R. v. Cornell, 1988 CanLII 64 (SCC), [1988] 1 SCR 461

r. v. cornell, [1988] 1 S.C.R. 461

Tom (Asmunt) Cornell Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada, the Attorney General of Quebec and the Attorney General of British Columbia Interveners

indexed as: r. v. cornell

File No.: 19347.

1987: February 25, 26; 1988: March 24.

Present: Dickson C.J. and Beetz, Estey, McIntyre, Wilson, Le Dain and La Forest JJ.

on appeal from the court of appeal for ontario

Constitutional law ‑‑ Canadian Bill of Rights ‑‑ Equality before the law ‑‑ Criminal Code provision not proclaimed in all provinces ‑‑ Whether or not non‑universal application resulting in breach of equality before the law ‑‑ Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1(b).

Constitutional law ‑‑ Charter of Rights ‑‑ Right to life, liberty and security of the person and right not to be deprived thereof except in accordance with the principles of fundamental justice ‑‑ Criminal Code provision not proclaimed in all provinces ‑‑ Whether or not application of Criminal Code provision in breach of s. 7 of the Charter ‑‑ Canadian Charter of Rights and Freedoms, s. 7 ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 234.1, as am.

Criminal law ‑‑ Mandatory roadside breath testing ‑‑ Section not proclaimed in all provinces ‑‑ Conviction of impaired driving in province where provision in force ‑‑ Whether or not non‑universal application resulting in breach of equality before the law ‑‑ Whether or not application of provision in breach of s. 7 of the Charter ‑‑ Whether or not provision under which conviction procured inoperative ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 234.1, as am. ‑‑ Criminal Law Amendment Act, 1975, S.C. 1974‑75‑76, c. 93, ss. 15, 102(3) ‑‑ Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1(b) ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 15.

Appellant was charged with failing or refusing to comply, without lawful excuse, with a police officer's demand for a roadside breath sample made pursuant to s. 234.1(1) of the Criminal Code. This section, while in force in the province where the offence had occurred, had not been proclaimed in all provinces. Before entering a plea of not guilty, appellant made a preliminary objection as to the constitutionality of s. 234.1. The judge ordered a stay of proceedings on the ground that s. 234.1 infringed both the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms and hence was inoperative. The Ontario Court of Appeal allowed the appeal from this judgment, vacated the stay of proceedings and ordered a new trial. The issue here is whether the non‑universal proclamation and application of the former s. 234.1 of the Criminal Code infringed the right to equality before the law recognized by s. 1(b) of the Canadian Bill of Rights or the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms.

Held: The appeal should be dismissed.

The fact that s. 234.1 of the Criminal Code was in force in Ontario but not in force in British Columbia and Quebec when the appellant was charged did not infringe the right to equality before the law recognized by s. 1(b) of the Canadian Bill of Rights. The inequality created by the non‑universal proclamation and application of s. 234.1 of the Code was justified by a valid federal objective.

"Equality before the law" does not require that impugned legislation be reviewed according to an exacting standard which would demand of Parliament the most carefully tailored, finely crafted legislation. Rather, the legislation should be examined in a general way to determine whether it is in pursuit of a valid federal legislative objective.

The concept of a valid federal objective clearly goes beyond legislative validity under the division of powers. There must be a federal objective that provides a reasonable justification for the particular inequality in the sense that the inequality is not clearly arbitrary or capricious but finds some legitimate basis in the particular legislative policy.

Parliament has unquestioned legislative authority under the division of powers to limit the territorial application of the criminal law. The general rule in s. 7 of the Criminal Code that its provisions apply throughout Canada does not preclude, as a matter of construction, an intention on the part of Parliament to authorize the proclamation of a particular provision of the criminal law in force in some provinces but not in others.

