Duke v R

Last updated
Duke v R
Supreme court of Canada in summer.jpg
Hearing: March 7–8, 1972
Judgment: June 29, 1972
Full case nameGeorge Clinton Duke v Her Majesty The Queen
Citations [1972] S.C.R. 917; 1972 CanLII 2 (S.C.C.)
Prior historyJudgment for the Crown in the Court of Appeal for Ontario
Holding
The denial of the Crown to grant access to evidence to the accused does not violate the right to a fair trial if it is in accordance with the law; fundamental justice under the Canadian Bill of Rights is the same as natural justice.
Court membership
Chief Justice: Gérald Fauteux
Puisne Justices: Douglas Abbott, Ronald Martland, Wilfred Judson, Roland Ritchie, Emmett Hall, Wishart Spence, Louis-Philippe Pigeon, Bora Laskin
Reasons given
MajorityFauteux C.J., joined by Abbott, Martland, Judson, Ritchie, Hall, and Pigeon JJ.
ConcurrenceLaskin J., joined by Spence J.

Duke v R [1972] S.C.R. 917 was a decision by the Supreme Court of Canada on the Canadian Bill of Rights, concerning the right of an accused to make full answer and defence to a criminal charge.

Contents

Background

The accused in the case was charged with drunk driving contrary to the Criminal Code after having been taken to a police station and given a breathalyzer. While the breathalyzer test results were given to the accused's lawyer, the breath sample itself was not. This raised the concern as to whether the accused would be able to have a full defence, as is expected under common law rules of natural justice. According to the Supreme Court, the legislative history of the Criminal Code indicated that it was intended that the accused need not be given breath samples.

The case thus involved section 2(e) of the Bill of Rights, which states that everyone has "the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations." In Duke, the Court considered the meaning of the term "fundamental justice." This phrase had an ambiguous meaning, whereas the term natural justice was understood to provide certain procedural legal protections. [1]

Decision

The Court found that fundamental justice was, for the purposes of this case, merely equivalent to natural justice. [1]

As the Court wrote,

I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias, and in a judicial temper, and must give to him the opportunity adequately to state his case.

However, the author of the majority opinion, Chief Justice Gérald Fauteux, did say that he was not trying "to formulate any final definition" of fundamental justice.

The relevant section of the Bill of Rights also references a hearing. As Fauteux noted, there was no hearing in this case. However, it was alleged that if the accused's lawyer had been given the breath sample, a trial would follow in which evidence regarding the breath sample would be debated. Fauteux replied that the denial of access to evidence does not breach the right to a fair trial unless the law mandates access to such evidence. According to the Criminal Code and its history, such access is not guaranteed.

The case also involved consideration of section 2(f) of the Bill of Rights, which states that no law shall "deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause." However, the Court noted that section 2(f) does not contain more rights relevant to this case than section 2(e). Therefore, losing the case under section 2(e) implied also losing under section 2(f).

Concurrence

A short concurrence was written by Justice Bora Laskin. He objected to the majority's finding that the right to a fair trial is not breached if it is in a manner consistent with statutes.

Aftermath

In 1982, when the Canadian Charter of Rights and Freedoms was adopted, section 7 of the Charter included a right to fundamental justice with respect to laws limiting the right to life, liberty and security of person. In Re B.C. Motor Vehicle Act (1985), the Supreme Court once again had to consider the meaning of the term "fundamental justice." According to Justice Lamer, those who argued fundamental justice meant natural justice placed "Considerable emphasis" on the precedent established by Duke. Ultimately, however, the Supreme Court extended the meaning of fundamental justice beyond natural justice. [2]

Related Research Articles

<span class="mw-page-title-main">Supreme Court of Canada</span> Highest court of Canada

The Supreme Court of Canada is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts. The Supreme Court is bijural, hearing cases from two major legal traditions and bilingual, hearing cases in both official languages of Canada.

<i>Canadian Charter of Rights and Freedoms</i> 1982 Canadian constitutional legislation

The Canadian Charter of Rights and Freedoms, often simply referred to as the Charter in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all governments in Canada. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was proclaimed in force by Queen Elizabeth II of Canada on April 17, 1982, as part of the Constitution Act, 1982.

In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the legal system ought fairly to operate", per R v Malmo-Levine. These principles may stipulate basic procedural rights afforded to anyone facing an adjudicative process or procedure that affects fundamental rights and freedoms, and certain substantive standards related to the rule of law that regulate the actions of the state.

Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section: the right to life, liberty and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice.

<i>Reference Re BC Motor Vehicle Act</i> Supreme Court of Canada case

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

Section 2 of the Canadian Charter of Rights and Freedoms ("Charter") is the section of the Constitution of Canada that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or corporation. These freedoms can be held against actions of all levels of government and are enforceable by the courts. The fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly and freedom of association.

Section 24 of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated. Some scholars have argued that it was actually section 24 that ensured that the Charter would not have the primary flaw of the 1960 Canadian Bill of Rights. Canadian judges would be reassured that they could indeed strike down statutes on the basis that they contradicted a bill of rights.

Section 11 of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution that protects a person's legal rights in criminal and penal matters. There are nine enumerated rights protected in section 11.

<i>R v Askov</i> Canadian court case

R v Askov, [1990] 2 S.C.R. 1199, is a 1990 appeal heard before the Supreme Court of Canada which established the criteria and standards by which Canadian courts judge whether an accused's right to a speedy trial under the Canadian Charter of Rights and Freedoms, Section 11(b) "to be tried within a reasonable time" has been infringed.

