them. 41. Under t h i s l i n e of reasoning the rules against "sub-delegation" 415 or against t o t a l " d i s c r e t i o n a r y powers" should be prima f a c i e included in the content of " p r i n c i p l e s of fundamental j u s t i c e " where a law which allows them i n t e r f e r e s with the r i g h t to l i f e , l i b e r t y or s e c u r i t y . However, such an a p p l i c a t i o n has s t i l l to be demonstrated. 412. Green v. Blaker (1948) I.R: 242, at 268.. See -.generally,. Garant, "Fundamental Freedoms and Natural J u s t i c e " , i n Tarnopolsky, Beau-doin, The Canadian Charter of Rights and Freedoms, Toronto: Carswell, 1982, at 278. See also Hopkins,v. Smethwick Local Board  of Health (1890)... 24 Q.B.C. 712, at 716 where the judge speaks expressly of "fundamental j u s t i c e " . See also L ' a l l i a n c e des pro- fesseurs catholiques de Montreal v. Labor Relation Board of Que-bec (1953),, 2 S.C.R. 140, at 147. 413. L ' a l l i a n c e des professeurs catholiques de Montreal v. Labor Rela- t i o n Board of Quebec, i d . , at 154: "A mon av i s , i l ne faudrait r i e n de moins qu'une declaration expresse du l e g i s l a t e u r pour mettre de c6te cette exigence (audi alteram partem) qui s*applique a tous les tribunaux et a tous les corps appeles a rendre une decision qui aurait pour e f f e t d'annuler un d r o i t possede par un i n d i v i d u . " 414. The maxim delegatus non potest delegare i s a rule of construction. See R. v. Harrison (1977) , 1 S.C.R. 238. It i s j u s t i f i e d by the rule of law and by the s t r i c t construction of statute. See W i l l i s "Delegatus non potest delegare" (1943) 21 Can. B. Rev. 257. The r u l e , however, i s not absolute. The courts have already departed from that rule i n order to adopt an i n t e r p r e t a t i o n i n accordance with the modern government. See W i l l i s , id_., at 264. It i s obvious, therefore, that the incorporation of t h i s maxim i n s. 7 w i l l require nuances when i t i s time to apply i t to the act of Parliament. 415. P a d f i e l d v. M i n i s t e r of A g r i c u l t u r e , Fisheries and Food (1968) A.C. 997; R o n c a r e l l i v. Duplessis (1959) S.C.R. 121. 138. We can f i n d some o f those " p r i n c i p l e s " i n t e x t s concerning the 416 c o n s t r u c t i o n of s t a t u t e s . Therefore, the presumption against r e t r o -s p e c t i v e o p e r a t i o n ^ * ^ , against i n t e r f e r e n c e w i t h vested r i g h t s ^ * ' , 419 against i n j u s t i c e , unreasonableness or a b s u r d i t y , against i m p a i r i n g 420 o b l i g a t i o n , must, i n so f a r as t h e i r v i o l a t i o n would a f f e c t the fun-damental r i g h t s to l i f e , l i b e r t y and s e c u r i t y , be included i n s e c t i o n 7 421 of the Charter of Rights . Perhaps the most c o n t r o v e r s i a l presumption at common law which could be inc l u d e d i n s e c t i o n 7 i s the presumption against an unreasonable 416. See g e n e r a l l y Driedger, The Construction of S t a t u t e s , Toronto: Butterworths, 1974; Maxwell, On I n t e r p r e t a t i o n o f Statutes (12th ed.), London: Sweet § Maxwell, 1969; C6te, I n t e r p r e t a t i o n des  I b i s , Cowansville: Les E d i t i o n s B l a i s Inc., 1982. 417. P h i l l i p s v. Eyre . (1870).L.R. 6 Q.B. 1, at 23; West v. Gwynne (1911) .-, 2 Ch. 1 per Kennedy L.J. See a l s o Re Regina and Potma (1982) 136 D.L.R. (3d) 69. T r a d i t i o n a l l y t h i s presumption a p p l i e d o n l y when the content of the law was subs t a n t i v e . See Re Athlum- riey (1898) 2 Q.B. 551 at 551-552. I r o n i c a l l y t h i s p r i n c i p l e of "fundamental j u s t i c e " can reintroduce the dichotomy between subs-t a n t i v e and procedural content of the law i n t h i s context. 418. Spooner O i l s L t d . v. Turner V a l l e y Gas Conservation Board (1933), S.C.R. 629, at 638; A.G. f o r Canada v. H a l l e t S. Carey L t d . (1952),. A.C. 427, at, 450V 419. Arrow Shipping Co. Ltd. v. Tyre Improvement Commissioners (1894)_ A.C. 508; Coutts § Co. v. I.R.C. (1953) A.C. 267; and see A.G. v. Pri n c e Ernest Augustus of Hanover (1957)., A.C. 436. 420. Ditton's Case (1704).. 2 Selk. 490; Re A Debtor, No. 612 of 1960 (1964), 1 W.L.R. 807, at 817. 421. Other r u l e s could be included i n the phrase " p r i n c i p l e s of funda-mental j u s t i c e " . Even, perhaps, s e v e r a l r u l e s of i n t e r p r e t a t i o n such as the s t r i c t c o n s t r u c t i o n of penal s t a t u t e s : see Tuck §  Sons v. P r i e s t e r (1887),. 19 Q.B.D. 629, at 638; K e l l y v. O'Brian (1942) , O.R. 691,-at 694. 139. law'***'. This presumption i s more r e l a t e d to the intention of the l e g i s -l a t o r than to the protection of the l i f e , l i b e r t y and s e c u r i t y of the c i t i z e n . It i s sometimes assimilated to the "Golden Rule" which p r o v i -des that a court can ignore the l i t e r a l meaning of words i f the l i t e r a l 423 meaning would lead to an absurdity understood as unreasonable However assuming that the presumption against unreasonable law is now entrenched i n section 7 of the Charter — in so far as the unrea-sonable law i n t e r f e r e s with the r i g h t - t o l i f e , l i b e r t y and s e c u r i t y — i t brings to mind the concept of reasonable law developed i n the United 424 States under the doctrine of "substantive due process" . But, i t should be noted that the word "reasonable" i n th i s context must receive prima f a c i e an i n t e r p r e t a t i o n i n accordance with the common law. The i n v a l i d i t y of an Act deemed "unreasonable" has generally been r a i s e d i n 425 the f i e l d of administrative law. In Kruse v. Johnson i t was stated: I f , f o r instance, they were found to be p a r t i a l and unequal i n t h e i r operation as between d i f f e r e n t classes; i f they were manifestly unjust; i f they disclosed bad f a i t h ; i f they involved such oppres-sive or gratuitous interference with the ri g h t s of those subject to them as could f i n d no j u s t i f i c a t i o n 422. Artimiou v. Procopiou (1966) 1 Q.B. 878, at 888; Luke v. I.R.C. (1963) A.C. 557, at 577; A.G. v. Prince Ernest Augustus of Hano- ver (1957) A.C. 436; Gordon v. Cradock (1964) 1 Q.B. 503. See generally Maxwell, On the Interpretation of Statutes, London: Sweet $ Maxwell, 1969, at 199 f f . 423. See The Queen v. Qudn (1948) S.C.R. 508. 424. See supra, ch.„ I I I . 425. (1898).2 Q.B. 91. 140. i n the minds of reasonable men, the court might well say "Parliament never intended to give authority to make such rule s ; they are unreasonable and u l t r a v i r e s " 4 2 6 . Another statement of the meaning of "unreasonable" acts of au-t h o r i t y has been given i n Secretary of State f o r Education and Science 427 v. Tameside Metropolitan.Borough Council . Lord Denning sai d : No one can properly be l a b e l l e d as being unreason-able unless he' i s not only wrong but unreasonably wrong, so wrong that no reasonable person could s e n s i b l y take the view. A l l the more so when a man — be he a judge or a minis t e r — i s entrusted by Parliament with the task of deciding whether another person has acted, i s acting or i s proposing to act unreasonably. Espe-c i a l l y when the one who has to decide has himself his own views — and perhaps h i s own strong views — as to what should or should not be done. He must be very c a r e f u l then not to f a l l i nto the error — a very common erro r — of thinking that anyone with whom he disagrees i s being unreasonable. He may himself think the solution so obvious that the opposite view cannot be reasonably held by anyone. But he must pause before doing so. He must ask him-s e l f : "Is t h i s person so very wrong? May he not quite reasonably take a d i f f e r e n t view?" It i s only when the answer i s : "He i s completely wrong. No reasonable person would take that view" that he should condemn him as being u n r e a s o n a b l e 4 2 8 . 