The burden is on the person invoking s. 1(b) of the Canadian Bill of Rights to show that an inequality created by federal legislation is not justified by a valid federal objective. Because of the impact that s. 234.1 would have on provincial law enforcement priorities, efficacy and allocation of resources in the operationally concurrent field of highway traffic control, it is reasonable to ascribe to Parliament, in enacting s. 102(3) of the Criminal Law Amendment Act, 1975, an intention that the Governor in Council should have authority to make the proclamation of s. 234.1 in a particular province dependent on the agreement of that province. This was, for the purposes of s. 1(b) of the Canadian Bill of Rights, a valid federal objective justifying the non‑universal application of s. 234.1 of the Criminal Code. The non‑universal application of s. 234.1 accordingly did not infringe the right to equality before the law recognized by s. 1(b) of the Canadian Bill of Rights.

To find constitutional protection for the right to equality before the law under s. 7 of the Charter in the present case would be contrary to the clear expression of legislative intention resulting from ss. 15 and 32(2) of the Charter that the constitutional protection of this right was not to take effect until April 17, 1985.

Cases Cited

Considered: The Queen v. Burnshine, 1974 CanLII 150 (SCC), [1975] 1 S.C.R. 693; Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56; R. v. Negridge (1980), 1980 CanLII 2820 (ON CA), 54 C.C.C. (2d) 304; MacKay v. The Queen, 1980 CanLII 217 (SCC), [1980] 2 S.C.R. 370; referred to: R. v. Rossignol, Ontario Provincial Court, Walneck Prov. Ct. J., February 17, 1984, unreported; R. v. Hufsky (1984), 14 O.A.C. 1; R. v. Speicher, Kivell and Rodney (1983), 1983 CanLII 330 (BC SC), 6 C.C.C. (3d) 262; R. v. Hamilton (1986), 1986 CanLII 4639 (ON CA), 57 O.R. (2d) 412, leave to appeal dismissed, [1987] 1 S.C.R. ix; R. v. Frohman (1987), 1987 CanLII 4266 (ON CA), 56 C.R. (3d) 130; R. v. Hardiman (1987), 1987 CanLII 134 (NS CA), 35 C.C.C. (3d) 226.

Statutes and Regulations Cited

Canadian Bill of Rights, R.S.C. 1970, App. III, s. 1(b).

Canadian Charter of Rights and Freedoms, ss. 7, 11(g), 15, 32(2).

Criminal Code, R.S.C. 1970, c. C‑34, s. 234.1(1), (2), (3), (4) [as enacted by S.C. 1974‑75‑76, c. 93, ss. 15, 102(3)].

Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, s. 36.

Motor‑vehicle Act, R.S.B.C. 1960, c. 253, s. 203.

Prisons and Reformatories Act, R.S.C. 1970, c. P‑21.

APPEAL from a judgment of the Ontario Court of Appeal (1985), 14 O.A.C. 2, allowing an appeal from a judgment of Walneck Prov. Ct. J. Appeal dismissed.

Yves L. J. Fricot, for the appellant.

Michael A. MacDonald and Brian Gover, for the respondent.

E. A. Bowie, Q.C., for the intervener the Attorney General of Canada.

Yves de Montigny, for the intervener the Attorney General of Quebec.

Joseph J. Arvay, for the intervener the Attorney General of British Columbia.

The judgment of the Court was delivered by

1. Le Dain J.‑‑The question raised by this appeal is whether the non‑universal proclamation and application of the former s. 234.1 of the Criminal Code, R.S.C. 1970, c. C‑34, as amended, respecting mandatory roadside breath testing, as a result of which s. 234.1 was not in force in the provinces of British Columbia and Quebec, infringed the right to equality before the law recognized by s. 1(b) of the Canadian Bill of Rights, R.S.C. 1970, App. III, or the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms.

2. The appeal is from the judgment on January 21, 1985 of the Ontario Court of Appeal (1985), 14 O.A.C. 2, allowing the Crown's appeal from the judgment on April 9, 1984 of Walneck Prov. Ct. J., who, on a charge that the appellant had failed or refused without reasonable excuse to comply with the demand of a police officer to provide forthwith a sample of breath into a roadside screening device, contrary to s. 234.1(2) of the Criminal Code, ordered a stay of proceedings on the ground that s. 234.1 was inoperative because, not having been proclaimed in force in British Columbia and Quebec, it infringed s. 1(b) of the Canadian Bill of Rights and ss. 7 and 11(g) of the Canadian Charter of Rights and Freedoms. The Court of Appeal vacated the stay of proceedings and ordered a new trial of the appellant.

