Principles of Fundamental Justice

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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".[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.

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."[3]

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

Procedural Requirements

The PFJ do not require that an accused be entitled to the most favourable procedures possible.[5]

Whether a particular procedure will conform to the PFJ is may require the judge "to balance the competing interests of the state and individual".[6] What is required will depend on the context.[7]

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
  1. ↑ R v Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30, per Dickson CJ (concurring) (5:2), at p. 56
  2. ↑ first suggested in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 SCR 486, per Lamer J (7:0)
    Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII), [2007] 1 SCR 350, per McLachlin CJ (9:0), at para 19 ("Section 7 of the Charter requires that laws that interfere with life, liberty and security of the person conform to the principles of fundamental justice — the basic principles that underlie our notions of justice and fair process. These principles include a guarantee of procedural fairness, having regard to the circumstances and consequences of the intrusion on life, liberty or security...")
  3. ↑ R v Malmo-Levine; R v Caine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, per Gonthier and Binnie JJ (6:3)
  4. ↑ Ruby v Canada (Solicitor General), 2002 SCC 75 (CanLII), [2002] 4 SCR 3, per Arbour J (9:0), at para 39
    Charkaoui, supra, at para 19
  5. ↑ R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309, per La Forest J (5:2)
    R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, per McLachlin and Iacobucci JJ (7:1) PFJs "do not guarantee the most favourable procedures conceivable."
  6. ↑ Ruby, ibid., at para 39
    Charkaoui, supra, at para 20 ("Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake:")
  7. ↑ Charkaoui, supra, at para 20

Standing

The meaning of "everyone" includes ever person physically present in Canada.[1] All individuals, including those non-citizens within Canada, are able to claim rights under s. 7 Charter.[2]

Actions Outside of Canada
See also: Extra-Territorial Jurisdiction of the Courts

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".[3]

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.[4]

Corporate Persons

A corporation does not have the same rights under s. 7 of the Charter as those of an individual.[5] A corporation however may rely upon the Charter in its defence under criminal or civil proceedings advanced by the government.[6]

  1. ↑ Singh v Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 SCR 177, per Wilson J (6:0) ("I am prepared to accept that the term includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.")
  2. ↑ Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII), [2007] 1 SCR 350, per McLachlin CJ (9:0), at paras 17 and 18
  3. ↑ Canada (Prime Minister) v Khadr, 2010 SCC 3 (CanLII), [2010] 1 SCR 44, per curiam (9:0), at para 14
    R v Hape, 2007 SCC 26 (CanLII), [2007] 2 SCR 292, per LeBel J (9:0), at para 52
  4. ↑ United States v Burns, 2001 SCC 7 (CanLII), [2001] 1 SCR 283, per curiam (9:0), at paras 59 to 60
    Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), [2002] 1 SCR 3, per curiam (9:0), at para 54 ("where Canada’s participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada’s participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand")
    Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 (CanLII), [2004] 2 SCR 248, per Iacobucci and Arbour JJ (6:3), at para 75 (The "guarantees of fundamental justice apply even where deprivations of life, liberty or security may be effected by actors other than the Canadian government, if a sufficient causal connection exists between the participation of the Canadian government and the ultimate deprivation effected")
  5. ↑ British Columbia Securities Commission v Branch, 1995 CanLII 142 (SCC), [1995] 2 SCR 3, per Sopinka and Iacobucci JJ (9:0)
    Irwin Toy Ltd. v Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 SCR 927, per Dickson CJ, Lamer and Wilson JJ (3:2)
  6. ↑ R v Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295, per Dickson J (6:0)
    R v Wholesale Travel Group Inc, 1991 CanLII 39 (SCC), [1991] 3 SCR 154, per Cory J

Infringement of Life, Liberty and Security of the Person

To find a breach under s. 7, a claimant must establish:[1]

  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.
  1. ↑ R v Malmo-Levine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, per Gonthier and Binnie JJ, at para 83
    R v White, 1999 CanLII 689 (SCC), [1999] 2 SCR 417, per Iacobucci J (6:1), at para 38
    R v S(RJ), 1995 CanLII 121 (SCC), [1995] 1 SCR 451, per Iacobucci J (9:0), at p. 479

Liberty

The principle of "liberty" protects a person's right to make fundamental personal choices free from state interference.[1]