<i>Rodriguez v British Columbia (AG)</i> Supreme Court of Canada case

Rodriguez v British Columbia (AG), [1993] 3 SCR 519 is a landmark Supreme Court of Canada decision where the prohibition of assisted suicide was challenged as contrary to the Canadian Charter of Rights and Freedoms ("Charter") by a terminally ill woman, Sue Rodriguez. In a 5–4 decision, the Court upheld the provision in the Criminal Code.

<i>Singh v Canada</i> Supreme Court of Canada constitutional case

Singh v Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177 is a 1985 case of the Supreme Court of Canada. It determined that refugee claimants had a constitutional right to an oral hearing, by the principles of fundamental justice. The judgment was an early decision under the Canadian Charter of Rights and Freedoms and was also decided under the Canadian Bill of Rights. It had a significant impact on immigration law, human rights law, constitutional law, and administrative law in Canada. The Singh decision resulted in amnesty being granted to tens of thousands of refugee claimants and sweeping reforms which gave Canada one of the most liberal and most expensive refugee systems in the world. The anniversary of the ruling, 4 April, has been observed in Canada as Refugee Rights Day.

<i>Reference re Remuneration of Judges of the Provincial Court</i> Supreme Court of Canada case

The Reference re Remuneration of Judges of the Provincial Court (P.E.I.) [1997] 3 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of provincial court judges. Notably, the majority opinion found all judges are independent, not just superior court judges and inferior court judges concerned with criminal law, as the written constitution stipulates. Unwritten constitutional principles were relied upon to demonstrate this, indicating such principles were growing in importance in constitutional interpretation. The reference also remains one of the most definitive statements on the extent to which all judges in Canada are protected by the Constitution.

R v Therens [1985] 1 S.C.R. 613 is an early Supreme Court of Canada decision on an accused's right to retain and instruct counsel without delay under section 10(b) of the Canadian Charter of Rights and Freedoms. The Court held that when a person was detained for the purpose of giving a breath sample under section 235(1) of the Criminal Code, they have the right to consult counsel. Since the police did not allow the accused to do so, they violated the accused's right to retain counsel. The Court ruled that the evidence was properly excluded.

<i>Blencoe v British Columbia (Human Rights Commission)</i> Supreme Court of Canada case

Blencoe v British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 is a leading Supreme Court of Canada decision on the scope of section 7 of the Canadian Charter of Rights and Freedoms, and on the administrative law principle of natural justice.

<i>R v Swain</i> Supreme Court of Canada case

R v Swain, [1991] 1 S.C.R. 933 is a leading constitutional decision of the Supreme Court of Canada on certain rights of the mentally ill in their criminal defence. The case concerned a constitutional challenge of the common law rule permitting the Crown to adduce evidence of an accused's insanity and section 542(2) of the Criminal Code, which allowed for the indeterminate detention of an accused who is found not guilty by reason of "insanity". The Court held that both the common law rule and the Code provision were unconstitutional. As a result, the Court created a new common law rule that was constitutional, and Parliament created new laws of what to do with individuals who were found not criminally responsible by reason of a mental disorder. The parties to the case were the appellant, Swain, the respondent, the Crown, and the following interveners: the Attorney General of Canada, the Lieutenant Governor's Board of Review of Ontario, the Canadian Disability Rights Council, the Canadian Mental Health Association, and the Canadian Association for Community Living.

<i>R v Bartle</i> Supreme Court of Canada case

R v Bartle, [1994] 3 SCR 173 is a leading Supreme Court of Canada decision on the right to retain and instruct counsel under section 10(b) of the Canadian Charter of Rights and Freedoms ("Charter"). The Court held that a police officer is required to hold off on his or her investigation upon arresting an individual until the detainee has been informed of his or her rights and given sufficient information and access to contact a private lawyer or duty counsel. The case applied the earlier Supreme Court of Canada decision R v Brydges. The judgment was released with three other decisions: R v Pozniak, R v Harper, R v Matheson and R v Prosper.

<i>R v Seaboyer</i> Supreme Court of Canada case

R v Seaboyer, [1991] 2 S.C.R. 577 is a leading Supreme Court of Canada decision where the Court struck-down a rape-shield provision of the Criminal Code as it violated the right to "full answer and defence" under sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The case was decided with R v Gayme.

<i>R v Prosper</i> Supreme Court of Canada case

R v Prosper, [1994] 3 S.C.R. 236 is a decision of the Supreme Court of Canada on the right to duty counsel upon arrest or detainment by police under section 10(b) of the Canadian Charter of Rights and Freedoms. The Court found that merely reading the accused his or her rights is insufficient to discharge the right to counsel; the police must also provide the accused with access to legal aid or duty counsel.

<i>R v Gladstone</i> Supreme Court of Canada case

R v Gladstone, [1996] 2 S.C.R. 723 is a leading Supreme Court of Canada decision on non-treaty Aboriginal rights under section 35 of the Constitution Act, 1982. The Court modified the Sparrow test for the extinguishment of Aboriginal rights to give more deference to the government in protecting commercial fishing rights.

<i>Canada v Schmidt</i> Supreme Court of Canada case

Canada v Schmidt, [1987] 1 S.C.R. 500, is a decision by the Supreme Court of Canada on the applicability of fundamental justice under the Canadian Charter of Rights and Freedoms on extradition. While fundamental justice in Canada included a variety of legal protections, the Court found that in considering the punishments one might face when extradited to another country, only those that "shock the conscience" would breach fundamental justice.

References

  1. 1 2 Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), page 985.
  2. Lamer J., Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.