I

I

3. The appellant was charged in an information that he "on or about the 18th day of December 1983 at the City of Thunder Bay in the said District of Thunder Bay, without reasonable excuse failed or refused to comply with a demand made to him by a peace officer under subsection (1) of Section 234.1 of the Criminal Code, in the circumstances therein mentioned to provide forthwith such sample of his breath as in the opinion of the peace officer is necessary to enable a proper analysis of his breath to be made by means of an approved road‑side screening device and, where necessary to accompany the peace officer for the purpose of enabling such a sample of his breath to be taken, contrary to Section 234.1(2) of the Criminal Code of Canada." On April 9, 1984, the Crown having elected to proceed by indictment, the appellant was arraigned before Walneck Prov. Ct. J. The appellant elected to be tried by the provincial court judge but before pleading not guilty he made a preliminary objection. He invoked the judgment of Walneck Prov. Ct. J. in the earlier case of R. v. Rossignol (February 17, 1984, unreported) which had ordered a stay of proceedings on the ground that s. 234.1 was inoperative because its non‑universal proclamation and application infringed s. 1(b) of the Canadian Bill of Rights and ss. 7 and 11(g) of the Charter. In ordering a stay of proceedings on the charge against the appellant Walneck Prov. Ct. J. applied his decision in Rossignol, in which he had expressed the view that a law which made certain conduct a criminal offence in some provinces but not in others offended the principle of equality before the law.

4. The Ontario Court of Appeal (Martin, Lacourcière and Finlayson JJ.A.) allowed the appeal from this judgment for the following reasons in the endorsement of Martin J.A.:

We agree with the Crown's submission that R. v. Hufsky, decided by this Court on September 18, 1984, is conclusive that s. 1(b) of the Canadian Bill of Rights does not render s. 234.1 inoperative because it has not been proclaimed in force in the Provinces of British Columbia and Quebec.

We are also of the view that s. 11(g) of the Charter has no application.

With respect to s. 7 of the Charter, without attempting to define the ambit of the right protected by that section, we are all of the opinion that the failure to proclaim s. 234.1 in force in all the provinces of Canada at the same time did not contravene the respondent's right not to be deprived of "life, liberty and security of the person" except in accordance with the "principles of fundamental justice".

We express no opinion with respect to the effect of s. 15 of the Charter, when it comes into force, on the failure of the Executive to proclaim s. 234.1 to be in force in the provinces of British Columbia and Quebec.

Accordingly, the appeal is allowed, the stay is vacated and a new trial is ordered on the information.

5. In R. v. Hufsky (1984), 14 O.A.C. 1, which was also appealed to this Court and argued at the same time as this appeal, the contention that the non‑universal proclamation and application of s. 234.1 of the Criminal Code infringed s. 1(b) of the Canadian Bill of Rights was rejected by the Ontario Court of Appeal (Howland C.J.O., Martin and Blair JJ.A.) for the following reasons in the endorsement of Howland C.J.O.:

Counsel for the appellant raised three grounds of appeal:‑‑

1. His first contention was that s. 234.1 of the Criminal Code ... was inoperative because it had not been proclaimed in British Columbia or Quebec and so infringed the right of the appellant to equality before the law in s. 1(b) of the Canadian Bill of Rights.

We are unable to accept this submission. We consider that the reasoning of this Court in R. v. Negridge (1980), 1980 CanLII 2820 (ON CA), 6 M.V.R. 255, 17 C.R. (3d) 14, 54 C.C.C. (2d) 304 (Ont. C.A.), is conclusive on this point.