426. |l898) 2 Q.B. 91, at 99. See also Associated P r o v i n c i a l Pictures  Houses Ltd. v. Wednesbury Corporation (1947), 2 A l l . E.R. 680,- at 683. 427. (1977) A.C. 1014. This case has been quoted by Chief Ju s t i c e Deschene in Quebec Assn. of Protestant School Boards v. A.G. Quebec (1983). 140 D.L.R. (3d) 33, i n the context of s. 1 of the Charter of Rights and Freedoms. 428. Id., at 1025-1026. 141. In the same case, Lord Scarman s a i d : Moreover, the word "unreasonably" means not "mis-takenly" nor even "wrongly" but refers only to a s i t u a t i o n i n which the authority i s acting or pro-posing to act i n a way i n which, i n the circums-tances p r e v a i l i n g and on the expert advice a v a i l -able, no reasonable authority could have a c t e d 4 2 9 . That i n t e r p r e t a t i o n of the word "reasonable" has been adopted i n Cana-430 dian law i n B e l l v. The Queen . Mr. Just i c e Spence, speaking f o r the majority, s a i d : The by-law i n i t s device... comes exactly within Lord Russell's words as to be found to be "such, oppressive or gratuitous interference with the ri g h t s of those subject to them as could f i n d no j u s t i f i c a t i o n i n the minds of reasonable men"431. The idea of reasonableness i s also a very o l d one i n the common 432 433 law . It was already a strong l e g a l concept i n the 16th century We saw that Lord Coke considered i t to be a fundamental p r i n c i p l e of law overriding even a statute. As f a r as one can convince the court that 429. Id., at 1032. 43Q. (1979) 2 R.C.S. 212. 431. Id., at 223. 432. The tes t of "reasonableness" appeared at common law i n the context of custom. See A l l e n , Law i n the Making, Oxford: At the Claren-don Press, 1951, at 587 (Appendix - "Reasonableness of Custom"). 433. St. Germain, Dialogues i n En g l i s h between a Doctor of D i v i n i t y  and a Student i n the Laws of England (1523), f. 4 recto, quoted i n Gough, Fundamental Law i n Engli s h C o n s t i t u t i o n a l History, Oxford: At the Clarendon Press, 1961, at 17-18. See also H i l l v. Grange (3 & 4 P h i l i p and Mary), 1 Plowden, 164 (1557-58); E a r l  of Leicester v. Heyden (13 E l i z . ) , id_., at 384 (1571); and Fulmes-ton v. Stewart, 1 Plowden, 109. 142. i t i s now entrenched i n section 7 of the Charter of Rights, the counsel opposing the v a l i d i t y of the law s t i l l would have to reverse the burden imposed by the t e s t of reasonableness as understood at common law. It seems probable that the t e s t would apply a standard s i m i l a r to the 434 standard used i n the " r a t i o n a l b a s i s " t e s t i n American law a f t e r 1937 Experience withtthat t e s t suggests that with a very few exceptions, a l l statutes w i l l pass the t e s t . This; " r a t i o n a l b a s i s " t e s t i s known to our Canadian t r a d i t i o n . It has nothing to do with the "judgment" of parliament. I t has nothing to do with the "wisdom" of the l e g i s l a t i o n . Such a tes t of " r a t i o n a l b a s i s " has been applied i n the well-known Anti I n f l a t i o n Reference 435 (1976) . Laskin C.J. with whom Judson, Spence and Dickson J.J. agreed held that the court ...would be u n j u s t i f i e d i n concluding, on the sub-missions i n th i s case and on a l l the material put before i t , that the Parliament of Canada did not have a r a t i o n a l basis f o r regarding the A n t i - I n f l a -t i o n Act as a measure which i n i t s judgment, was temporarily necessary to meet a s i t u a t i o n of econo-mic c r i s i s impending the well-being of Canada as a whole and requ i r i n g Parliament's stern intervention i n the in t e r e s t s of the country as a.whole436-The A n t i - I n f l a t i o n Act was passed under the opening words of Sec. 91 of the Constitution Act of 1867. This power, c a l l i n g f o r the 434. See, supra, ch..-; I l l y 435. (1976) 2 S.C.R. 373. 436. Id., at 425. Emphasis added. 143. "peace, order, and good government of Canada" (p.o.g.g.), i s residuary and therefore can be compared with the American states' "police power". However, the court included four " t e s t s " under the p.o.g.g. power. One of them was the "emergency" t e s t . One of the questions i n that case was whether-the';extrinsic evidence put before the court or j u d i c i a l l y known showed that there was a r a t i o n a l basis f o r the Act "as a C r i s i s measure". It is: much l i k e the American " r a t i o n a l b a s i s " used to test an Act pas-sed as a "Health measure". Chief J u s t i c e Laskin sa i d : When, as i n this case, an issue i s r a i s e d that excep-t i o n a l circumstances underlie resort to a l e g i s l a t i v e power which may properly be invoked i n such circums-tances, the court may be asked to consider e x t r i n s i c material bearing on the circumstances alleged, both i n support of and i n denial of the lawful exercise of l e g i s l a t i v e authority. In considering such material and assessing i t s weight, the > burt does,not look at i t . i n terms of whether i t provides proof of the ex-ceptional circumstances as a matter of f a c t . The matter concerns s o c i a l and economic p o l i c y and hence governmental and l e g i s l a t i v e judgment... The e x t r i n - s i c material need go only so f a r as to persuade the  Court that there i s a r a t i o n a l basis for the l e g i s - l a t i o n which i t i s a t t r i b u t i n g to the head of power invoked i n t h i s case in support of i t s v a l i d i t y 4 3 ' ' . Thus, i f i t appeared that there was no " r a t i o n a l b a s i s " the l e g i s l a t i o n would have been an unconstitutional infringment of the p r o v i n c i a l power. In the United States, the power over "Health" invoked without " r a t i o n a l basis:" was an unconstitutional infringment of i n d i v i d u a l r i g h t s . That t e s t could be adopted i n the context of the Charter. 437. (.1976) 2 S.C.R. 373, at 423. Emphasis added. Indeed t h i s case was a review of the end. However i t i s an example which shows that the " r a t i o n a l b a s i s " t e s t i s not unknown to our c o n s t i t u t i o n a l law. On the other hand, I am not saying that section 7 of the Charter w i l l n e c e s s a r i l y allow the courts to review the r a t i o n a l basis of the end of any statute. See supra, ch. VI. 144. Nevertheless the j u s t i f i c a t i o n f o r t h i s standard of "reasonabi-l i t y " would have been d i f f e r e n t from that used i n the United States. In that country, the " r e a s o n a b i l i t y " of an act appeared before the use of "due process of law". It was i m p l i c i t i n the co n s t i t u t i o n i t s e l f . The States were l i m i t e d . Their t r a d i t i o n concerning Natural Law never l e f t that proposition i n question. Therefore "due process of law" en-forced the co n s t i t u t i o n and Natural Law. In Canada, such a standard of " r e a s o n a b i l i t y " (understood as " r a t i o n a l basis") would appear a f t e r the entrenchment of section 7 and because of i t . In Canada, before the enactment of the Charter of Rights, the power of each l e v e l of govern-ment was unlimited within i t s head of powers. There was no l i m i t of "rea s o n a b i l i t y " . That standard would be contrary to the p r i n c i p l e of the "supremacy of'Parliament". The drafters were not a f r a i d to see such a standard i n the Canadian c o n s t i t u t i o n . They even wrote i n the very f i r s t section of the Charter that i t guarantees the r i g h t s and freedoms set out i n i t subject only to such "reasonable l i m i t s " . In Quebec Assn. of Protestant School 438 Boards v. A.G. Quebec (1982) , Chief Ju s t i c e Deschenes sa i d that "a l i m i t i s reasonable i f i t i s proportionate to the objective sought by the l e g i s l a t i o n " . That conclusion came from a l i s t of precedents which had t r i e d to define what would be a reasonable l i m i t a t i o n of fundamental f i g h t s . The t e s t generally adopted was the " r a t i o n a l b a s i s " t e s t 438. (1983) 140 D.L.R. (3d) 33. 