TEST 1: PRINCIPLES OF FUNDAMENTAL JUSTICE
SCC identified 3 principles of fundamental justice:
1.Criminal law must not be overbroad – are means chosen necessary to achieve the State objective?
Only unconstitutional if means chosen are “grossly disproportionate” to the objective
2.Notice must be given of criminal offences
3.Criminal law must not be vague – incapable of meaningful interpretation by the court
(i.e. if any judge in the country cant interpret the law, it is vague)
b.Consensus that principle is fundamental to fair operation of our legal system
c. Identified with precision
Laws are only unconstitutional if:
a.They infringe a right or freedom guaranteed in the Charter; AND
b.The infringement cannot be justified in a free and democratic society
The Oakes Test
1. Pressing and substantial objective (is the intention or reason behind criminalizing substantial)
2. Rational connection (between objective and the way Parliament has gone about solving the problem)
3. Minimum impairment (does it restrict liberty as little as reasonably possible)
4. Proportionality between effects and objective (is harm caused by legislation balanced with the harm
Principles of fundamental justice involve procedural AND substantive principles
Principles of fundamental justice include:
- innocent people should not be punished
- “there is a generally held revulsion against punishment of the morally innocent”
- law enacting an absolute liability offence will violate s. 7 of the Charter if and to the extent that is
has the potential of depriving life, liberty or security of the person
- absolute liability offence that has imprisonment or probation as potential punishment violates s.
TEST 2: VIOLATIONS OF THE CHARTER
STEP 1: does the law infringe the Charter right?
STEP 2: can the law be justified (“saved”) in a free and democratic society under s. 1 (R. v.
- pressing and substantial objective; AND
- rational connection; AND
- minimal impairment; AND
- overall proportionality
Section 7 (exception to general rule)
STEP 1: does the law infringe the right to life, the right to liberty or the right to security of the person?
STEP 2: if yes, does it do so in a way that is inconsistent with the principles of fundamental justice
(overbreadth, vagueness, minimum requirement for mens rea etc.)
“NO” – law does not violate s. 7
“YES” – law does violate s. 7
Laws that violate s. 7 cannot be “saved” under s. 1;
THEREFORE, no s. 1/Oakes analysis