Principles of Fundamental Justice

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General Principles

The "principles of fundamental justice" refer to the principles against which potentially infrining laws must be measured for compliance with s. 7 of the Charter. Section 7 states that:

Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The rights enumerated under s. 7 of the Charter can be compromised in the cases where the infringing law is in "accordance with the principles of fundamental justice".[1]That is, there are core values within the justice system that must prevail over these rights for the greater good of society. These include natural justice and substantive guarantees,[2] including rights guaranteed by the other legal rights in the Charter (i.e., rights against unreasonable search and seizure, guaranteed under section 8 of the Charter, and against cruel and unusual punishments, under section 12, are part of fundamental justice under section 7 as well). Other "Principles" are determined by the court and form the basis of the Canadian legal system.

It "must be a legal principle about which there is sufficient societal consensus that it is fundamental to the way in which the legal system should fairly operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty, or security of the person."[3]

The principle is "informed in part by the rules of natural justice and the concept of procedural fairness"[4]

Whether a particular procedure will conform to the PFJ is may require the judge "to balance the competing interests of the state and individual".[5]

Established Principles of Fundamental Justice include:

  • Arbitrariness
  • Vagueness
  • Overbreadth
  • Right to Silence
  • Minimum Level of Mens Rea
  • Right to Full Answer and Defence
  1. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30 at p.56
  2. first suggested in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 SCR 486
  3. R v Malmo-Levine; R v Caine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571
  4. Ruby v Canada (Solicitor General), [2002] 4 SCR 3, 2002 SCC 75 (CanLII) at para 39
  5. Ruby at para 39


It is a principle of fundamental justice that laws should not be arbitrary.[1] That is, the state cannot limit an individual's rights where "it bears no relation to, or is inconsistent with, the objective that lies behind [it]".[2]

  1. R v Malmo-Levine
  2. Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519


The "Principles of Fundamental Justice" require laws to have a clear and understandable interpretation so as to properly define the rule or offence.

A law is unconstitutionally vague if it does not have clarity enough to create "legal debate". There must be clarity of purpose, subject matter, nature, prior judicial interpretation, societal values, and related provisions. This does not prevent the use of broadly defined terms so long as societal objectives can be gleaned from it.[1]

When Parliament chooses to criminalize "preliminary" conduct overbreadth and vagueness become concerns.[2]

A law is unconstitutionally vague where it does not give a person fair notice of what to avoid and does not limit the discretion of law enforcement with clear and explicit legislative standards.[3]

Factors to be considered include:[4]

  1. the need for flexibility and the interpretative role of the courts;
  2. the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate, and
  3. the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist.

To determine if a law is vague the court should look at it's full interpretive context, including:[5]

  1. prior judicial interpretations;
  2. the legislative purpose;
  3. the subject matter and nature of the impugned provision;
  4. societal values; and
  5. related legislative provisions

  1. Ontario v Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 SCR 1031
    Nova Scotia Pharmaceutical Society
  2. United States of America v Nadarajah, 2010 ONCA 859 (CanLII)
  3. R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606, 1992 CanLII 72 (SCC)
    R v Levkovic, 2013 SCC 25 (CanLII) at para 2
  4. Nova Scotia Pharmaceutical Society
  5. Levkovic at para 48


The "Principles of Fundamental Justice" require that means used to achieve a societal purpose or objective must be reasonably necessary.

This principle is violated when the government, in pursuing a "legitimate objective", uses "means" that unnecessarily and disproportionately interfere with an individual's rights. [1]

When Parliament chooses to criminalize "preliminary" conduct overbreadth and vagueness become concerns.[2]

As an initial step to analysis of overbreadth is it necessary to "identify the law's purpose and effects" to determined"whether there is a disconnect between the two".[3]

The purpose must be considered in the "context of the legislative scheme" in which it is found.[4]

The identified purpose must be not too general or too specific.[5] The appropriate generality must be one of an "animating social value".[6]

  1. R v Heywood, 1994 CanLII 34 (SCC), [1994] 3 SCR 761
  2. United States of America v Nadarajah, 2010 ONCA 859 (CanLII)
  3. R v Moriarity, 2015 SCC 55 (CanLII) at para 24
  4. Moriarity, ibid. at para 24
  5. Moriarity, ibid. at para 28 ("If the purpose is articulated in too general terms, it will provide no meaningful check on the means employed to achieve it, almost any challenged provision will likely be rationally connected to a very broadly stated purpose... On the other hand, if the identified purpose is articulated in too specific terms, then the distinction between ends and means may be lost and the statement of purpose will effectively foreclose any separate inquiry into the connection between them.")
  6. Moriarity, ibid. at para 28
    Carter v Canada (AG), 2015 SCC 5 (CanLII) at para 76

Requirement of Mens Rea

The "principles of fundamental justice" require that criminal offences that have sentences involving prison must have a mens rea element.[1]

For many cases, however, an objective standard of negligence has been acceptable where the elements included a proof of a "marked departure from the standard of care that a reasonable person would take in the circumstances". This has been specifically affirmed for careless use of a firearm (86),[2] failing to provide the necessities of life (215),[3] dangerous operation of a motor vehicle (249),[4] manslaughter (234 to 236),[5] and offences composed of "causing bodily harm" (267, 272, 255).[6]

Objective fault has otherwise been endorsed as constitutional with the exception of a small group of the most serious offences.[7]