145. requiring a "reasonable r e l a t i o n s h i p " between the means and the end While the A n t i - I n f l a t i o n Reference asked f o r a " r a t i o n a l b a s i s " i n order to j u s t i f y Parliament's l e g i s l a t i n g under i t s residuary power, other cases i n Canadian law used i t to s c r u t i n i z e whether there was a r a t i o n a l r e l a t i o n s h i p between the means and the end. Such i s the case 440 in MacKay (1980) , where Mr. J u s t i c e McIntyre suggested that the t e s t f o r e q u a l i t y before the law would require a r a t i o n a l r e l a t i o n s h i p bet-ween the c l a s s i f i c a t i o n (means) and the end. These presumptions enumerated above deal with substance as well as procedure. Therefore, once the p r i n c i p l e s of j u s t i c e they p r o t e c t are entrenched i n section 7 of the Charter of Rights, the courts can be allowed to control the substantive as well as the prodedural content of the law. This j u d i c i a l review i s explained because the p r i n c i p l e s them-selves concern procedure and substance. For example, the p r i n c i p l e s of n a t u r a l j u s t i c e are generally procedural. The r i g h t to a f a i r hearing i s procedural. However, the p r i n c i p l e of j u s t i c e which asks f o r a rea-sonable law deals with the substantive content of the law. 439'. It can be argued that the adoption of "substantive due process" re q u i r i n g "reasonable" law would be absurd i n the l i g h t of s. 1 of the Charter. A statute which would i n f r i n g e on the l i b e r t y of the c i t i z e n would have to survive the same test twice. The s t a -tute would have to show a " r a t i o n a l b a s i s " ( i . e . a r a t i o n a l r e l a -tionship between the means and the end) under section 7 of-the Charter. And i f i t f a i l e d , i t would have to show again a " r a t i o n a l b a s i s " ( i . e . a r a t i o n a l r e l a t i o n s h i p between the means and the end) under section 1. Obviously i t would f a i l again. It somehow seems rather redundant. There i s no "reasonable" "unreasonable" l e g i s l a t i o n p ossible under an i d e n t i c a l t e s t . One could read together section 1 with a " r e a s o n a b i l i t y " standard i n s o f a r as the respective tests d i f f e r . 440. (1980) 2 S.C.R. 370, at 407. 146. The best example of t h i s proposition to date i s given by the Motor Vehicle Act Reference. In t h i s case the Court of Appeal of B r i -t i s h Columbia had to decide whether an "absolute l i a b i l i t y " offense leading to a mandatory seven days' imprisonment was consistent with the " p r i n c i p l e s of fundamental j u s t i c e " . The judges did not look at the question as a procedural problem. They monitored the substantive content of the law. It was held that i t i s a " p r i n c i p l e of fundamental j u s t i c e " that only a s l i g h t penalty may be given to an accused i f a law creates an absolute l i a b i l i t y offense — that i s , one which i s v i o l a t e d without knowledge of the e s s e n t i a l f a c t of the i n f r a c t i o n even i f the accused 441 took a l l reasonable care to know i t . Before Sault Ste-Marie (1978), a s l i g h t penalty was one of the c h a r a c t e r i s t i c s of the "absolute l i a b i -442 l i t y " offenses . With this case i t became one of the " c r i t e r i a " stated by Dickson J . to determine whether or not a p a r t i c u l a r p u b l i c 443 welfare offense belongs to the category of "absolute l i a b i l i t y " Consequently i t began to have some l e g a l s i g n i f i c a n c e . But while those " c r i t e r i a " were guides f o r the courts, with the Motor Vehicle Act  Reference they became an absolute requirement, binding both Parliament and the L e g i s l a t u r e s . 441. The Motor Vehicle Act Reference, at 11. 442. (1978) 2 S.C.R. 1299, at 1311. 443. Id., at 1326. 147. The Court of Appeal said: The conclusion can only be that the l e g i s l a t i o n i s inconsistent with the p r i n c i p l e s stated by Dickson J. (in Sault Ste-Marie) and which should be applied i n determining i n t o which of the three categories an offense f a l l s . . . Applying the reasoning of Mr. Ju s t i c e Dickson in the Sault Ste-Marie case i t i s our opinion that section 94(2) of the Motor Vehicle  Act i s inconsistent with the p r i n c i p l e s of funda-mental j u s t i c e 4 4 4 . The e f f e c t of this: decision, therefore, i s to c o n s t i t u t i o n a l i z e those " c r i t e r i a " through section 7 of the Charter of Rights. However, the Court of Appeal did not suggest any standard j u s t i f y i n g why i t should "give consideration to the p r i n c i p l e s which underlie the d i v i s i o n of 445 offenses i n t o three categories" . In so f a r as the judges held that Sault Ste-Marie dealt with one or more p r i n c i p l e s of fundamental jus-t i c e , the Motor Vehicle Act Reference should be taken s e r i o u s l y . It appears, however, that the Court of Appeal r e l i e d on factors which should not have been considered as " p r i n c i p l e s of fundamental j u s t i c e " in themselves. The court should have returned to these, presumptions established at common law i n order to decide whether the Motor Vehicle  Act i n t e r f e r e d with the r i g h t to l i b e r t y i n v i o l a t i o n of a " p r i n c i p l e of fundamental j u s t i c e " p r e v i o u s l y protected by them. The judges would have concluded that the law was inconsistent because i t v i o l a t e d the p r i n c i p l e that no one should be punished without f a u l t instead of holding 444. The Motor Vehicle Act Reference, at 11. 445. Id., at 10. 148. that i t was so because i t v i o l a t e d a c r i t e r i o n given by Mr. Ju s t i c e Dickson i n Sault Ste-Marie. I f they had given e f f e c t to the t r u l y fundamental p r i n c i p l e s , the Motor Vehicle Act Reference would have sug-gested a manageable standard which would have been consistent with our Anglo-Canadian t r a d i t i o n 4 4 ^ . The presumption i n favour of mens rea, has been created i n com-447 mon law to protect the i n d i v i d u a l r i g h t to l i b e r t y . It applied to 448 449 Acts imposing penalties . In R. v. Beaver the Supreme»,Court of Canada recognized the importance of t h i s p r i n c i p l e . The majority quoted the dictum of Lord Goddard,-C.J.: 446. One of the reasons why Mr. Ju s t i c e Laskin i n Curr v. The Queen C1972) S.C.R. 889, at 889-900 was reluctant to introduce the con-cept of "substantive due process" was p r e c i s e l y t h i s lack of standards. "...Compelling reasons ought to be advanced to j u s t i -f y the Court i n t h i s case to employ a statutory (as contrasted with a co n s t i t u t i o n a l ) j u r i s d i c t i o n to deny operative e f f e c t to a substantive measure duly enacted by a Parliament... Those rea-sons must r e l a t e to objective and manageable standards by which a Court should be guided... Neither reasons nor underlying stan-dards were offered here." In h i s Canadian B i l l of Rights, Pro-fessor Tarnopolsky added: "The various reasons given by Laskin, J. ( in Curr) f o r applying a substantive due process i n t e r p r e t a t i o n should s u r e l y be considered by our j u d i c i a r y even i f the B i l l of Rights were one day to be included i n the B.N.A. Act.'", Toronto: McClelland and Stewart Ltd., 1975. 