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).
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:
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:
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.
We're excited to announce the release of two new podcast episodes, kicking of season two of our Free Expression series! In the first two episodes, series host Dr Dax D'Orazio talks to Emily Laidlaw and Emmett Macfarlane. Episode descriptions and the episodes themselves are available below.
Episode 1: What Do Social Media Companies Owe Democracy? Interview w/ Emily Laidlaw
In this episode, Dax speaks with Emily Laidlaw, Associate Professor of Law at the University of Calgary and Canada Research Chair in Cybersecurity Law. They discuss how social media has changed our public discourse, the legal obligations of social media platforms and how they’re regulated, the development of the Online Harms Bill and whether it addresses our policy problems in this area, and the complex balancing of free expression and harm reduction in an online environment, including controversial hate speech prohibitions in Canada.
Episode 2: How Should Universities Respond to Free Expression Controversies? Interview w/ Emmett Macfarlane
In this episode, Dax speaks with Emmett Macfarlane, Professor in the Department of Political Science at the University of Waterloo. They discuss the politics of free expression in Canada and how it relates to the culture wars, the challenges of universities responding to free expression controversies on their campuses, and the task force at the University of Waterloo and its report, including how universities should approach protest encampments, divestment, extramural expression, institutional neutrality, and the relevance of the Charter.
This page features clips from a virtual panel discussion on trans rights in Alberta. The video above features clips of Professor Florence Ashley (University of Alberta); clips of the two other panelists (Professor Rachel Loewen Walker and Cheryl Milne, Executive Director of the Asper Centre) are linked below.
Rachel Loewen Walker: Clips from "Trans Rights in Alberta" Panel - YouTube
Cheryl Milne: Clips from "Trans Rights in Alberta" Panel (youtube.com)
Florence Ashley: Clips from "Trans Rights in Alberta" Panel (youtube.com)
Any person charged with an offence has the right … to be informed without unreasonable delay of the specific offence.
This right consists of two elements. The first and primary element is the notification of the exact accusation. If the accused is not informed about the exact nature of the accusation, their ability to fully respond and defend themselves may be impeded. The accused has the right to understand the charges against them so that they can strategize their defense, gather evidence, and prepare to confront the prosecutor’s case.[1] This right is a safeguard for the legal principle that “an accused can only be charged with an offence recognized by law.”[2]
The second element is the right to be notified of the charges without undue delay. This provision serves to safeguard the right to a full response and defense.[3] The Supreme Court of Canada in R v Delaronde (1997) determined that section 11(a) also serves as an economic safeguard. The court ruled that individuals suffering economic hardships from delayed charge notifications may have legal redress.[4]
The right to be informed under s.11(a) is only triggered once a person has been charged with an offence.[5]
The section 11(a) requirement to provide sufficient notice of the charges against the accused has been partly codified by section 581 of the Criminal Code. Section 581 sets the requirements for the form of statement of offence, which includes that the statement uses plain language, uses the words of the enactment that describes the offence, or uses words that provide sufficient notice of the charges to the recipient. Additionally, it requires that each count in an indictment contains an independent statement.
Determination of “unreasonable delay” is approached using the same factors that are relevant under section 11(b) (this protects the right to be tried within a reasonable time). These factors include the length of any delay, reasons for the delay, waiver of time periods (if the individual deliberately tries to avoid being informed of the charge), and prejudice to the accused.
Note that under section 1 of the Charter, Charter rights are guaranteed “subject only to such reasonable limits … as can be demonstrably justified in a free and democratic society.” For more information on section 1 of the Charter, please refer to our webpage on the Supreme Court’s Oakes Test.
[1] R v Cisar, [2014] ONCA 151 (CA).
[2] Ibid at para 11.
[3] Ibid at para 12.
[4] R v Delaronde, [1997] 1 SCR 213.
[5] R v Heit, [1984] 7 DLR (4th) 656.
In this latest Q&A session, CCS summer student Stephen Raitz interviews Professor Leonid Sirota (University of Reading, School of Law) about the recent Ontario Court of Appeal judgment in Working Families — a case about whether Ontario-based spending limits on third party political advertising unjustifiably violate the “informational component” of the right to vote.
A: Working Families concerns the constitutionality of Ontario legislation limiting spending by anyone except political parties and candidates on advertisements for or against parties or candidates or addressing issues “that can reasonably be regarded as closely associated with” a party or candidate to (now) roughly $700,000 in the year before an election campaign is due to begin. The main argument, which the Court accepted by 2-1, was that this legislation was contrary to section 3 of the Charter, which protects the right to vote, as (mis)interpreted by the Supreme Court in Harper v Canada (Attorney General). One might think that this would naturally have been a section 2(b) freedom of expression claim, but that was foreclosed because the legislation invokes section 33 of the Charter, aka the “notwithstanding clause,” which ousts the application of section 2(b) ― but not section 3. There was also an argument to the effect that section 33 was not properly invoked, but the court rejects it out of hand, and unanimously.
