Duke v. The Queen
Encyclopedia
| Duke v. The Queen | ||||||
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 Supreme Court of Canada |
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| Argued March 7–8, 1972 Decided June 29, 1972 |
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| 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. | ||||||
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Duke v. The Queen [1972] S.C.R. 917 was a landmark decision by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on the Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
.
Background
The accused in the case was charged with drunk driving contrary to the Criminal Code of CanadaCriminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
after having been taken to a police station and given a breathalyzer
Breathalyzer
A breathalyzer or breathalyser is a device for estimating blood alcohol content from a breath sample...
. 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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
rules of natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
. 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
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
." This phrase had an ambiguous meaning, whereas the term natural justice was understood to provide certain procedural legal protections.
Decision
The Court found that fundamental justice was, for the purposes of this case, merely equivalent to natural justice.As the Court wrote,
- I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faithGood faithIn philosophy, the concept of Good faith—Latin bona fides “good faith”, bona fide “in good faith”—denotes sincere, honest intention or belief, regardless of the outcome of an action; the opposed concepts are bad faith, mala fides and perfidy...
, 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
Chief Justice of Canada
The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...
Gérald Fauteux
Gérald Fauteux
Joseph Honoré Gérald Fauteux, was Chief Justice of the Supreme Court of Canada from 1970 to 1973....
, 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
Denial of request
Denial of request is the refusal of one party to grant the request of another. Some acts that can be considered denial may include the refusal of a person or a group of people representing a company, organization, or government agency to provide what a client or one seeking to be a client has...
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
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
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 LaskinBora Laskin
Bora Laskin, PC, CC, FRSC was a Canadian jurist, who served on the Supreme Court of Canada for fourteen years, including a decade as its Chief Justice.-Early life:...
. 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 FreedomsCanadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
was adopted, section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven 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, namely the right to life, liberty, and...
of the Charter included a right to fundamental justice with respect to laws limiting the right to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
, liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
and security of person
Security of person
Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly mentioned and protected by the Constitution of Canada, the Constitution of South Africa and other laws around the...
. In Re B.C. Motor Vehicle Act
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia 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.