447. Driedger, The Construction of Statutes, Toronto: Butterworths, 1974, at 137. See Brand v. Wood (1946) 175 L.T. 306; Harding v. T r i e (1948) 1 K.B. 695; R. v. Ctigullene (1961) 1 W.L.R. 858, at 860; R. v. Curr (1967) 2 Q.B. 944; R. v. Tolson (1889) 23 Q.B.D. 168 and Sherras v. DeRutzenr:(1895) 1 Q.B. 918. 448. 449. W i l l i s , "Statute Interpretation i n a Nutshell" (1938) 16 Can. B. Rev. 1, at 24. C1957) S.C.R. 531. 149. The general r u l e applicable to criminal cases i s actus.rion f a c i t reum n i s i mens s i t rea, and I ven-ture to repeat what I s a i d i n Brend v. Wood (1946) 62 T.L.R. 462, 463: " I t i s of the utmost:impor-tance f o r the protection of the l i b e r t y of the sub-j e c t that a court should always bear i n mind that unless a statute e i t h e r c l e a r l y or by necessary implication r u l e s out mens rea as a constituent part of a crime, the court should not f i n d a man g u i l t y of an offense against the criminal law un-less he has a g u i l t y mind 4 5^. The presumption i n favour of mens rea had been considered by the common law courts as a p r i n c i p l e of fundamental j u s t i c e protecting the r i g h t . t o l i b e r t y where a crime was at issue. For example i t was held i n Fowler v. Padget ( 1 7 9 8 ) t h a t : Bankruptcy i s considered as a crime, and the bank-rupt i n the old laws i s c a l l e d an offender: but i t i s a p r i n c i p l e of natural j u s t i c e , and of our law, that actus non f a c i t reum n i s i mens s i t rea. The concept of mens rea appeared by the end of the 12th century 452 under the influence of Roman law and p a r t i c u l a r l y of canon law . The idea of punishment came to appear inconceivable i n the case of a person who was morally blameless. Consequently the common law courts created several defenses to criminal l i a b i l i t y (such as ins a n i t y , infancy, i n t o x i -cation, mistake of fact) because moral g u i l t was based upon theppremise 450. Harding v. Price (1948) 1 K.B. 695, at 700. 451. (1798) 7 T.R. 509. See also Jodoin, "La Charte canadienne des d r o i t s et l'element moral des i n f r a c t i o n s " (1983), 61 Can. B. Rev. 211, who reaches also the same conclusion. 452. See Sayre, "Mens Rea", 45 Harv. L. Rev. 974 (1931-32), at 982 f f . for a good h i s t o r y of the concept of mens rea. 150. that the accused could know.and choose between good and e v i l . Mens rea was- then always required i n common law crimes and presumed i n statutory offenses-. The decline of t h i s presumption appeared i n the 19th century 453 when l e g i s l a t o r s began to create d i f f e r e n t "public welfare" offenses The problem faced by the courts was that the offense was not a crime i n the true sense and that the statute did not specif y any f a u l t require-454 ment . G l a n v i l l e Williams would have preferred that the courts i n t e r -pret such statutes i n the l i g h t of general p r i n c i p l e s of law, including the presumption of mens rea. He said : I f the courts i n s i s t e d upon a requirement of f a u l t t h i s would almost, c e r t a i n l y influence Parliament in the same d i r e c t i o n , while the ready concession of l i a b i l i t y without f a u l t by the judges n a t u r a l l y has the e f f e c t of devaluing the p r i n c i p l e of jus - t i c e ^ S . Sault Ste-Marie should be understood as a case following the t r a d i t i o n of common law. The Supreme Court created a new "presumption" that i n the absence of an i n d i c a t i o n to the contrary a defense of due diligence i s allowed f o r an i n d i v i d u a l accused of a "public welfare" 456 offense . This presumption i s based upon the same fundamental p r i n -c i p l e s underlying the "presumption" of mens rea as a constituent of a 453. R. v. Woodrow 0-846) 15 M. $ M. 404; R. v. Stephens (1866) L.R. 1 Q.B. 702; and see Sayre, "Public Welfare Offenses", 33 Col. L. Rev. 55 (1933). 454. See Williams, Textbook of Criminal Law, London: Stevens § Sons, 1978, at 905-906. 455. Id., at 906. Emphasis added. 456. 0978] 2 S.C.R. 1299, at 1325. 151. "crime" i n the r e a l sense: the court "should not assume that punishment 457 i s to be imposed without f a u l t " The context i n which Sault Ste-Marie has been decided was 458 straightforward ; there were only two categories of offenses: those 459 r e q u i r i n g the mens rea and those i r r e s p e c t i v e of f a u l t . The f i r s t applied to a crime i n a true s e n s e ^ ^ unless a clear i n t e n t i o n of the 461 l e g i s l a t o r was to dispense with proof of mens rea . The second, c a l -led absolute l i a b i l i t y , applied to "public welfare" offenses (not a true crime) unless the l e g i s l a t o r had indicated that a proof of mens 462 rea was required . Therefore, p r i o r to Sault Ste-Marie, Canadian courts had generally no choice but to apply one of those "two stark 463 a l t e r n a t i v e s " . However, i n A u s t r a l i a , New Zealand, sometimes i n 464 England, and i n several p r o v i n c i a l decisions , there were several 457. The Queen v. Chap i n (1979), -.2 S.C.R. 121, at 134. 458. See generally, Stuart, Canadian Criminal Law, Toronto: Carswell, 1982, at 149 f f . 459. It should be noted, however, that i t was not clear how or when one category was to be chosen over the other. See generally Stuart, i d . , at 161 f f . 460., I w i l l assume that a "true crime" i s an offense which requires prima f a c i e the mens rea. E.g. murder. 461. R. v. Beaver (1957), S.C.R. 531, at 537. 462. R. v. Pierce F i s h e r i e s Ltd. (1970). 5 C C C . 193 (S.C.C). 463. R. v. C i t y of Sault Ste-Marie (1978) 2 S.C.R. 1299, at 1312. 464. Proudman v. Dayman (1941) 67 C.L.R. 536 (Aus. H. L.); Sweet v. Parsley (1920) A.C 132 (H.L.). See generally Stuart, Canadian Criminal Law, Toronto: Carswell, 1982. 152. attempts to adopt a "Halfway Louse" between those two t r a d i t i o n a l cate-gories of "mens re a " and "absolute l i a b i l i t y " . The Supreme Court of Canada i n Sault Ste-Marie recognizes that there was a difference between "true crime" and "public welfare" offenses, because t h e l l a t t e r ...involves a s h i f t of emphasis from the protection of i n d i v i d u a l i n t e r e s t s to the protection of p u b l i c and s o c i a l i n t e r e s t s ^ ^ . However, the judges were obviously not at ease with the simple p o s s i b i -l i t y of "absolute l i a b i l i t y " f o r "public welfare" offenses. They adop-ted t h i s "halfway house" approach. 