Substantive Principles of Fundamental Justice

• Author: Hamish Stewart
• Pages: 149-273

149

CHAPTER 4

SUBSTANTIVE

PRINCIPLES OF

FUNDAMENTAL JUSTICE

A. INTRODUCTION

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 that 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 as principles

of fundamental justice. If some of the principles discussed in Chap-

ter 4 seem more naturally characterized as procedural than substan-

tive — for example, the protection against self-incrimination discussed

in Section F(3), below in this chapter — or vice versa, the reader is asked

to remember that the distinction 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 fundamental

justice that apply particularly to the assessment of criminal liability.

1 Re BC Motor Vehicle Act, [1985] 2 SC R 486 [Motor Vehicle Re ference].

FUNDAMENTAL JUSTICE150

B. PRINCIPLES OF INSTRUMENTAL

R AT IONA LI T Y

Over the past several years, the Supreme Court of Canada has substan-

tially developed three principles of fundamental justice that relate to

the effectiveness of a law in achieving its purpose. These are t he nor ms

against arbitrary, 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

rationality.”2 Whenever a law fails to satisfy one of these norms, there

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 attain 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 infringement of rights and what the law seeks

to achieve — the situation where the l aw’s deprivation of an individual’s

life, liberty or security of the person is not connected to the purpose

of the law.” The second is a deprivation of “life, liberty or security of

the person which, though connected to its purpose, is so severe that it

violates our fundamental norms.”3 Moreover, the court has adopted a

highly individualistic 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 interests protected

by section 7, not with the social benef‌its that the law might achieve. In

Bedford, the Court explained the individualistic focus of these norms

as follows:

All three principles — arbitrariness, overbreadth, and gross dispro-

portionality — compare the rights infringement caused by the law

with the objective of the law, not with the law’s effectiveness. That

is, they do not look to how well the law achieves its object, or to

how much of the population the law benef‌its. They do not consider

ancillary benef‌its to the general population. Furthermore, none of

the principles mea sure the percentage of the population that is nega-

tively impacted. The analysis is qualitative, not quantitative. The

question under s. 7 is whether anyone’s life, liberty or security of

the person has been denied by a law that is inherently bad; a grossly

2 Canada (Attor ney General) v Bedford, 2013 SCC 72 at para 107 [Bedford], q uoting

from the f‌irst ed ition of this treatis e at 151.

3 Ibid at paras 108 –9.

Substantive P rinciples of Fundamenta l Justice151

disproportionate, overbroad, or arbitrary effect on one person is suf-

f‌icient to establish a breach of s. 7.4

In principle, this individualistic focus should make it easier for Char-

ter claimants 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 Charter.5 But the individualistic focus also raises some diff‌iculties

in understanding and applying the principles. I consider each of the

norms and the diff‌iculties that it raises in 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 part.”7 Similarly, inCarter v Canada (Attorney General), the

Court characterized an overbroad law as one that affects the section 7

interests in a way that “generally supports the object of the law, [but]

goes too far by denying the rights of some individuals in a way that

bears no relation to the object.”8 As noted above, the Court interpreted

this norm individualistically and explicitly held that a law that affects

even one person more than necessary to achieve its objective is over-

broad in section 7 terms. The Bedford/Carterconception of overbreadth

demands a tight f‌it between a law and its purpose for compliance with

se ct ion 7.

On the other hand, in R v Moriarity, 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 applicants’ overbreadth claim because they

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].