Substantive Principles of Fundamental Justice
| Author | Hamish Stewart |
| Profession | Faculty of Law, University of Toronto |
| Pages | 126-223 |
126
CHA PTER 4
SUBSTANTIVE
PRINCIPLES OF
FUNDAMENTAL JUSTICE
A. INT RODUC TION
Because the principles of fundamental justice include both the prin-
ciples of natural justice (or procedural fairnes s) and principles of
substantive ju stice,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 di scussion
of the principles of fundamental justice as follows. In this chapter, I
consider the principles of fundament al justice that have been recog-
nized by Canad ian courts and are usua lly characterized a s 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 principles discussed i n 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 characteri zation of a principle as fundamental.
Section B deals with certain principles of funda mental justice that
apply generally to any law affecting the intere sts protected by section
7, while the remaining Sections consider the principles of fundamental
justice that apply particul arly in criminal law.
Substantive P rinciples of Fundamental Ju stice 127
B. GENER ALLY APPLICABLE SUBSTANTIV E
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 th at 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 th at
a law must be precise enough “to give sufficient guidance for legal
de ba te .”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 indiv iduals can determine in advance the legal
implications of their conduct with a reas onable 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 legalit y unattainable by
an yo ne .”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 prov ided that “Any person who commits an act . . .
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 deserv ing 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 doe s 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 l aw might again serve as an ex ample: 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 pen al law, there are meaningful
thresholds before a police officer can exercise t he 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 situ ation. This uncertainly flows from
both the irreducible imprecision of lang uage and from the inevitably
value-laden nature of legal interpretation. So a law w ill not be uncon-
stitutionally vague simply because it leaves room for debate about its
application; indeed, the fact that there ca n be an intelligible debate
about the boundaries of the law’s application itself indicates that the
law is sufficiently precise. A l aw will meet the constitutional st andard
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 analysi s 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 part icular facts”;11 but rather if it provides
no intelligible standard at all.12
The test of sufficient precision is relatively easy to s atisfy. 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
constitut ion.
8 Nova Scotia Pharmaceutical Soc iety, above note 2 at 635–36.
9 Prostitution Reference, above note 4 at 1156.
10 Nova Scotia Pharm aceutical Society, above note 2 at 639.
11 Cochrane v Ontario (AG), 2008 ONCA 718 at para 44 [Cochrane].
12 An “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.
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