Purpose

Principles of fundamental justice (PFJs) are used to determine whether section 7 of the Charter of Rights and Freedoms has been violated. Section 7 establishes that “[e]veryone 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.”^[1] This means that a party asserting a section 7 violation must demonstrate a breach of 1) life, liberty, or security of the person, and 2) at least one PFJ.^[2] Claimants may base their arguments on already established PFJs or previously unrecognized principles that meet certain standards (see below).

Criteria

PFJs are not defined in the Charter, so the criteria for what constitutes a PFJ had to be developed gradually through case law. Although originally thought to address procedural matters only, the Supreme Court of Canada’s BC Motor Vehicle Act judgment (1985) established that PFJs also include substantive ideals,^[3] like the requirement of proving fault before imposing incarceration.^[4]

In R v Malmo Levine, the Supreme Court provided additional clarification by establishing three requirements for legal recognition of a previously unrecognized PFJ:

1. They must be “legal principle[s].”^[5]
2. There must be “significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate.”^[6]
3. They “must be identified with sufficient precision to yield a manageable standard.”^[7]

Examples

Courts have used the R v Malmo Levine criteria to recognize a wide range of PFJs (and recognized many PFJs before the establishment of these criteria). The most common PFJs used by the courts today are arbitrariness, overbreadth, and gross disproportionality,^[8] which can be defined as follows:

• A law is arbitrary when its purpose fails to align with all of its effects.^[9]
• A law is overbroad when its purpose is disconnected from some of its effects.^[10]
• A law is grossly disproportionate where its effects are unjustifiably excessive.^[11]

Some other principles of fundamental justice that have been recognized by the courts — but are less commonly referenced — include the principle that criminal defences must be practically attainable,[12] the principle that nobody should be imprisoned without fault,[13] and the principle that criminal defendants have a right to prosecutorial disclosure.[14] This list is non-exhaustive, which means that courts may recognize additional principles of fundamental justice in the future.

[1] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2] Peter W Hogg, Constitutional Law of Canada, 5th edition, vol 2 (Toronto: Carswell, 2019) at 47.10(a).

[3] Re BC Motor Vehicle Act, 1985 CanLII 81 (SCC) at 513.

[4] Government of Canada, “Section 7 – Life, liberty and security of the person” (last modified 29 June 2023) at (i) “Substantive Fundamental Justice” (para 8), online: <justice.gc.ca> [perma.cc/52LS-9XG8].

[5] R v Malmo-Levine, 2003 SCC 74 at para 113.

[6] Ibid.

[7] Ibid.

[8] Peter W Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 SCLR 195 at 155.

[9] Government of Canada, supra note 4 at (i) “Substantive Fundamental Justice” (para 2).

[10] Ibid.

[11] ​​Ibid at (i) “Substantive Fundamental Justice” (para 4).

[12] R v Morgentaler, 1988 CanLII 90 (SCC) at 33.

[13] Re BC Motor Vehicle Act, 1985 CanLII 81 (SCC) at 515.

[14] R v Stinchcombe, 1991 CanLII 45 (SCC) at 336.