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:

  • 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
    Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 SCR 350 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
  4. ↑ Ruby v Canada (Solicitor General), [2002] 4 SCR 3, 2002 SCC 75 (CanLII) at para 39
    Charkaoui, supra at para 19
  5. ↑ R v Lyons, [1987] 2 SCR 309, 1987 CanLII 25 (SCC)
    R v Mills, [1999] 3 SCR 668, 1999 CanLII 637 (SCC) 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] 1 SCR 177, 1985 CanLII 65 (SCC) ("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, supra at para 17 and 18
  3. ↑ Canada (Prime Minister) v. Khadr, [2010] 1 SCR 44, 2010 SCC 3 (CanLII), at para 14
    R v Hape, 2007 SCC 26 (CanLII), [2007] 2 S.C.R. 292, per LeBel J, at para 52
  4. ↑ United States v. Burns, [2001] 1 SCR 283, 2001 SCC 7 (CanLII), at paras 59 to 60
    Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 SCR 3, 2002 SCC 1 (CanLII), 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] 2 SCR 248, 2004 SCC 42 (CanLII) 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] 2 S.C.R. 3, 1995 CanLII 142 (SCC)
    Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, 1989 CanLII 87 (SCC)
  6. ↑ R v Big M Drug Mart Ltd., [1985] 1 SCR 295, 1985 CanLII 69 (SCC)
    R v Wholesale Travel Group Inc., [1991] 3 SCR 154, 1991 CanLII 39 (SCC)

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

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. ↑ R v Malmo-Levine; R v Caine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571
  2. ↑ Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519

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]

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, supra
  5. ↑ 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.

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 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".[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]

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
    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 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
  2. ↑ Canada v Schmidt, ibid.

Right to a Fair Trial

Racial Profiling
An state agent engaging in racial profiling will breach the principle of fundamental justice.[1]

  1. ↑ R v Smith, 2004 CanLII 46666 (ON SC), at paras 35 to 36
    R v Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, 45 CCC (3d) 296 at para 180

Right to Make Full Answer and Defence

See also: Right to Make Full Answer and Defence

Abuse of Process

Right to Effective Counsel

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

  1. ↑ R v GDB, [2000] 1 SCR 520, 2000 SCC 22 (CanLII), 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.")

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] 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: 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.

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]

  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. ↑ Rodriguez v British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, per Sopinka J. at para 145
  5. ↑ R v Morgentaler (1998), 1988 CanLII 90 (SCC), 37 CCC (3d) 449 (S.C.C.), per Wilson J. at pp. 549-550
    Rodriguez v British Columbia (Attorney General), supra at para. 136-137
  6. ↑ R v Anderson, 2014 SCC 41 (CanLII) at paras 29 to 33

See Also

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