6. In R. v. Negridge (1980), 1980 CanLII 2820 (ON CA), 54 C.C.C. (2d) 304, the relevant issue was whether s. 234(1) of the Criminal Code, respecting the offence of impaired driving, was inoperative as infringing s. 1(b) of the Canadian Bill of Rights because s. 234(2), providing for discharge on condition of submission to curative treatment, had not been proclaimed in force in Ontario. The Ontario Court of Appeal (Martin, Houlden and Morden JJ.A.) answered this question in the negative. Martin J.A., delivering the judgment of the Court, said at pp. 307‑8:

Manifestly, the purpose of s. 234(2) is to enable the Court, in appropriate cases, to choose a disposition the aim of which is curative rather than punitive. It is equally evident that Parliament contemplated that the necessary treatment facilities and staff would be provided by the Provinces. It is, therefore, entirely reasonable for Parliament to postpone the coming into force of s. 234(2) in a Province until that Province has made the necessary arrangements to provide appropriate facilities and staff for the treatment envisaged by its provisions.

Legislation enacted by the Parliament of Canada does not infringe s. 1(b) of the Canadian Bill of Rights by reason of the fact that it does not apply to all areas of Canada, where Parliament in enacting the legislation was seeking to achieve a valid federal objective: see R. v. Burnshine (1974), 1974 CanLII 150 (SCC), 15 C.C.C. (2d) 505 at pp. 510 and 513, 44 D.L.R. (3d) 584, [1975] 1 S.C.R. 693 at pp. 701 and 705.

The onus is upon the appellant to show that in providing that the provisions of s. 234(2) shall come into force in a Province only where it is proclaimed in force in that Province, Parliament was not seeking to achieve a valid federal objective: see R. v. Burnshine, supra, at p. 515 C.C.C., pp. 707‑8 S.C.R. The appellant has failed to discharge that onus. I would grant leave to appeal but dismiss the appeal against conviction.

7. The issues with respect to s. 7 of the Charter are the subject of the first and second constitutional questions stated by the Chief Justice in his order of November 20, 1986, as follows:

8. Does the non‑universal proclamation and application of s. 234.1 of the Criminal Code of Canada infringe or deny the rights and freedoms guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms?

9. If the non‑universal proclamation and application of s. 234.1 infringes or denies the rights and freedoms guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms, is s. 234.1 justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?

Before the hearing of the appeal the appellant abandoned the issues based on s. 15 of the Charter for which the third, fourth and fifth constitutional questions had been stated by the Chief Justice. Nor was s. 11(g) of the Charter relied on in this Court.

II

8. The former s. 234.1 of the Criminal Code provided for mandatory roadside breath testing as follows:

234.1 (1) Where a peace officer reasonably suspects that a person who is driving a motor vehicle or who has the care or control of a motor vehicle, whether it is in motion or not, has alcohol in his body, he may, by demand made to that person, require him to provide forthwith such a sample of his breath as in the opinion of the peace officer is necessary to enable a proper analysis of his breath to be made by means of an approved road‑side screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of his breath to be taken.

(2) Every one who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under subsection (1) is guilty of an indictable offence or an offence punishable on summary conviction and is liable

(a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both;

(b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and

(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.

(3) In proceedings under this section, where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion.

(4) In this section, "approved road‑side screening device" means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purpose of this section by order of the Attorney General of Canada.

9. Section 234.1 was enacted by s. 15 of the Criminal Law Amendment Act, 1975, S.C. 1974‑75‑76, c. 93, which was assented to on March 30, 1976. Section 102(3) of that Act provided that s. 15 thereof should come into force by proclamation as follows:

(3) The provisions of this Act set out in any following paragraph of this subsection, namely,

(a) section 15,

(b) subsection 14(2) and 17(2), or

(c) sections 89 to 94,

shall come into force in any province only upon a day fixed in a proclamation declaring the provisions of this Act set out in that paragraph to be in force in that province.