4^. This new category has been c a l -led " s t r i c t l i a b i l i t y " which preserves an element of f a u l t . Henceforth, any "public welfare" offense which i s not criminal i n the true sense w i l l prima f a c i e f a l l into this category. Thus we have three categories of offenses: 1. Offenses i n which mens rea, consisting of some p o s i t i v e state of mind such as in t e n t , know-ledge, or recklessness, must be proved by the prosecution e i t h e r as an inference from the nature of the act committed, or by ad d i t i o n a l evidence. 465. C1978] 2 S.C.R. 1299, at 1312. 466. "The correct approach., i n my opinion, i s to r e l i e v e the Crown of the burden of proving mens rea, having regard to Pierce F i s h e r i e s and to the v i r t u a l i m p o s s i b i l i t y i n most regulatory cases of proving wrongful i n t e n t i o n . In a normal case, the accused alone w i l l have knowledge of what Pie has done to avoid the breach and i t i s not improper to expect Mm to come forward with the evidence of due di l i g e n c e . This i s p a r t i c u l a r l y so when i t i s alleged, f o r example, that p o l l u t i o n was caused by the a c t i v i t i e s of a large and complex corporation. Equally, there i s nothing wrong with r e j e c t i n g absolute l i a b i l i t y and admitting the defense of reasonable care." Id., at 1325. 153. 2. Offenses i n which there i s no necessity f o r the prosecution to prove the existence of mens rea; the doing of the pro h i b i t e d act prima f a c i e im-ports the offense leaving i t open to the accused to avoid l i a b i l i t y of proving (on a balance of p r o b a b i l i t i e s ) that he took a l l reasonable care. This involves consideration of what a reasonable man would have done i n the circumstances. The defense w i l l be available i f the accused reason-ably believed i n a mistaken set of facts which, i f true, would render the act or omission inno-cent, or i f he took a l l reasonable steps to avoid the p a r t i c u l a r event. These offenses may properly be c a l l e d offenses of s t r i c t l i a b i l i t y . 3. Offenses of absolute l i a b i l i t y where i t i s not open to the accused to exculpate himself by showing that he was free of f a u l t 4 ^ ^ . It i s obvious from the decision that this " s t r i c t l i a b i l i t y category did not have the purpose of weakening the presumption of mens rea when a "true crime" i s at stake. In the case of true crimes there i s a presumption that a person should not be l i a b l e f o r the wrongful-ness of h i s act i f that act i s without mens rea... I would emphasize at the outset that nothing i n the discussion which follows i s intended to d i l u t e or erode that basic p r i n c i p l e ' s . One of the purposes of the decision was c l e a r l y to give to the accused charged with a "public welfare" offense a new defense which 467. (1978) 2 S.C.R. 1299, at 1325-1326. 468. Id., at 1303. See also The Queen v. Prue; The Queen v. B a r i l (1979) 2 S.C.R. 547, at 553. Chief J u s t i c e Laskin, f o r the majority, said: "Several passages i n h i s reasons (Dickson J . in Sault Ste-Marie) make clear that mens rea continued to be es-s e n t i a l to prove commission of a Criminal Code .offense." was not available under the "absolute l i a b i l i t y " category In this doctrine i t i s not up to the prosecution to prove negligence. Instead, i t i s open to the defen-dant to prove that a l l due care has been taken. This burden f a l l s upon the defendants as he i s the only one who w i l l generally have the means of proof. This would not seem u n f a i r as the a l t e r n a t i v e i s absolute l i a b i l i t y which denies an accused any defense whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant must only e s t a b l i s h on the balance of p r o b a b i l i t i e s that he has a defense of reasonable care^O. Therefore, the Supreme Court of Canada added a new presumption: "pu-471 b l i c welfare" offenses must f a l l into the second category which 472 -allows a defense of due diligence — unless a clear i n t e n t i o n of the 473 l e g i s l a t o r indicates otherwise. 469. In Strasser v. Roberge (1979) .,2.S.C.R. 953}' at 991. Mr. Ju s t i c e Dickson s a i d that the decision "embodies a p r i n c i p l e f o r the benefit of the accused on a p u b l i c welfare offense by the i n t r o -duction of a defense of reasonable care to avoid the structures of absolute l i a b i l i t y . . . " It should be noted, however, that many commentators have c r i t i c i z e d t h i s opinion on the grounds that the " s t r i c t l i a b i l i t y " category can absorb many offenses which used to require the proof of mens rea. See Harrison, "Sault Ste-Marie Mens Rea and the Halfway House: Public Welfare Offenses Get a Home of t h e i r Own" (1979). 17 0. H. L.J. 415, at 441; Braithewaite (1980). 1 Sup. Ct. L. Rev. 187; Stuart, Canadian Criminal Law, Toronto: Carswell, 1982, at 171. 470. Sault Ste-Marie (1978) 2 S.C.R. 1299, at 1325. 471. That category was the innovation of Sault Ste-Marie in. Canadian Law. "Public welfare offenses would, prima f a c i e , be i n the second category." (1978), 2 S.C.R. 1299, at 1326. See F o r t i n , "Viau "La reforme de l a re s p o n s a b i l i t y penale par l a Cour Supreme du Canada",(1979) ; 39 R..du B. 526, at 552. 472. Id., at 1325-1326. 473. "For a discussion of the cl e a r i n d i c a t i o n , see F o r t i n , Viau, "La riforme de l a re s p o n s a b i l i t e penale par l a Cour Supreme du Canada" (1979), 39 R. du B. 526, at 552 f f . 155. In order to determine t h i s c l e a r i n t e n t i o n , Mr. Ju s t i c e Dickson indicated d i f f e r e n t " c r i t e r i a " which can be viewed as guides to help the Courts f i n d into which category- of offenses a p a r t i c u l a r offense enacted by statute should be c l a s s i f i e d : Offenses which are criminal i n the true sense f a l l in the f i r s t category. Public welfare offenses would, prima f a c i e , be i n the second category. They are not subject to the presumption of f u l l mens  rea. An offense of t h i s type would f a l l i n the f i r s t category only i f such words as " w i l f u l l y " , "with i n ^ tent", "knowingly", or " i n t e n t i o n a l l y " are contained i n the statutory p r o v i s i o n creating the offense. On the other hand, the p r i n c i p l e that punishment should in general not be i n f l i c t e d on those without f a u l t applies. Offenses of absolute l i a b i l i t y would be those i n respect of which the Legislature had made i t clear that g u i l t would follow proof merely of the proscribed act. The o v e r - a l l regulatory pattern adopted by the Legi s l a t u r e , the subject matter of the l e g i s l a t i o n , the importance of the penalty, and the p r e c i s i o n of the language used w i l l be primary considerations i n determining whether the offense f a l l s i n t o the t h i r d c a t e g o r y ^ 7 4 . These are the " c r i t e r i a " that were c o n s t i t u t i o n a l i z e d by the Court of Appeal i n the Motor Vehicle Act Reference. Some of these " c r i t e r i a " i n dicated only whether the l e g i s l a t o r had a clear i n t e n t i o n to create an offense of "absolute l i a b i l i t y " . By incorporating them into section 7, the court used them to determine when the l e g i s l a t o r would be a l -lowed to create such an offense. The r a t i o n a l e behind Sault Ste-Marie was fundamental. Mr. Jus-t i c e Dickson set out the c o n f l i c t i n g values underlying the "public wel-f a r e " offenses: 474. (1978), 2 S.C.R. 1299, at 1326. 