It applies particularly "where state compulsions or prohibitions affect important or fundamental life choices."[2]

It is "rooted in fundamental notions of human dignity, personal autonomy, privacy and choice in decisions regarding an individual’s fundamental being".[3]

  1. ↑ Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 SCR 307, per Bastarache J, at para 54 (Liberty is "the right to make fundamental personal choices free from state interference")
    Carter v Canada (AG), 2015 SCC 5 (CanLII), [2015] 1 SCR 331, per curiam, at para 64} ("Underlying both of these rights is a concern for the protection of individual autonomy and dignity. Liberty protects “the right to make fundamental personal choices free from state interference”: ...")
  2. ↑ Blencoe, supra, at para 49
  3. ↑ Blencoe, supra, at para 50

Arbitrariness

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. ↑ Malmo-Levine; R v Caine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, per Gonthier and Binnie JJ (6:3)
  2. ↑ Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519, per Sopinka J (5:4)

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.[1]

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

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".[3]

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.[4]

Factors to be considered include:[5]

  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:[6]

  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, per Gonthier J (9:0)
    Nova Scotia Pharmaceutical Society, supra
  2. ↑ United States of America v Nadarajah, 2010 ONCA 859 (CanLII), 266 CCC (3d) 447, per curiam (3:0)
  3. ↑ R v Levkovic, 2013 SCC 25 (CanLII), [2013] 2 SCR 204, per Fish J (7:0)
  4. ↑ R v Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 SCR 606, per Gonthier J (7:0)
    Levkovic, supra, at para 2
  5. ↑ Nova Scotia Pharmaceutical Society, supra
  6. ↑ Levkovic, supra, at para 48

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.[1] 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".[2]

The party challenging the law only needs to show that the law is overbreadth for a single person.[3] 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".[4]

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. [5]

"Preliminary" Conduct

When Parliament chooses to criminalize "preliminary" conduct overbreadth and vagueness become concerns.[6]

Deference

Policy-maker may make choices within a range of options.[7] Courts are not to micromanage the policy choices of the legislature.[8]

Once harm is made out, the weighing and calculation of the nature and extent of harm is parliament's job.[9]

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".[10]

  1. ↑ R v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, per McLachlin CJ, at para 101 ("Another way in which laws may violate our basic values is through what the cases have called “overbreadth”: the law goes too far and interferes with some conduct that bears no connection to its objective.")
  2. ↑ R v Moriarity, 2015 SCC 55 (CanLII), [2015] 3 SCR 485, per Cromwell J (9:0), at para 24
  3. ↑ Bedford, supra, at paras 111, 113, 121
  4. ↑ Bedford, supra, at para 112
  5. ↑ R v Heywood, 1994 CanLII 34 (SCC), [1994] 3 SCR 761, per Cory J (5:4)
  6. ↑ United States of America v Nadarajah, 2010 ONCA 859 (CanLII), 266 CCC (3d) 447, per curiam (3:0)
  7. ↑ R v Ndhlovu, 2020 ABCA 307 (CanLII), per Schutz JA (2:1), at para 88 (under appeal)
  8. ↑ Ndhlovu, ibid., at para 88 (under appeal)
  9. ↑ Malmo-Levine; R v Caine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, at para 133
  10. ↑ RJR-MacDonald Inc v Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 SCR 199, at paras 135, 127

Object of the Law

The first step in the analysis is to identify "the object" of the impugned law.[1]

Object at face-value

The object of the law and whether it achieves the objective should be taken at "face value" at this stage.[2]

Context-dependent

The purpose must be considered in the "context of the legislative scheme" in which it is found.[3]

Scope of Object

The identified purpose must be not too general or too specific.[4] The appropriate generality must be one of an "animating social value".[5]

  1. ↑ Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331, per curiam, at para 73
  2. ↑ Bedford, supra, at para 125
  3. ↑ Moriarity, ibid., at para 24
  4. ↑ 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.")
  5. ↑ Moriarity, ibid., at para 28
    Carter v Canada (AG), 2015 SCC 5 (CanLII), [2015] 1 SCR 331, per curiam (9:0), at para 76

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.[1]

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.[2] This would include consideration of the practicalities of enforcement.[3]