10. Section 234.1 was proclaimed in force in Ontario and Alberta on September 15, 1976, in Nova Scotia, New Brunswick, Newfoundland, the Northwest Territories and the Yukon Territory on November 1, 1976, in Manitoba on December 8, 1976, in Saskatchewan on January 1, 1977 and in Prince Edward Island on March 1, 1978. (SI/76‑110, Canada Gazette, 13 October, 1976, pp. 2778‑79; SI/76‑148, Canada Gazette, 8 December, 1976, pp. 3268‑69; SI/76‑174, Canada Gazette, 22 December, 1976, pp. 3424‑25; SI/77‑7, Canada Gazette, 12 January, 1977, pp. 161‑62; and SI/78‑34, Canada Gazette, 22 March, 1978, pp. 1061‑62.) Section 234.1 had not been proclaimed in force in the provinces of British Columbia and Quebec when it was repealed by s. 36 of the Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, which was assented to on June 20, 1985, and replaced by a new s. 238 of the Code, s. 238(2) of which corresponds to the former s. 234.1(1). Pursuant to s. 212(2) of the amending Act of 1985, which provides that s. 238(2) of the Code "shall come into force in any province on a day or days to be fixed by proclamation with respect to that province", s. 238(2) was proclaimed in force in each of the provinces on December 4, 1985 (SI/85‑211, Canada Gazette, 11 December, 1985, pp. 4873‑75).

III

III

11. The first issue in the appeal is whether the fact that s. 234.1 of the Criminal Code was in force in Ontario but not in force in British Columbia and Quebec more than seven years after its enactment, when the appellant was charged in December 1983, infringed the right to equality before the law recognized by s. 1(b) of the Canadian Bill of Rights, which provides:

12. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(b) the right of the individual to equality before the law and the protection of the law;

12. In this appeal and in the Hufsky appeal, which was argued at the same time, the appellants contended that the inequality created by the non‑universal proclamation and application of s. 234.1 of the Code was not justified by a valid federal objective, as that concept appears to have been applied by a majority in this Court in The Queen v. Burnshine, 1974 CanLII 150 (SCC), [1975] 1 S.C.R. 693, and subsequent decisions, but they also placed particular reliance on the meaning that was given to that concept by McIntyre J. in MacKay v. The Queen, 1980 CanLII 217 (SCC), [1980] 2 S.C.R. 370. In that case, after expressing the view that a valid federal objective must be one that not only falls within federal legislative competence under the division of powers but is also valid in the sense that it does not infringe the Canadian Bill of Rights, McIntyre J. said, at p. 406, that the test for determining whether there has been such an infringement is whether the inequality created by the challenged legislation is "arbitrary, capricious or unnecessary, or whether it is rationally based and acceptable as a necessary variation from the general principle of universal application of law to meet special conditions and to attain a necessary and desirable objective." To essentially the same effect he expressed the test at p. 407 as being "whether any inequality has been created for a valid federal constitutional objective, whether it has been created rationally in the sense that it is not arbitrary or capricious and not based upon any ulterior motive or motives offensive to the provisions of the Canadian Bill of Rights, and whether it is a necessary departure from the general principle of universal application of the law for the attainment of some necessary and desirable social objective." McIntyre J. further emphasized the requirement that a departure from the principle of equality must be necessary for the realization of the legislative objective as follows, at p. 408: "It must not however be forgotten that, since the principle of equality before the law is to be maintained, departures should be countenanced only where necessary for the attainment of desirable social objectives, and then only to the extent necessary in the circumstances to make possible the attainment of such objectives."

13. On the other hand, the respondent in this appeal and in the Hufsky appeal, as well as the supporting interveners, relied on what was said concerning the valid federal objective test by Dickson C.J., speaking for the majority, in Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56, where, after reviewing the jurisprudence of the Court with respect to s. 1(b) of the Canadian Bill of Rights, the Chief Justice, with whom Estey and Lamer JJ. concurred, said at p. 90:

This short history of "equality before the law" under s. 1(b) of the Canadian Bill of Rights demonstrates that a majority of the Court was never prepared to review impugned legislation according to an exacting standard which would demand of Parliament the most carefully tailored, finely crafted legislation. On the contrary, a majority of the Court was consistently prepared to look in a general way to whether the legislation was in pursuit of a valid federal legislative objective. This approach was followed in cases involving legislative distinctions on the basis of race, sex and age, and in cases involving profoundly important interests of the person asserting the equality right. The passages which I have quoted from these cases indicate that the Court was concerned with the merely statutory status of the Canadian Bill of Rights and the declaratory nature of the rights it conferred. I believe the day has passed when it might have been appropriate to re‑evaluate those concerns and to reassess the direction this Court has taken in interpreting that document.