156. It i s e s s e n t i a l f o r s o c i e t y to maintain, through e f f e c t i v e enforcement, high standards of p u b l i c health and safety. P o t e n t i a l victims of those who carry on l a t e n t l y pernicious a c t i v i t i e s have a strong claim to consideration. On the other hand, there i s a generally held revulsion against punish-ment of the morally i n n o c e n t 4 ^ . The l a s t sentence of t h i s passage j u s t i f i e d the creation of a " s t r i c t l i a b i l i t y " because "arguments of greater force (were) advanced against 476 absolute l i a b i l i t y " . The court s a i d that "the most t e l l i n g i s that 477 i t v i o l a t e s fundamental p r i n c i p l e s of penal l i a b i l i t y " . It appears from t h i s context that those fundamental p r i n c i p l e s were the require-478 ment of mens rea or more generally the p r i n c i p l e of non-punishment 479 when an accused was t o t a l l y morally innocent The r e a l goal of Sault Ste-Marie was to restore as f a r as pos-s i b l e those b a s i c p r i n c i p l e s . The court created the category of " s t r i c t l i a b i l i t y " defined as a middle p o s i t i o n " f u l f i l l i n g the goals 475. (1978) 2 S.C.R. 1299, at 1310. 476. Td., at 1311. 477. Ibid. 478. See Stuart, Canadian Criminal Law, Toronto: Carswell, 1982, at 158. 479. Furthermore Mr. Ju s t i c e Dickson showed that the i n j u s t i c e created by the absolute l i a b i l i t y offense does not n e c e s s a r i l y lead to a higher standard of care: " I f a person i s already taking every reasonable precautionary measure, i s he l i k e l y to take a d d i t i o n a l measures, knowing that however much care he takes, i t w i l l not serve as a defense i n the event of breach? I f he has exercised care and s k i l l , w i l l conviction have a deterrent e f f e c t upon him or others? W i l l the i n j u s t i c e of conviction lead to cynicism and disrespect f o r the law, on h i s part and on the part of others? These are among the questions asked." (1978) 2 S.C.R. 1299, at 1311. 157. of p u b l i c welfare offenses while s t i l l not punishing the e n t i r e l y b l a -meless"^^. E s s e n t i a l l y i t gives a new defense to the accused. Mr. Ju s t i c e Dickson s a i d , "there i s nothing wrong with r e j e c t i n g absolute 481 l i a b i l i t y and admitting the defense of reasonable care" The creation of the " s t r i c t l i a b i l i t y " category had the purpose 482 of enforcing that fundamental p r i n c i p l e of j u s t i c e . The Supreme Court has t r i e d to restore i t as f a r as i t can be reconciled with the 483 goal of the "public welfare" offenses . However, because of the doc-t r i n e of supremacy of Parliament the Court had to y i e l d to a cl e a r i n t e n t i o n i n a statute which would v i o l a t e that p r i n c i p l e of j u s t i c e . Before the Charter, the " s t r i c t l i a b i l i t y " category, l i k e the "mens 'rea" category, could be at most a presumption. It seems p l a u s i b l e to i n f e r that the Supreme Court of Canada would have been w i l l i n g to completely r e j e c t "absolute l i a b i l i t y " . However, i t had to respect the p r i n c i p l e of the supremacy of Parliament. I f a l e g i s l a t u r e had the intention of creating such an offense, the courts would have no choice but to give e f f e c t to the in t e n t i o n . Howe ever, the courts would never presume that the l e g i s l a t u r e intended to 484 punish the morally innocent . They would enforce such "absolute 480. (1978)., 2 S.C.R. 1299, at 1313. 481. Id., at 1325. 482. X&., at 1313. 483. Id., at 1310. 484. See The Queen v. Chap i n (1979),. 2 S.C.R. 121, at 134. 158. l i a b i l i t y " offenses only where the intention of the l e g i s l a t u r e to do so 485 was c l e a r . Thus the courts would hold that any "public welfare" of-fense i s prima f a c i e i n the second category — which gives a defense to the accused — unless a clear i n t e n t i o n of the l e g i s l a t o r indicates the contrary. In A p r i l 1982, the enactment of the Charter of Rights has cur-t a i l e d the supremacy of Parliament. As f a r as the fundamental rights are concerned, the Constitution i s supreme. One of these rights i s per-sonal l i b e r t y , and the Constitution provides that no person can be de-prived of t h i s r i g h t "except i n accordance with the p r i n c i p l e s of funda-4 86 mental j u s t i c e " . In l i g h t of the h i s t o r y of common law, we must con-clude that under penal law, no person who i s without f a u l t should be deprived of h i s l i b e r t y . Any law which provided that an i n d i v i d u a l be imprisoned even i f he i s morally innocent must be declared of no force 487 and e f f e c t by the courts . Thus the category of "absolute l i a b i l i t y " offenses, c l e a r l y intended i n a statute, i s always inoperative i n so 488 f a r as i t i n t e r f e r e s with the personal r i g h t to l i b e r t y 485. We have already seen that the famous c r i t e r i a were a guide to discover such a clear i n t e n t i o n . 486. Section 7 of the Charter of Rights and Freedoms. 487. See section .52 of the Charter of Rights. 488. It w i l l be the duty of the courts to e s t a b l i s h an appropriate standard to enforce the p r i n c i p l e of fundamental j u s t i c e . We have seen that Mr. Ju s t i c e Dickson stated that the defense of due d i l i -gence was a good compromise between the requirement of f u l l mens rea..and absolute l i a b i l i t y (1978).. 2 S.C.R. 1299, at 1325. He said that " s t r i c t l i a b i l i t y was not u n f a i r because the "a l t e r n a t i v e i s absolute l i a b i l i t y which denies the accused any defense what-soever" ( s e e text accompanying note '470). The judges can then decide that t h i s defense i s always an appropriate standard 159. In the same way, section 7 of the Charter of Rights has c u r t a i l e d the supremacy of Parliament which allowed the l e g i s l a t o r to rebut the requirement of mens rea as a constituent part of a crime. As f a r as mens rea i s a p r i n c i p l e of fundamental j u s t i c e , any law which does not 48 require mens rea as a constituent part of a crime must be inoperative s u f f i c i e n t to enforce the p r i n c i p l e of j u s t i c e which i s at stake. However, t h i s defense was a very minimum standard. There were other possible compromises between the requirement of f u l l mens  rea and absolute l i a b i l i t y . Professor Stuart in h i s t r e a t i s e on Canadian Criminal Law, Toronto: Carswell, 1982, at 164, enume-rated f i v e of them: 1. mens rea, with the onus of proof reversed; 2. Gross negligence, tested o b j e c t i v e l y ; 3. Simple negligence, tested o b j e c t i v e l y ; 4. Category (2), with the onus of proof reversed; and 5. Category (3) with the onus of proof reversed. Professor Stuart then commented that: " I t would seem that the Sault Ste-Marie choice was the f i f t h category — the least favour-able to the accused. Mr. J u s t i c e Dickson nowhere explored the other p o s s i b i l i t i e s . " Nothing should prevent the courts from adopting a category more favourable.to the accused where i t would appear that the p r i n c i p l e of fundamental j u s t i c e (now guaranteed by the constitution) would receive better enforcement. (Especial-ly since such a category should be read i n r e l a t i o n to the pre-sumption of innocence which i s also entrenched i n s. 11(a) of the Charter of Rights f o r any person charged with an offense. That presumption can also be read within s. 7 i t s e l f i n so f a r as i t can be demonstrated that i t secures a p r i n c i p l e of fundamental j u s t i c e ; see R. v. Anson, June 8, 1982, Cty. Ct. B.C., Wetmore, J. On the other hand, the defense of due diligence w i l l always be a minimum standard allowed to the accused i n every case deal-ing with p u b l i c welfare offenses and i n t e r f e r i n g with the r i g h t to l i b e r t y . 