## Facts

- The provincial government referred the constitutionality of a British Columbia statute provision creating an offence of driving while prohibited or while a driver’s licence was suspended.
- The provision made the offence one of absolute liability: the prosecution needed only to prove driving while suspended/prohibited, without proving knowledge, intent, negligence, or any other fault.
- Conviction exposed an offender to penal sanctions, including mandatory minimum imprisonment (including at least seven days for a first offence) and fines.
- The British Columbia Court of Appeal concluded that combining absolute liability with mandatory imprisonment violated the right to liberty and the principles of fundamental justice protected by the Charter and declared the provision of no force or effect.
- The matter came before the Supreme Court of Canada on appeal in the context of the reference procedure.

## Issues

1. Whether an absolute liability offence that carries the possibility of imprisonment violates the principles of fundamental justice protected by Charter s. 7.
2. If Charter s. 7 is infringed, whether the infringement can be justified as a reasonable limit under Charter s. 1.

## Decision

- The Supreme Court of Canada dismissed the appeal and agreed the provision was unconstitutional.
- The Court held that an absolute liability offence cannot constitutionally carry any possibility of imprisonment because it creates a risk of imprisoning a person who is morally blameless.
- The Court concluded the deprivation of liberty resulting from the impugned scheme was not in accordance with the principles of fundamental justice under Charter s. 7.
- The infringement was not justified under Charter s. 1 on the record before the Court.
- The provision was declared of no force or effect under the Constitution’s supremacy clause.

## Legal Principles

- Charter s. 7 “principles of fundamental justice” include substantive constraints on criminal liability; they are not limited to procedural fairness.
- Where imprisonment (or any deprivation of liberty) is available, fundamental justice ordinarily requires a fault element; absolute liability paired with possible incarceration is unconstitutional.
- The constitutional defect is the combination of absolute liability and the possibility of imprisonment; absolute liability offences are not categorically invalid if no incarceration can result.
- A law that violates fundamental justice under Charter s. 7 will rarely be saved by Charter s. 1, absent exceptional circumstances.

## Conclusion

The Court held that exposing a person to imprisonment for an absolute liability offence violates Charter s. 7 because it permits incarceration without any requirement of fault, and the impugned provision was therefore invalid and not justified under Charter s. 1.


Reference re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (Can. 1985)