14. The Chief Justice did not refer to the test formulated by McIntyre J. in MacKay, which was the one applied by the minority in Beauregard. Beetz J., dissenting, with whom McIntyre J. concurred, after quoting at length from the reasons of McIntyre J. in MacKay and stating that he adopted them, summed up the test in terms which emphasized the requirement of necessity, as indicated in the following passages from his reasons for judgment, at pp. 116 and 117:

The test which is emphasized throughout those reasons is that of the necessity of a specific discrimination with respect to the attainment of a desirable social objective . . . .

Furthermore, the test is all the more exacting in that it includes an essential element of proportionality; even where variation from the principle of universal application of the law is justified, the principle cannot be tampered with to a degree or to an extent which goes beyond what is necessary to reach a desirable social objective . . . .

15. The conclusion that must be drawn from Beauregard, with great respect, is that the test formulated by McIntyre J. in MacKay‑‑at least that part of it which requires that the departure from the principle of equality be necessary to the attainment of the legislative purpose‑‑has not been adopted by a majority in this Court as the test for the application of s. 1(b) of the Canadian Bill of Rights, and that, as held by the majority in Beauregard, it is too late to do so now.

16. The concept of a valid federal objective, as applied by the majority in this Court, clearly goes beyond legislative validity under the division of powers, but it has not been given more definition in the cases than that which is reflected in the passage quoted above from the judgment of the Chief Justice in Beauregard. I think the most that is implicit in the cases is that there must be a federal objective that provides a reasonable justification for the particular inequality in the sense that the inequality is not clearly arbitrary or capricious but finds some legitimate basis in the particular legislative policy. To that extent there may be some common ground between the majority approach to the valid federal objective test and that of McIntyre J. in MacKay.

17. The valid federal objective justifying a territorial limitation of the application of the criminal law that is implicit in Burnshine and Negridge is a criminal law purpose requiring special facilities for its implementation. Thus in Burnshine, which involved the validity or operative effect of a provision of the Prisons and Reformatories Act, R.S.C. 1970, c. P‑21, empowering the courts in British Columbia to sentence a person apparently under the age of twenty‑two years to a combination of determinate and indeterminate terms of imprisonment in particular penal institutions that could exceed the maximum term of imprisonment fixed by the Criminal Code for the offence of which the person was convicted, Martland J., delivering the judgment of the majority, said of the legislative purpose in that case, at p. 707: "It was made applicable in British Columbia because that Province was equipped with the necessary institutions and staff for that purpose." Similarly, in Negridge, in the passage I have quoted above, Martin J.A. said: "It is, therefore, entirely reasonable for Parliament to postpone the coming into force of s. 234(2) in a Province until that Province has made the necessary arrangements to provide appropriate facilities and staff for the treatment envisaged by its provisions." The provision for selective proclamation of s. 234.1 of the Code on a province by province basis might originally have been justified on a similar basis, as intended to permit the provinces time to acquire the equipment for roadside testing and to train personnel in the use of it. It was conceded, however, by the Attorney General of British Columbia that the failure to proclaim s. 234.1 in force in the provinces of British Columbia and Quebec after an elapse of more than seven years from the date of its enactment could not be justified on this basis.

18. The Attorney General of British Columbia and the respondent, who adopted his submissions on this issue, advanced a somewhat different federal objective in justification of the non‑universal proclamation and application of s. 234.1. It was submitted that because of the impact of s. 234.1 on provincial law enforcement priorities and allocation of resources in the operationally concurrent or overlapping field of highway traffic control, it was reasonable to ascribe to Parliament, in enacting s. 102(3) of the Criminal Law Amendment Act, 1975, an intention that the Governor in Council should have authority to make the proclamation of s. 234.1 in a particular province dependent on the agreement of that province.

