Charter of Rights and Freedoms
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 Principles of Fundamental Justice
Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486
the principles of fundamental justice are to be found in the basic tenets of our legal system. They
do not lie in the realm of general public policy but in the inherent domain of the judiciary as
guardian of the justice system.
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1
S.C.R. 76, 2004 SCC 4
First, it must be a legal principle…[to provide] meaningful content for the s. 7 guarantee [and to
avoid the ‘adjudication of policy matters’. Second, there must be sufficient consensus that the
alleged principle is “vital or fundamental to our societal notion of justice”….Third, the alleged
principle must be capable of being identified with precision and applied to situations in a manner
that yields predictable results.
Overbreadth: R. v. Heywood, [1994] 3 S.C.R. 761
If the state, in pursuing a legitimate objective, uses means which are broader than is necessary to
accomplish that objective, the principles of fundamental justice will be violated because the
individual's rights will have been limited for no reason. The effect of overbreadth is that in some
applications the law is arbitrary or disproportionate.
Arbitrariness: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44.
The jurisprudence on arbitrariness is not entirely settled. In Chaoulli, three justices…preferred an
approach that asked whether a limit was “necessary” to further the state objective (paras. 13132). Conversely, three other justices…preferred to avoid the language of necessity and instead
approved of the prior articulation of arbitrariness as where “[a] deprivation of a right . . . bears no
relation to, or is inconsistent with, the state interest that lies behind the legislation”
Gross disproportionality: Canada (Attorney General) v. PHS Community Services Society
Gross disproportionality describes state actions or legislative responses to a problem that are so
extreme as to be disproportionate to any legitimate government interest.
Medicare: Chaoulli v. Quebec (Attorney General), 2005 SCC 35
Safe injection site: Canada (Attorney General) v. PHS Community Services Society
Prostitution: Canada (Attorney General) v. Bedford, 2012 ONCA 186