489. It i s l i k e l y that the Court of Appeal would have concluded i n t h i s way too. The " c r i t e r i o n " underlying the f i r s t category was that every true crime requires prima facie,mens rea as an element of the offense. However, i t appears more i n accordance with the common law t r a d i t i o n to say that a r e a l crime does not require a mens rea because i t was a " c r i t e r i o n " given by Dickson to reco-gnize the offense of the f i r s t category, but because the mens rea has always been considered as a p r i n c i p l e of fundamental j u s t i c e established to protect the r i g h t to l i b e r t y . On the other hand, the mens rea can be viewed as a way to enforce the p r i n c i p l e that no one be punished without f a u l t . This p r i n c i p l e i s now entren-ched i n the C o n s t i t u t i o n . 160. Thus, any crime must contain a mental element (mens rea) and any "public welfare" offense leading to a deprivation of l i b e r t y must allow at l e a s t a defense of due diligence because there must be no punishment without f a u l t . Indeed, this approach would have led to the same conclusion drawn by the Court of Appeal of B r i t i s h Columbia i n the Motor Vehicle Act Reference. However, the d i s t i n c t i o n between the two l i n e s of reasoning is-more than a mere r h e t o r i c a l difference. In an appropriate case, the conclusions drawn from the two d i f f e r e n t l i n e s of reasoning can be quite contrary. Suppose, for example, that one day the Supreme Court of Canada held that a " f i n e " imposed by statute i n t e r f e r e s with 490 the i n d i v i d u a l r i g h t to l i b e r t y : take a statute which creates an "absolute l i a b i l i t y " offense e n t a i l i n g a f i n e of $25.00 on conviction. With the reasoning of the Court of Appeal the statute would not be inconsistent with section 7 of the Charter of Rights. It would appear that the f i n e i n such a case i s a s l i g h t penalty. In the Motor  Vehicle Act Reference i t was held that the nature of the penalty must be s l i g h t when an i n d i v i d u a l i s deprived of h i s l i b e r t y under an abso-lute l i a b i l i t y offense. On the other hand, according to the approach suggested i n t h i s a r t i c l e , the statute would be inconsistent with section.7 of the Charter because i t would appear that any statute which i n t e r f e r e s with the i n d i v i d u a l r i g h t to l i b e r t y v i o l a t e s the 490. The payment of a " f i n e " can be d i r e c t l y interpreted as a d e p r i -vation of l i f e , l i b e r t y or s e c u r i t y of the person. Or, i t can be a deprivation of i n d i v i d u a l l i b e r t y i f the person so punished does not pay and has to go to j a i l . 161. p r i n c i p l e of fundamental j u s t i c e which underlies the Sault Ste-Marie case which i s that no one be punished without f a u l t . According to this: approach, the nature of the "penalty" would indi c a t e whether or not an i n d i v i d u a l was being deprived of h i s " l i b e r t y " , not i f the statute v i o l a t e s a " p r i n c i p l e of fundamental j u s t i c e " . The approach suggested i n this a r t i c l e would have led to the conclusion that "absolute l i a b i l i t y " offenses are always inconsistent with the p r i n -491 c i p l e of fundamental j u s t i c e . However, they are only inoperative when the penalty, such as imprisonment — whether i t be one or seven days: — i n t e r f e r e s with the r i g h t to l i b e r t y , l i f e or s e c u r i t y . The " p r i n c i p l e s of fundamental j u s t i c e " established i n Sault  Ste-Marie' and i n the common law i n general allows the Court to control the substantive content of the law. They become therefore, supra-l e g i s l a t i v e . However, whatever " p r i n c i p l e s of j u s t i c e " w i l l be i n -cluded i n section 7 of the Charter of Rights, i t should not be f o r -gotten that they are guaranteed only to "such reasonable l i m i t s pres-cribed by law as can be demonstrably j u s t i f i e d i n a free and demo-492 c r a t i c s o c i e t y " . Therefore in proper circumstances i t i s probable that a l e g i s l a t u r e would be j u s t i f i e d to depart from our " p r i n c i p l e s of fundamental j u s t i c e " (e.g. i n times of emergency). Such an inten-493 t i o n can also be c a r r i e d out by the "notwithstanding" clause which 491. This conclusion a f f e c t s the one suggested by the defendant i n the reference. See The Motor Vehicle Act Reference, at 11. 492. Section 1 of the Charter of Rights and Freedoms. 493.. Section 33 of the Charter of Rights and Freedoms. 162. enables Parliament and the l e g i s l a t u r e to override section 7 by an 494 express declaration to t h i s e f f e c t . ; Otherwise the courts must give e f f e c t to section 7 of the Charter. 494.: See Hogg, Canada Act. 1982 Annotated, Toronto: Carswell, 1982, at 79. 1 6 3 . CONCLUSION The phrase " p r i n c i p l e s of fundamental j u s t i c e " i n sec t i o n 7 of the Charter of Rights and Freedoms must receive an i n t e r p r e t a t i o n i n accordance with, our own common law t r a d i t i o n s i n c o n s t i t u t i o n a l law. Such a premise follows the opinion written by the Privy Council i n 495 M i n i s t e r of Home A f f a i r s v. Fisher . In t h i s case the judge d i s -cussed the philosophy underlying the i n t e r p r e t a t i o n of a c o n s t i t u t i o n written i n the B r i t i s h c o n s t i t u t i o n a l t r a d i t i o n : This is: i n no way to say that there are no rules of law which should apply to the i n t e r p r e t a t i o n of a C o n s t i t u t i o n . A Con s t i t u t i o n i s a l e g a l i n s t r u -ment gi v i n g r i s e , amongst other things, to i n d i v i -dual r i g h t s capable of enforcement i n a court of law. Respect must be paid to the language which has been used and to the t r a d i t i o n and usages which have given meaning to that language. It i s quite consistent with t h i s , and with the recognition that rules of i n t e r p r e t a t i o n may apply, to take as a point of departure f o r the process of i n t e r p r e t a -t i o n a recognition of the character and o r i g i n of the instrument, and to be guided by the p r i n c i p l e of giving f u l l recognition and e f f e c t to those fundamental r i g h t s and freedoms with a statement of which the Con s t i t u t i o n commences^96> I have shown that the phrase " p r i n c i p l e s of fundamental j u s t i c e " shoul'd be inter p r e t e d i n the l i g h t of the common law presumptions generally used i n the i n t e r p r e t a t i o n of statutes. We saw that gene-r a l l y those presumptions have protected several p r i n c i p l e s that the 495. (1980) A.C. 319. 496. Id., at 329. See also A.G. v. Commonwealth (1975) 7 A.L.R. 599, at 604-606. 