  1. ↑ R v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, per McLachlin CJ, at para 125 ("The question under s. 7 is whether the law’s negative effect on life, liberty, or security of the person is in accordance with the principles of fundamental justice. With respect to the principles of arbitrariness, overbreadth, and gross disproportionality, the specific questions are whether the law’s purpose, taken at face value, is connected to its effects and whether the negative effect is grossly disproportionate to the law’s purpose. Under s. 1, the question is different — whether the negative impact of a law on the rights of individuals is proportionate to the pressing and substantial goal of the law in furthering the public interest. The question of justification on the basis of an overarching public goal is at the heart of s. 1, but it plays no part in the s. 7 analysis, which is concerned with the narrower question of whether the impugned law infringes individual rights.")
  2. ↑ Bedford, supra, at para 144
  3. ↑ Bedford, supra, at para 113

Gross Disproportionality

The rule against gross disproportionality concerns laws that impose deprivation that is out of sync with the objective measure.[1] 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.[2]

The analysis does not consider the beneficial effects of the law. It only balances the negative effect against the objective.[3]

It compares "the rights infringement ... with the objective of the law, not with the law's effectiveness".[4]

The number of people affected by the law is not a concern so long as it impacts at least one person.[5]

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".[6]

  1. ↑ R v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, per McLachlin CJ, at p. g2f56 (Gross disproportionality "targets the second fundamental evil: the law’s effects on life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported. The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure. This idea is captured by the hypothetical of a law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk. The connection between the draconian impact of the law and its object must be entirely outside the norms accepted in our free and democratic society. ")
  2. ↑ Bedford, ibid., at para 121
  3. ↑ Bedford, ibid., at para 121 ("Gross disproportionality under s. 7 of the Charter does not consider the beneficial effects of the law for society. It balances the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law.")
  4. ↑ Bedford, ibid., at para 123
  5. ↑ Bedford, ibid., at para 122 ("Thus, gross disproportionality is not concerned with the number of people who experience grossly disproportionate effects; a grossly disproportionate effect on one person is sufficient to violate the norm. ")
  6. ↑ Bedford, ibid., at para 120

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]

An 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, per Lamer J (7:0)
    R v Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636, per Lamer J (6:1)
    R v Pontes, 1995 CanLII 61 (SCC), [1995] 3 SCR 44, per Cory J (5:4)
    R v Hess, 1990 CanLII 89 (SCC), [1990] 2 SCR 906, per Wilson J (5:2)
  2. ↑ R v Gosset, 1993 CanLII 62 (SCC), [1993] 3 SCR 76, per McLachlin J (8:0)
    R v Finlay, 1993 CanLII 63 (SCC), [1993] 3 SCR 103, per McLachlin J (5:0)
  3. ↑ R v Naglik, 1993 CanLII 64 (SCC), [1993] 3 SCR 122, per McLachlin J (7:2)
  4. ↑ R v Hundal, 1993 CanLII 120 (SCC), [1993] 1 SCR 867, per Cory J (8:0)
  5. ↑ R v Creighton, 1993 CanLII 61 (SCC), [1993] 3 SCR 3, per McLachlin J (9:0)
  6. ↑ R v DeSousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944, per Sopinka J (5:0)
  7. ↑ Creighton, supra ("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, per Lamer CJ (5:2)

Punishments That Shock the Conscience

See also: Cruel and Unusual Punishment

Government decisions to extradite people are bound by section 7 of the Charter.[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, per La Forest J (7:0)
  2. ↑ Canada v Schmidt, ibid.

Right to a Fair Trial

Racial Profiling

Racial profiling is when police actions in selecting and treating a suspect are motivated by "race or racial stereotypes about offending or dangerousness", whether conscious or not.[1]

A state agent engaging in racial profiling will breach the principle of fundamental justice.[2]

Racial profiling has two components:[3]

  1. an attitudinal component; and
  2. a causation component.

