Principles of Fundamental Justice

This page was last substantively updated or reviewed January 2021. (Rev. # 96593)

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General Principles

Section 7 of the Charter prohibits the state from interfering a person's rights to "life, liberty and security of the person." 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.

– CCRF

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."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, 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.

Requirements of a Principle of Fundamental Justice

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."

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

Procedural Requirements

The PFJ do not require that an accused be entitled to the most favourable procedures possible.

Whether a particular procedure will conform to the PFJ is may require the judge "to balance the competing interests of the state and individual." What is required will depend on the context.

Established Principles of Fundamental Justice

Established Principles of Fundamental Justice include:

• Vagueness
• Arbitrariness
• Overbreadth
• Gross Disproportionality
• Right to Silence
• Minimum Level of Mens Rea
• Right to Full Answer and Defence

Standing

The meaning of "everyone" includes ever person physically present in Canada. All individuals, including those non-citizens within Canada, are able to claim rights under s. 7 Charter.

Actions Outside of Canada

Section 7 may be relied upon by a party for conduct occurring outside of Canada where it is established that the Canadian government participated "in activities of a foreign state or its agents that are contrary to Canada’s international obligations or fundamental human rights norms."

In extradition or deportations, the Canadian government are participants in any deprivation of rights under s. 7 of the Charter where it is a "foreseeable consequences" of their involvement and there is a "sufficient causal connection" between the government action and the deprivation of rights.

Corporate Persons

A corporation does not have the same rights under s. 7 of the Charter as those of an individual. A corporation however may rely upon the Charter in its defence under criminal or civil proceedings advanced by the government.

Infringement of Life, Liberty and Security of the Person

To find a breach under s. 7, a claimant must establish:

1. whether the accused was deprived of one of the three interests;
2. whether the deprivation accords with any identified principle(s) of fundamental justice.

Liberty

The principle of "liberty" protects a person's right to make fundamental personal choices free from state interference.

It applies particularly "where state compulsions or prohibitions affect important or fundamental life choices."

It is "rooted in fundamental notions of human dignity, personal autonomy, privacy and choice in decisions regarding an individual’s fundamental being."

Arbitrariness

It is a principle of fundamental justice that laws should not be arbitrary. 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]."

Vagueness

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.

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

To conform with s. 7, a law must "afford citizens of fair notice of the consequences of their conduct" and must "limit the discretion of those charged with its enforcement."

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.

Factors to be considered include:

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:

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

Overbreadth

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

A law is "overbreadth" when there is no connection between the persons' s. 7 interests and the purpose of the law. That is, the law's effect upon the personal rights of the claimant is unnecessary to the objective.

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

The party challenging the law only needs to show that the law is overbreadth for a single person. A law that is overbreadth is one where the scope "includes some conduct that bears no relation to its purpose" and it has "no rational connection between the purpose of the law and some, but not all, of its impact."

Means

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

"Preliminary" Conduct

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

Deference

Policy-maker may make choices within a range of options. Courts are not to micromanage the policy choices of the legislature.

Once harm is made out, the weighing and calculation of the nature and extent of harm is parliament's job.

The courts will vary deference to the objective depending on the "social context in which the limitation on rights is imposed" and where there is "difficulty of devising legislative solutions to social problems which may be only incompletely understood."

Object of the Law

The first step in the analysis is to identify "the object" of the impugned law.

Object at face-value

The object of the law and whether it achieves the objective should be taken at "face value" at this stage.

Context-dependent

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

Scope of Object

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

Relationship with s. 1 of the Charter

The analysis in s. 7 concerns whether the negative effect of the law on the enumerated protections accord with the PFJ. While analysis under s. 1 concerns the negative effect of the law are proportionate to the goals of the law in furtherance of the public interest.

Arguments concerning the justification for the scope of a law should generally be considered in the s. 1 analysis and not the s. 7 overbreadth analysis. This would include consideration of the practicalities of enforcement.

Gross Disproportionality

The rule against gross disproportionality concerns laws that impose deprivation that is out of sync with the objective measure. The impact upon life, liberty and security of person is so high that it overides the achievement of the objective.

The inquiry assumes that the law achieves its objectives.

The analysis does not consider the beneficial effects of the law. It only balances the negative effect against the objective.

It compares "the rights infringement ... with the objective of the law, not with the law's effectiveness."

The number of people affected by the law is not a concern so long as it impacts at least one person.

Proportion

The proportionality considers whether the effects of the law are "totally out of sync" with the objectives of the law such that it is "entirely outside the norms accepted in our free and democratic society."

Requirement of Mens Rea

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

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), failing to provide the necessities of life (215), dangerous operation of a motor vehicle (249), manslaughter (234 to 236), and offences composed of "causing bodily harm" (267, 272, 255).

An objective fault has otherwise been endorsed as constitutional with the exception of a small group of the most serious offences.

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.

Punishments That Shock the Conscience

Government decisions to extradite people are bound by section 7 of the Charter. 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.

Right to a Fair Trial

Racial Profiling

• Racial Profiling

Abuse of Process

• Abuse of Process

Right to Counsel

• Ineffective Counsel

Effective counsel is a principle of fundamental justice.

As is the prohibition against imposing duties on counsel that undermine their commitment to their clients' causes.

Right to Silence

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

Diminished Moral Culpability for Youths

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

Privacy of Youth

There is some suggestion that youth privacy protected under the YCJA is a PFJ.

Presumption of Innocence

Conviction of the Innocent

It is also a principle of fundamental justice that "the innocent must not be convicted."

Accused's Autonomy in Trial

The right of an accused to certain aspects of decision-making in conducting a defence is a PFJ.

Solicitor-Client Privilege

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

Border Security

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

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.

Harm Requirement for Criminal Law

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

Symmetry of Actus Reus and Mens Rea

There is no need for there to be symmetry between the actus reus and mens rea in all offences.

The Best Interests of the Child

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

Human Dignity

Human dignity is not a protected interest as a principle of fundamental justice. It is however protected under the "life, liberty and security of person" clause of s. 7 of the Charter.

Aboriginal Status

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.

Requirement to Proclaim Statutory Provisions

The legislatures' failure to proclaim law an alternative measures program does not violate s. 7 or 15 of the Charter.

See Also

• Justifiable Limitations on Rights