164. courts have judged of fundamental importance-to-the system of j u s t i c e . However, before A p r i l 1982, they were always threatened by a c l e a r contrary int e n t i o n of the Parliament, or the l e g i s l a t u r e s . The c o n s t i -t u t i o n a l i z a t i o n of these p r i n c i p l e s , i n section 7 of the Charter of Rights c u r t a i l e d the p r i n c i p l e which established the supremacy of Parliament. Henceforth the Parliament and the l e g i s l a t u r e s cannot deprive an i n d i v i d u a l of his l i f e , l i b e r t y or s e c u r i t y i n a manner contrary to the p r i n c i p l e s of fundamental j u s t i c e , unless i t i s done within the "reasonable l i m i t s prescribed by law as can be demonstrably 497 j u s t i f i e d i n a free and democratic s o c i e t y " .or through section 33 of the Charter which allows the Parliament or the l e g i s l a t u r e s of .a. province to derogate from section 7. Those " p r i n c i p l e s of fundamental j u s t i c e " can be procedural, such as: the p r i n c i p l e s of natural j u s t i c e , or substantive such as the p r i n c i p l e which requires that no one be punished without f a u l t . I i n s i s t e d upon the "substantive" side of the phrase " p r i n c i p l e s of fundamental j u s t i c e " i n order to show that the dichotomy between "procedure" and "substance" must be abandoned. We saw that the stan-dard used by the court to control the content of the law under sec-t i o n 7 of the Charter must be the same whether the content i s c l a s -s i f i e d as procedural or substantive. In e i t h e r case, the question must be whether a law which deprives an i n d i v i d u a l of his l i f e , l i -b e rty or s e c u r i t y does so according to the range of p r i n c i p l e s that 497. Section 1 of the Charter. 165. the courts i n the h i s t o r y of the common law have deemed of fundamental j u s t i c e to the point that they should be protected through means such as le g a l f i c t i o n s about the presumed intent of the l e g i s l a t u r e . It i s quite l i k e l y that most of the p r i n c i p l e s protected i n section 7 of the Charter of Rights w i l l be procedural. From time to time the judges have repeated the proposition that the h i s t o r y of l i b e r t y i s c l o s e l y r e l a t e d to the h i s t o r y of procedural safeguards. Chief J u s t i c e Laskin, f o r example, s a i d that, It i s no accident that the growth of l i b e r t y depended on procedural guarantees such as the writ of habeas  corpus.... The h i s t o r y o f common law t r a d i t i o n s shows how p e r c e p t i v e l y judges and. th e o r i s t s of the law saw the c e n t r a l i t y of r a t i o n a l procedures as the safe-guard of the l i b e r t y of those who were in opposition to the wielders of power 4 9 8. This; opinion i s shared by judges i n the United States. For example, 4 Mr. J u s t i c e Douglas i n J o i n t A n t i - F a c i s t Refugee Committee v. McGrath It is- not without s i g n i f i c a n c e that most of the pro-v i s i o n s of the B i l l of Rights are procedural. It i s procedure that s p e l l s much of the difference between r u l e by law and r u l e by whim or caprice. Mr. Jus t i c e Frankfurter s a i d i n McNabb v. U . S . ^ that "the h i s t o r y 498. Laskin, "The Judge and Due Process" (1972) - 5 Man. L. J. 235, at 237. 499. 341 U.S. 123 (1951). 500. 318 U.S. 332 (1943). 166. of l i b e r t y has lar g e l y been the h i s t o r y of observance of procedural safeguards." Therefore i t i s quite l i k e l y that section 7 of the Charter of Rights protects what the American, courts protect through the phrase "due process of law". For example^ '"'''' t h e i r "procedural due process" sometimes has been interpreted i n the l i g h t of the " p r i n c i p l e s of j u s t i c e " so rooted i n the t r a d i t i o n and conscience of our people as to be ranked as "fundamental" and therefore " i m p l i c i t i n the concept 502 of ordered l i b e r t y " or of the p r i n c i p l e s "fundamental to the Ame-r i c a n scheme of j u s t i c e . . . necessary to an Anglo-American regime or 503 ordered l i b e r t y " . Those American considerations about due process of law, though written i n the context of the theory of "incorporation" can obviously be used as a guide to int e r p r e t section 7 of the Char-r 504 t e r However, as f a r as section 7 allows the courts to control the substantive content of the law, the Canadian approach must be funda-mentally d i f f e r e n t from the American experience with "substantive due process". We saw that the Americans have a c o n s t i t u t i o n a l t r a d i t i o n 501. See Ratner, "The Function of the Due Process Clause", 116 U. Pal. L. Rev. 1048, C1948)'- at, 1054-1055. 502. See Palko v. Connecticut, 302 U.S. 319 (1937), at 325 (Cardozo, J . ) , quoting Snyder v. Massachussets, 291 U.S. 97 (1934), at 105. 503. Duncan v. Louisiana, 391 U.S. 145 (1968). 504. The "incorporation" i s the absorption of the f i r s t eight amend-ments in t o the Fourteenth Amendment. See supra, note 125. 167. which has rejected from the beginning the idea of supremacy of Par-liament. The l e g i s l a t i v e powers were not exhaustively d i s t r i b u t e d . Canada cannot merely borrow t h i s doctrine of "substantive due pro-cess" without doing violence to i t s own c o n s t i t u t i o n a l t r a d i t i o n s . Consequently I have suggested an approach which respects our Canadian c o n s t i t u t i o n a l t r a d i t i o n and which gives e f f e c t to the supre-macy of the c o n s t i t u t i o n . As was the case with "procedural due pro-cess", i t i s l i k e l y that the phrase " p r i n c i p l e s of fundamental jus-t i c e " gives some r e s u l t s which are s i m i l a r to the american "substan-t i v e due process". To what extent i t does so w i l l depend mainly on which p r i n c i p l e s the courts w i l l incorporate into section 7. For example, the c o n s t i t u t i o n a l i z a t i o n of the p r i n c i p l e that any govern-mental act must be reasonable, could require the courts to apply certain tests which would be s i m i l a r to the t e s t s defined i n the United States through the doctrine of "substantive due process". However, i t should not be concluded from t h i s thesis that the "presumptions" found at common.law are the only means of i d e n t i f y i n g the "principles, of fundamental j u s t i c e " . Other " p r i n c i p l e s " of fundamental j u s t i c e can e x i s t elsewhere i n jurisprudence. It also should not be concluded that those p r i n c i p l e s are frozen at the date of the enactment of the Charter of Rights. Those p r i n c i p l e s have always: evolved and should continue to do so. The courts are at l i b e r t y to f i n d and create new p r i n c i p l e s of fundamental j u s t i c e where i t appears necessary. For example, the defense based on 168. "ignorance of the law" can hardly be.claimed as a p r i n c i p l e of j u s t i c e f i r m l y rooted at common law*"*"1"". It does not mean that i t could never be so under section 7 of the Charter. 505T. See Hale, Pleas of the Crown (1680), at 42; Blackstone, Com- mentaries (1772), Vol. IV, at 27. 169. BIBLIOGRAPHY-. a) Books Abraham, H.J., Freedom and the Court, New York: Oxford University Press, 1967. Abraham, H.J., The J u d i c i a l Process: An Introductory Analysis of  the Courts of the United States, England and France, New York: Oxford U n i v e r s i t y Press, 1962. A l l e n , C.K., Law i n the Making (5th ed.), Oxford: At the Clarendon Press, 1951. Baker, J.H., An Introduction to English Legal History, London: Butterworths, 1979. Barrett and Bruton, C o n s t i t u t i o n a l Law (4th ed.), Mineola: The Foundation Press Inc., 1973. Beaudoin, G.A., Tarnopolsky, W.S., The Canadian Charter of Rights  and Freedoms, Toronto: Carswell, 1982. 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