The attitudinal component relates to whether the public official "accepts" that "race or racial stereotypes are relevant in identifying the propensity to offend or to be dangerous".[4]

The causation component requires that the attitude consciously or unconsciously plays a "causal role"--that is motivates or influences to any degree--decisions to select or to treat a suspect.[5] The racial motivation does not need to be the sole or main factor. Any degree "contaminates" the decision and nullifies any reasonable suspicion or grounds.[6]

An act will still constitute racial profiling even if the suspected offence being investigated was reasonably founded on lawful grounds.[7]

Racial profiling is rarely proven by direct evidence. It will usually be inferred from circumstances surrounding the actions.[8]

  1. ↑ R v Le, 2019 SCC 34 (CanLII), [2019] 2 SCR 692, per Brown and Martin JJ, at para 76
  2. ↑ R v Smith, 2004 CanLII 46666 (ON SC), 26 CR (6th) 375, per Dawson J, at paras 35 to 36
    R v Simmons, 1988 CanLII 12 (SCC), [1988] 2 SCR 495, 45 CCC (3d) 296, per Dickson CJ (7:0), at para 180
  3. ↑ R v Dudhi, 2019 ONCA 665 (CanLII), per Pacciocco JA, at para 54
  4. ↑ Dudhi, ibid., at para 55
    Peart v Peel Regional Police Services Board, 2006 CanLII 37566 (ON CA), 43 CR (6th) 175, per Doherty JA, at para 90
  5. ↑ Dudhi, ibid., at para 55
  6. ↑ Dudhi, ibid., at paras 62 to 63
  7. ↑ Dudhi, ibid., at para 59
  8. ↑ Dudhi, ibid., at para 75
    Peart, supra at para 95

Right to Make Full Answer and Defence

See also: Right to Make Full Answer and Defence

Abuse of Process

Right to Counsel

Effective counsel is a principle of fundamental justice.[1]

As is the prohibition against imposing duties on counsel that undermine their commitment to their clients' causes.[2]

  1. ↑ R v GDB, 2000 SCC 22 (CanLII), [2000] 1 SCR 520, per Major J (5:0), at para 24 ("Today the right to effective assistance of counsel extends to all accused persons. In Canada that right is seen as a principle of fundamental justice. It is derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada and ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.")
  2. ↑ Canada (Attorney General) v Federation of Law Societies of Canada, 2015 SCC 7 (CanLII), [2015] 1 SCR 401, at para 84 ("We should, in my view, recognize as a principle of fundamental justice that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes.")

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. ↑ R v Hebert, 1990 CanLII 118 (SCC), [1990] 2 SCR 151, per McLachlin J (9:0)

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, per Abella J (5:4), at para 70

Presumption of Innocence

See also: 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 SCR 668, per McLachlin and Iacobucci JJ, at para 71
    R v Leipert, 1997 CanLII 367 (SCC), [1997] 1 SCR 281, per McLachlin J, at para 24

Accused's Autonomy in Trial

The right of an accused to certain aspects of decision-making in conducting a defence is a PFJ.[1]

  1. ↑ R v Swain, 1991 CanLII 104 (SCC), [1991] 1 SCR 933, per Lamer CJ

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), [2016] 1 SCR 381, per Wagner and Gascon JJ (6:0), at para 17
    R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445, per Major J, at pp. 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), 211 CCC (3d) 4, per Doherty JA (3:0), at 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.

Harm Requirement for Criminal Law

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

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.[2]

The Best Interests of the Child

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

Human Dignity

Human dignity is not a protected interest as a principle of fundamental justice.[4] It is however protected under the "life, liberty and security of person" clause of s. 7 of the Charter.[5]

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.[6]

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.[7]

  1. ↑ R v Malmo-Levine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, per Gonthier and Binnie JJ (6:3), - argued to strike down marijuana laws
  2. ↑ R v DeSousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944, per Sopinka J (5:0)
  3. ↑ Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 SCR 76, per McLachlin CJ (6:3)
  4. ↑ Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519, per Sopinka J (5:4), at para 145
  5. ↑ R v Morgentaler, 1988 CanLII 90 (SCC), 37 CCC (3d) 449, per Wilson J (concurring) (5:2), at pp. 549-550
    Rodriguez v British Columbia (Attorney General), supra, at paras 136 to 137
  6. ↑ R v Anderson, 2014 SCC 41 (CanLII), [2014] 2 SCR 167, per Moldaver J (7:0), at paras 29 to 33
  7. ↑ R v GS, 1990 CanLII 66 (SCC), [1990] 2 SCR 294, per Dickson CJ

See Also

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