Substantive Principles of Fundamental Justice
| Author | Hamish Stewart |
| Pages | 149-273 |
149
CHA PTER 4
SUBSTANTIVE
PRINCIPLES OF
FUNDAMENTAL JUSTICE
A. INTRODUC TION
Because the principles of fundamental justice include both the princi-
ples of natural justice (or procedural fairnes s) and principles of substan-
tive justice,1 the cla ssification of a norm as “substantive” or “procedural”
has no special importance under section 7. Nonetheless, for the sake of
expository convenience, I have divided my di scussion of the principles
of fundamental justice as follows. In this chapter, I consider the prin-
ciples of fundamental justice t hat are usually characterized as substan-
tive; in Chapter 5, I consider the extent to which natural justice or the
principles of procedural fairness have been recognized a s principles
of fundamental justice. If some of the pr inciples discussed in Chap-
ter 4 seem more naturally cha racterized as procedural t han substan-
tive — for example, the protection against self-incriminat ion discussed
in Section F(3), below in this chapter — or vice versa, the reader is asked
to remember that the dist inction does not affect the characterization or
the function of a principle as fundamental.
Section B deals with certain principles of fundamental justice that
apply generally to any law affecting the interests protected by section 7,
while the remaining sections consider the principles of funda mental
justice that apply particul arly to the assessment of cri minal liability.
1 Re BC Motor Vehicle Act, [1985] 2 SC R 486 [Motor Vehicle Re ference].
FUNDAMENTAL JUSTICE150
B. PRINCIPLES OF INST RUMENTAL
R AT IONA LI T Y
Over the past several years, the Supreme Court of Canada has subst an-
tially developed three pr inciples of fundamental justice th at relate to
the effectiveness of a law in achieving its purpose. These are t he nor ms
against arbitrar y, overbroad, and grossly disproportionate laws. Each
of these norms identifies a particular defect of a law in relation to its
purpose; collectively, they are concerned with “fai lures of instrumental
rationa lity.”2 Whenever a law fails to satisfy one of these norms, t here
is a mismatch between t he legislature’s objective and the means chosen
to achieve it: the law is either inadequately connected to its objective
or goes too far in seeking to att ain it. As the Court put it in Canada
(Attorney General) v Bedford, these three norms are collectively con-
cerned with two types of flaws or “evils.” The first is “the absence of a
connection between the infr ingement of rights and what the law seeks
to achieve — the situation where the l aw’s deprivation of an individual’s
life, liberty or secur ity of the person is not connected to the purpose
of the law.” The second is a deprivat ion of “life, liberty or security of
the person which, though connected to its purpose, is so severe that it
violates our fundamenta l norms.”3 Moreover, the court has adopted a
highly individual istic understanding of these norms: notwithstanding
their focus on the relationship between means and ends, they are con-
cerned with the impact of the law on the individual interest s protected
by section 7, not with the social benefits that the law might achieve. In
Bedford, the Court explained t he individualistic focus of these norms
as follows:
All three pr inciples — arbitrariness, overbre adth, and gross di spro-
portionalit y — compare the rights infr ingement caused by the law
with the objective of the l aw, not with the law’s effectiveness. Th at
is, they do not look to how well the law ach ieves its object, or to
how much of the population the law be nefits. They do not consider
ancillar y benefits to the general popu lation. Furthermore, none of
the principles mea sure the percentage of the population that is nega-
tively impacted. The ana lysis is qualit ative, not quantitative. The
question under s. 7 is whether a nyone ’s life, libert y or security of
the person has b een denied by a law that i s inherently bad; a gros sly
from the first ed ition of this treatis e at 151.
3 Ibid at paras 108 –9.
Substantive P rinciples of Fundamenta l Justice 151
disproportionate, overbro ad, or arbitrary effect on one per son is suf-
ficient to establish a bre ach of s. 7.4
In principle, this indiv idualistic focus should make it easier for Char-
ter claimant s to establish a breach of section 7 and should shift the
burden of justifying the impact on the section 7 interest to section 1 of
the Char ter.5 But t he individualistic focus a lso raises some dif ficulties
in understanding and applying the principles. I consider each of the
norms and the difficulties that it raises i n turn.
1) A Law Must Not Be Overbroad
It is a principle of fundamental just ice that a law must not be overbroad
in relation to its own purpose. Put positively, it is a principle of funda-
mental justice that a law must be appropriately tailored to its purpose.
The appropriate degree of tailoring — whether a law must fit tightly or
merely avoid being too baggy — is not entirely clear from the recent
cases.
In Bedford, the Supreme Court of Canada said that a law is over-
broad if it “goes too far and interferes with some conduct that bears no
connection to its objective.”6 The Court added that such a law was arbi-
trary “in par t.”7 Similarly, in Carte r v Canada (Attorney General), the
Court characteri zed an overbroad law as one that affects the section 7
interests in a way th at “generally supports the object of the law, [but]
goes too far by denying the r ights of some individuals in a way t hat
bears no relation to the object.”8 As noted above, the Court interpreted
this norm indiv idualistically and ex plicitly held that a law that affect s
even one person more than necessar y to achieve its objective is over-
broad in section 7 terms. The Bedford/Carter conception of overbreadth
demands a tight fit between a law a nd its purpose for compliance with
se ct ion 7.
On the other hand, in R v Mor iarity, the Supreme Court of Canada
was prepared to accept that a law was not overbroad provided th at it had
some connection with, or was rationally connected to, its purpose. The
Court rejected the Charter applicant s’ overbreadth claim because t hey
had not shown that the provisions at i ssue were “not rationally connected
4 Ibid at para 123 [emphasi s in original].
5 See Chapter 6, and Ham ish Stewart, “Bedford and the Struct ure of Section 7”
(2015) 60 McGill Law Journal 575.
6 Bedford, above not e 2 at para 101.
7 Ibid at para 112 [emphasis in or iginal].
8 Carte r v Canada (Attorney Gen eral), 2015 SCC 5 at para 85 [Carter].
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