For more serious crimes such as murder that impose a stigma as part of the conviction, the minimum mental element must be proven on a "subjective" level.[8]

  1. See Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 SCR 486
    R v Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636
    R v Pontes, 1995 CanLII 61 (SCC), [1995] 3 SCR 44
    R v Hess, 1990 CanLII 89 (SCC), [1990] 2 SCR 906
  2. R v Gosset, 1993 CanLII 62 (SCC), [1993] 3 SCR 76
    R v Finlay, 1993 CanLII 63 (SCC), [1993] 3 SCR 103
  3. R v Naglik, 1993 CanLII 64 (SCC), [1993] 3 SCR 122
  4. R v Hundal, 1993 CanLII 120 (SCC), [1993] 1 SCR 867
  5. Creighton, 1993 CanLII 61 (SCC), [1993] 3 SCR 3
  6. R v DeSousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944
  7. Creighton, per Lamer CJ. ("an objective fault requirement is constitutionally sufficient for a broad range of offences other than
  8. R v Martineau, 1990 CanLII 80 (SCC), [1990] 2 SCR 633

Punishments That Shock the Conscience

Government decisions to extradite people are bound by section 7.[1] Moreover, it is possible that a potential punishment in the receiving country "shocks the conscience" to the extent that the Canadian government would breach fundamental justice if they extradited people there, and thus put them at risk of something shocking. In determining what would shock the conscience, the Court said some elements of fundamental justice in Canada, such as the presumption of innocence, could be seen as "finicky" and thus irrelevant to extradition. In contrast, the possibility of torture would be shocking.[2]

  1. Canada v Schmidt, 1987 CanLII 48 (SCC), [1987] 1 SCR 500
  2. Canada v Schmidt, ibid.

Right to Make Full Answer and Defence

Anyone accused of a criminal charge has the right to know the case against them and put forward a defence. In addition to being a principle of fundamental justice, this right is also protected by the right to a fair trial under section 11(d) of the Charter.

Its purpose is to "ensure that the innocent are not convicted".[1]

"Full answer and defence" (FAD) encompasses a number of things, including the right to counsel (also see section 10), the right to examine witnesses, and most importantly, the right to full disclosure by the Crown.[2]

The right to a fair trial and the principles of fundamental justice "do not guarantee defence counsel the right to precisely the same privileges and procedures as the Crown and the police".[3]

Right to FAD is not so broad as to give "right to pursue every conceivable tactic to be used in defending oneself against criminal prosecution".[4]

  1. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326
  2. R v Stinchcombe
  3. R v Quesnelle, [2014] 2 SCR 390, 2014 SCC 46 (CanLII), at para 64
    R v Mills, [1999] 3 SCR 668, 1999 CanLII 637 (SCC)
  4. Quesnelle at para 64

Right to Disclosure

See also: Disclosure

The right to disclosure is a principle of fundamental justice under s. 7 oft the Charter and is a component of the broader right to full answer and defence.[1]

  1. R v Carosella, [1997] 1 SCR 80, 1997 CanLII 402 (SCC), at para 37 ("The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter.")

Right to Silence

See also: Right Against Self-Crimination

The right to silence was a principle of fundamental justice.[1] Statements of the accused cannot be achieved through police trickery and silence cannot be used to make any inference of guilt.

  1. Hebert, [1990] 2 SCR 151, 1990 CanLII 118] (SCC)

Diminished Moral Culpability for Youths

See also: Sentencing Young Offenders

It is a PFJ that "young people are entitled to a presumption of diminished moral culpability"[1] and so the Youth Criminal Justice Act cannot create a presumption of an adult sentence upon youths.

  1. R v DB, 2008 SCC 25 (CanLII), [2008] 2 SCR 3 at para 70

Presumption of Innocence

See also: Presumptions#Presumption of Innocence

Conviction of the Innocent
It is also a principle of fundamental justice that "the innocent must not be convicted".[1]

  1. R v Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 at para 71 per McLachlin and Iacobucci JJ
    R v Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281 at para 24 per McLachlin J

Solicitor-Client Privilege

See also: Solicitor-Client Privilege

The right solicitor-client privilege is a principle of fundamental justice.[1]

  1. Canada (National Revenue) v Thompson, 2016 SCC 21 (CAnLII) at para 17
    R v McClure, [2001] 1 S.C.R. 445, 2001 SCC 14 (CanLII), per Major J, at p. 453 to 460

Border Security

There is some suggestion that "Canada's effective control over its borders" is important enough to be a "principle of fundamental justice".[1]

  1. R v Jones, 2006 CanLII 28086 (ON CA), para 31

Rejected Principles

Throughout the development of fundamental justice, petitioners have suggested many principles that the Courts have rejected for not being sufficiently fundamental to justice.

An element of "harm" is not an essential component to all criminal offences.[1]

There is no need for there to be symmetry between the actus reus and mes rea in all offences.[2]

Laws affecting children do not always have to be "in the best interest of the child".[3]

It is not a PFJ that Crown must consider the accused's aboriginal status before making decisions that will limit the judge's sentencing options.[4]

  1. R v Malmo-Levine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, - argued to strike down marijuana laws
  2. R v DeSousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944
  3. Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76
  4. R v Anderson, 2014 SCC 41 (CanLII) at paras 29 to 33

See Also