A Second Chance for the Harm Principle in Section 7? Gross Disproportionality Post-Bedford

• Author: Alexander Sculthorpe
• Position: Is pursuing a B.C.L./LL.B at the McGill Faculty of Law
• Pages: 71-78

APPEAL VOLUME 20

n

71

ARTICLE

A SECOND CHANCE FOR THE HARM

PRINCIPLE IN SECTION 7? GROSS

DISPROPORTIONALITY POSTBEDFORD

Alexander Sculthorpe*

CITED: (2015) 20 Appeal 71

INTRODUCTION

For what purposes can t he state legally imprison its citizens?  is basic question has been

the source of rich legal scholarship, from Jon Stuart M ill’s harm principle to the storied

debate between Sir Patrick Devlin and H.L. A. Hart over the place of legal moralism.1

e Canadian judiciary has not escaped the question. In the 20 03 R v Malmo-Levine

(“Malmo-Levine”) decision, the Supreme Court of Canada (“SCC”) rejec ted the notion of

the harm principle as a principle of fund amental justice and, thus, a source of protect ion

under section 7 of the Canadia n Charter of Rights and Fre edoms (th e “Charter ”).2 In a

powerful dissent, Justice Arbour found t hat the state can not resort to imprisonment

for acts that do not cause or risk harm to others. In subsequent decisions, the Court

has identied and elaborated on both the recognized principles of fundamenta l justice3

and the appropriate framework s for assessing ha rm.4 is paper wil l argue that the gulf

between the majority a nd Justice Arbour’s dissent in Malmo-Levine can best be add ressed

by adopting a harm sub-ru le within the fundamental principle of justice b arring ‘grossly

disproportionate’ laws. is harm sub-rule wi ll put forward that a criminal law w ill be

found to be grossly disproportionate where t he punishment is imprisonment and the

object of the law does not include the prevention of non-trivial ha rm or risk of harm to

others. is paper wil l begin by examining the C ourt’s exploration of the harm principle

in Malmo-Levine, as well a s its characteri zation of gross disproportionality in Bedford.

e proposed sub-rule will t hen be presented, and the case will b e made that its adoption

would serve to clari fy the values g uiding the applicat ion of the gross disproportionality

principle and also addres s the core of Justice Arbour’s concern in Malmo-Levine. Finally,

possible counter arguments will be considered, as wel l as the special c ircumstance of

morality ba sed crimes.

* Alexander Sculthorp e is pursuing a B.C.L./LL .B at the McGill Faculty of Law. The autho r would like

to thank Professor Alana Klein f or her thoughtful comments on an e arlier version of this paper.

1 John Stuart Mill, On Liberty (Bosto n: James R Osgood and Company, 1871) at 7-32; Patrick Devlin,

The Enforcement of Morals (London: Oxford University Press, 1965); HLA Hart, “Immorality and

Treason”, The Listener (30 July 1959) 162 at 162-63.

2 R v Malmo-Levine, 2003 SCC 74 (available on CanLII) [Malmo-Levine]; Canadian Charter of Rights

and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canad a Act 1982 (UK),

1982, c 11, s 7.

3 Canada (AG) v Bedford, 2013 SCC 72 (available on CanLII) [Bedford].

4 R v Labaye, 2005 SCC 80 (available on CanLII) [Labaye].