19. The Attorney General of British Columbia submitted with leave of the Court an affidavit which showed that British Columbia did not agree to the proclamation of s. 234.1 because the province preferred to pursue its own program for the detection and deterrence of impaired driving, which included a provision in s. 203 of the Motor‑vehicle Act, R.S.B.C. 1960, c. 253, for roadside licence suspension. In the reply to the federal inquiry as to when the province wished s. 15 of the Criminal Law Amendment Act, 1975, which enacted s. 234.1, to be proclaimed in force in British Columbia, it was said: "With regard to section 15, we do not wish to have this section proclaimed in force in this Province. With section 203 of our Motor Vehicle Act presently extant, we feel that this is not a necessary technical aid which would be of any great assistance to us as things presently stand." The affidavit sets out statistics concerning the incidence and consequences, in accident, injury and public expense, of impaired driving in British Columbia, as well as the effects of the provincial "Counterattack Program" designed to reduce it, and tends to support the submission of the Attorney General of British Columbia that the question whether s. 234.1 should be proclaimed in force in British Columbia was viewed as one of law enforcement priorities, efficacy and allocation of resources. In supporting the submission of the Attorney General of British Columbia concerning the valid federal objective justifying the non‑universal proclamation and application of s. 234.1, the Attorney General of Ontario said: "The selective proclamation of section 234.1 recognized a lack of consensus as to whether the road‑side breath testing provisions would provide for the most effective allocation of resources in the effort to reduce the incidence of drunk driving" and that "in providing for the selective proclamation of s. 234.1, Parliament's objective was to obtain the consent and cooperation of the provinces and to preserve the legitimate provincial interest in experimenting in order to find the most effective means to reduce the incidence of impaired driving."

20. The provincial Attorneys General emphasized that in considering whether it is reasonable to ascribe to Parliament an intention to confer an authority to proclaim a provision of the criminal law in force in some provinces but not in others, one must bear in mind, as a constitutional point of departure, that Parliament has unquestioned legislative authority under the division of powers to limit the territorial application of the criminal law and that it has done so on several occasions. This was affirmed by both the majority and the minority in Burnshine. Martland J., delivering the judgment of the majority, said at p. 705:

It is quite clear that, in 1960, when the Bill of Rights was enacted, the concept of "equality before the law" did not and could not include the right of each individual to insist that no statute could be enacted which did not have application to everyone and in all areas of Canada. Such a right would have involved a substantial impairment of the sovereignty of Parliament in the exercise of its legislative powers under s. 91 of the British North America Act and could only have been created by constitutional amendment, or by statute. In my opinion the wording of the Bill of Rights did not do this, because, as has already been noted, by its express wording it declared and continued existing rights and freedoms. It was those existing rights and freedoms which were not to be infringed by any federal statute. Section 2 did not create new rights. Its purpose was to prevent infringement of existing rights. It did particularize, in paras. (a) to (g), certain rights which were a part of the rights declared in s. 1, but the right claimed by the respondent does not fall within any of those seven paragraphs.

The legislative authority of Parliament, under the division of powers, to give a territorial limitation to the application of the criminal law was also affirmed by Laskin J. (as he then was), dissenting, as follows, at p. 715:

As a matter of legislative power only, there can be no doubt about Parliament's right to give its criminal or other enactments special applications, whether in terms of locality of operation or otherwise. This has been recognized from the earliest years of this Court's existence: see, for example, Fredericton v. The Queen [(1880), 1880 CanLII 28 (SCC), 3 S.C.R. 505].

Given this unquestioned authority and its exercise from time to time, the general rule in s. 7 of the Criminal Code that its provisions apply throughout Canada does not, as suggested by the appellants in this appeal and in Hufsky, preclude, as a matter of construction, an intention on the part of Parliament to authorize the proclamation of a particular provision of the criminal law in force in some provinces but not in others.

