Substantive Principles of Fundamental Justice

• Author: Hamish Stewart
• Profession: Faculty of Law, University of Toronto
• Pages: 126-223

126

CHAPTER 4

SUBSTANTIVE

PRINCIPLES OF

FUNDAMENTAL JUSTICE

A. INTRODUCTION

Because the principles of fundamental justice include both the prin-

ciples of natural justice (or procedural fairness) and principles of

substantive justice,1 the classif‌ication 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 discussion

of the principles of fundamental justice as follows. In this chapter, I

consider the principles of fundamental justice that have been recog-

nized by Canadian courts and 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 Chapter 4

seem more naturally characterized as procedural than substantive, or

vice versa, the reader is asked to remember that the distinction does

not affect the characterization 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 in criminal law.

1 Re BC Motor Vehicle Act, [1985] 2 SCR 486 [Motor Vehicle Reference].

Substantive P rinciples of Fundamental Ju stice127

B. GENERALLY APPLICABLE SUBSTANTIVE

PR INCI PLES

Substantive principles of fundamental justice are most often seen in

constitutional challenges to statutes, regulations, and common law

rules; they apply not only to the procedures for determining legal dis-

putes but also to the general norms that govern those disputes.

1) A Law Must Not Be Overly Vague

It is a principle of fundamental justice that a law must not be overly

vague. Stated positively, it is a principle of fundamental justice that

a law must be precise enough “to give suff‌icient guidance for legal

debate.”2

The requirement of suff‌icient precision f‌lows from the idea of the

rule of law. If the law is to guide human behaviour, it must be suf-

f‌iciently precise that individuals can determine in advance the legal

implications of their conduct with a reasonable degree of certainty.

If the law does not have this quality of suff‌icient precision, it cannot

guide conduct and to that extent is incompatible with the rule of law:

“obscure and incoherent legislation can make legality unattainable by

anyone.”3 This degre e of certainty, though particul arly important in the

criminal law,4 is a desirable feature of laws of all kinds,5 and is consti-

tutionally required whenever section 7 is engaged.

In R v Nova Scotia Pharmaceutical Society (Nova Scotia Pharmaceut-

ical Society), Gonthier J linked these rule of law requirements to two

related ideas. First, the law should provide the citizen with fair notice

of the legal implications of her conduct.6 A vague law does not give fair

notice; it might, or might not, prohibit or permit any conduct. In Refer-

ence re ss 193 and 195.1(1)(c) of the Criminal Code (the Prostitution Refer-

ence), Lamer J provided a historical example. A section of the pen al code

of Nazi-era Danzig provided that “Any person who commits an act . . .

2 R v Nova Scotia Pharmace utical Society,[1992] 2 SCR 606 at 639 [Nova Scotia

Pharmaceutical Socie ty].

3 Lon Fuller, The Morality of Law (New Haven: Yale Univer sity Press, 1964) at 63.

4 Reference re ss 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 SCR 1123 at

1152 [Prostitution Reference].

5 The vagueness sta ndard “applies to all enactme nts, irrespective of whet her they

are civil, cr iminal, admin istrative or other:” Nova Scotia Pharm aceutical Society,

above note 2 at 642.

6 Nova Scotia Pharmaceutica l Society, ibid at 633–35; see also Prostitution Reference,

above note 4 at 1155.

FUNDAMENTAL JUSTICE

128

which is deserving of punishment according to the fundamental con-

ceptions of a penal law and sound popular feeling, shall be punished.”7

No-one could tell in advance what this law prohibited or permitted,

or whether his conduct might be punishable under it. Second, the law

should limit the discretionar y power of off‌icials.8 A vague law does not

limit the actions that off‌icials can take under it and therefore makes

the interests protected by section 7 vulnerable to their discretion. The

Danzig penal law might again serve as an example: since any conduct

might be found to infringe it, there would be no criter ia for making the

decision to arrest or to prosecute someone for violating it. In contrast,

under a system of reasonably precise penal law, there are meaningful

thresholds before a police off‌icer can exercise the power of arrest.

The requirement of suff‌icient precision “does not require that a law

can be absolutely certain: no law can meet that standard.”9 There will

always be uncertainty about how even the most carefully and precisely

drafted law applies to a given situation. This uncertainly f‌lows from

both the irreducible imprecision of language and from the inevitably

value-laden nature of legal interpretation. So a law will not be uncon-

stitutionally vague simply because it leaves room for debate about its

application; indeed, the fact that there can be an intelligible debate

about the boundaries of the law’s application itself indicates that the

law is suff‌iciently precise. A law will meet the constitutional standard

if it can “enunciate some boundaries, which cre ate a zone of risk”; but a

law will be unconst itutionally vague if it “does not provide an adequate

basis for legal debate, that is for reaching a conclusion as to its me aning

by reasoned analysis applying legal criteria.”10 In other words, “a law

will not be struck down as vague simply because reasonable people dis-

agree as to its application to particular facts”;11 but rather if it provides

no intelligible standard at all.12

The test of suff‌icient precision is relatively easy to satisfy. Very few

Canadian laws are so devoid of intelligible content that they are un-

constitutionally vague. Even where statutes incorporate relatively im-

7 Prostitution Reference, ibid at 1151. See also Consisten cy of Certain Danzig Leg-

islative Decrees with Constit ution of Free City, Advisory Opinion, 1935 PCIJ (ser

A/B) No 65, giving t he opinion that the law was i nconsistent with the cit y’s

constitution.

8 Nova Scotia Pharmaceutical Soc iety, above note 2 at 635–36.

9 Prostitution Reference, above note 4 at 1156.

10Nova Scotia Pharm aceutical Society, above note 2 at 639.

11Cochrane v Ontario (AG), 2008 ONCA 718 at para 44 [Cochrane].

12An “unintel ligible provision gives in suff‌icient guidance for legal deb ate and is

therefore unconstitutionally vague”: Nova Scotia Pharmaceutical Soci ety, above

note 2 at 638.