21. As was held in Burnshine and Negridge, the burden is on the person invoking s. 1(b) of the Canadian Bill of Rights to show that an inequality created by federal legislation is not justified by a valid federal objective. In view of the reasons suggested by the provincial Attorneys General why Parliament may be presumed to have empowered the Governor in Council to proclaim s. 234.1 in force in a particular province only if the province agreed to its proclamation, I do not think that burden has been discharged. In my opinion, it is reasonable to ascribe those reasons and that intention to Parliament, in enacting s. 102(3) of the Criminal Law Amendment Act, 1975, and they constitute, for the purposes of s. 1(b) of the Canadian Bill of Rights, a valid federal objective justifying the non‑universal proclamation and application of s. 234.1 of Criminal Code. Accordingly, the fact that s. 234.1 was in force in Ontario but not in force in British Columbia and Quebec when the appellant was charged in December 1983 did not infringe the right to equality before the law recognized by s. 1(b) of the Canadian Bill of Rights.

IV

IV

22. I turn now to the appellant's contention based on s. 7 of the Canadian Charter of Rights and Freedoms, which provides:

23. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

24. The appellant contends that the right to equality before the law is a principle of fundamental justice within the meaning of s. 7, and that the non‑universal proclamation and application of s. 234.1 of the Criminal Code, which provides for imprisonment, thus infringes the right not to be deprived of liberty except in accordance with the principles of fundamental justice.

25. The initial position taken by the respondent and the interveners with respect to the contention based on s. 7 of the Charter is that to find constitutional protection for the right to equality before the law under s. 7 in the present case would be contrary to the clear expression of legislative intention resulting from ss. 15 and 32(2) of the Charter that the constitutional protection of this right was not to take effect until April 17, 1985.

26. I agree with this contention. I do so on the basis of the clear intention of the framers of the Charter as to when the constitutional protection of the right to equality before the law was to take effect, not on the basis of the maxim expressio unius est exclusio alterius, which was applied in R. v. Speicher, Kivell and Rodney (1983), 1983 CanLII 330 (BC SC), 6 C.C.C. (3d) 262, to which we were referred by counsel for the respondent and the interveners. As this Court has observed, there may be some overlap between s. 7 and other provisions of the Charter. It would be wrong, however, in my opinion, in view of the clear expression of legislative intention, to give effect to such protection as s. 7 might otherwise afford to the right to equality before the law in a case to which s. 15 could not apply because it was not in force at the relevant time. I note that the constitutionality, under s. 15 of the Charter, of the non‑universal proclamation and application of provisions of the criminal law, including s. 234.1, has been considered in several cases, notably by courts of appeal in R. v. Hamilton (1986), 1986 CanLII 4639 (ON CA), 57 O.R. (2d) 412 (Ont. C.A.); R. v. Frohman (1987), 1987 CanLII 4266 (ON CA), 56 C.R. (3d) 130 (Ont. C.A.), and R. v. Hardiman (1987), 1987 CanLII 134 (NS CA), 35 C.C.C. (3d) 226 (N.S.C.A.) Leave to appeal to this Court from the judgment of the Ontario Court of Appeal in Hamilton was sought on issues other than the constitutionality of the non‑universal proclamation and application of the criminal law provisions in question and refused, [1987] 1 S.C.R. ix. If that issue were to be determined under s. 7 of the Charter on the basis that equality before the law was a principle of fundamental justice within the meaning of that provision, it would inevitably have the effect of determining the issue for the purposes of s. 15 as well, since the analysis, including the application of s. 1, if necessary, would be essentially the same under the two provisions. This further reinforces my conviction that it would be wrong to apply s. 7 in the present case, in view of the clear expression of legislative intention that the constitutional protection of the right to equality before the law was not to take effect until April 17, 1985.

27. For these reasons I would dismiss the appeal and decline to answer the constitutional questions on the ground that s. 7 does not apply to the issue raised in the appeal.

Appeal dismissed.

Solicitors for the appellant: Macgillivray‑Poirier, Thunder Bay.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

Solicitor for the intervener the Attorney General of Canada: The Attorney General of Canada, Ottawa.

Solicitor for the intervener the Attorney General of Quebec: The Attorney General of Quebec, Ste‑Foy.

Solicitor for the intervener the Attorney General of British Columbia: The Attorney General of British Columbia, Victoria.