A: First, it’s important to note that the ONCA isn’t really interpreting section 3 of the Charter, but rather the Harper majority’s gloss on that provision. One might think that section 3 deals with voting (which isn’t an expressive activity in any meaningful way, whatever the Supreme Court of Canada may have thought of that in Baier) and section 2(b) with electoral campaigning (which obviously is). These are two different provisions addressing different things. But in Harper, the Court confused matters by saying that section 3 also deals with campaigning, albeit through the lens of voters receiving information that will help them decide whom to vote for, rather than by considering the rights of those (parties, candidates, and civil society groups) who would like to persuade the voters. Specifically, Harper reinterprets the section 3 right to vote as a “right to meaningfully participate in the electoral process” (this is consistent with misbegotten SCC precedent) and stipulates that “[t]he right to meaningful participation includes a citizen’s right to exercise his or her vote in an informed manner” (this is new). To add to the confusion, the discussion in Harper is very cursory, indeed impressionistic. As a result, both ONCA opinions in Working Families — the majority and the dissent — struggle to make sense of it and to place it within the broader framework of Charter case law.
To decide whether “a citizen’s right to exercise his or her vote in an informed manner” is impaired by the legislation at issue, the ONCA majority seizes on what it sees as two “proxies” identified by Bastarache J in Harper (though he doesn’t describe them in this way): first, whether “[s]pending limits [are] carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to voters,” and second, whether such limits “allow third parties to engage in ‘modest, national, informational campaigns.’” Much of the majority opinion in Working Families is devoted to arguing that the impugned law fails these two tests. It points, in particular, to the fact that there was never a justification given for expanding the limits on political advertising from six months before an election campaign to a whole year (without the expenses ceiling being raised at all), which speaks to a lack of “careful tailoring,” and to the trial judge’s lack of an explicit finding that a “modest informational campaign” was possible within the confines of the law (though the trial judge made no finding to the contrary either). The dissent both disagrees with the majority’s analysis on these specific points and also, perhaps more importantly, rejects reliance on the alleged “proxies” for a section 3 violation identified by the majority. The dissent would instead engage in a more global assessment of whether informed participation is impaired. The dissent also accuses the majority of conflating its section 3 analysis (especially careful tailoring) with what should be happening under section 1, while the majority tries very hard to draw distinctions between these two stages.
To my mind, the dissent’s approach is more in line with what Bastarache J did in Harper, but the majority’s way of dealing with the case is understandable insofar as it tries to inject, if not objectivity, then at least tractability into the analysis. The dissent’s conflation criticism is warranted, but the bigger conflation is in Harper, between section 2(b) and section 3. Everything else flows from there. If the “careful tailoring” language means something, then should we blame the majority for using it? In their different ways, the two opinions are trying to make the best of the very difficult situation the Harper majority opinion put them in.
A: Part of the premise of the question is misconceived: we know enough about the social media companies’ moderation practices now to tell that they often actively, if seldom successfully, suppress what they regard ― rightly or wrongly ― as misinformation. But be that as it may, I don’t think the (real) changes in media landscape are relevant to the interpretation of section 3, which ― on the Harper approach ― includes a very general, and really quite limited, “right to exercise [one’s] vote in an informed manner” (or more accurately, given that the Charter is only concerned with state action, a right not to be prevented by the government from exercising one’s vote in an informed manner). Profound though they may be, changes in the media landscape occur in spite of the government’s attempt to stand athwart history and yell stop, so it is difficult to see how they affect this right. If indeed the right not to be prevented by the government from being an informed voter was protected in 2004, then there is no reason why section 3 would not protect the same right in 2023. That said, it would be interesting to see how the courts would deal with an argument to the effect that C-18, which predictably resulted in news becoming less available on key online platforms, impairs this right in much the same way as certain provisions of the Criminal Court impaired sex workers’ right to the security of the person in Bedford.
A: Nothing much, I would guess. Unions NSW logically enough addressed the implied freedom of political communication under the Australian Constitution. Since in this case Canadian courts cannot consider the freedom of expression issues due to the operation section 33, the SCC will be confined to revisiting the section 3 framework it made up in Harper ― whether to discard it altogether (as I hope, but doubt, it will), or to expound it beyond the cursory explanation given by Bastarache J. In doing so, the SCC, like the ONCA, will probably be at pains to show that it is not simply replicating a section 2(b) analysis. Hence it will probably not find any freedom of expression cases, whether its own, those decided by other Canadian courts, or those from other jurisdictions, helpful. There are comments about the value of civil society campaigns to informing voters in the plurality opinion in Unions NSW, but the SCC already pays lip service to this idea. I do not think it can really go any further under the section 3 framework ― otherwise this will become a duplication of section 2(b), which should be avoided both on principle and, more to the point, in light of the judgment in Toronto (City) v Ontario (Attorney General). If the SCC has occasion to revisit these issues in a more natural way, under a section 2(b) claim, then it should follow the Australians’ rejection of deference to the evidence-free claims made by the government on behalf of legislation that muzzles civil society for the benefit of political parties. But don’t hold your breath for it to happen.
In this Q&A session, CCS summer student Juliana Quan interviews lawyer Bridget Gilbride (Fasken Martineau DuMolin), who is representing claimant Cindy Dickson in a landmark Charter case currently before the Supreme Court of Canada. For more info on the Dickson case, see here: https://journals.library.ualberta.ca/constitutional_forum/index.php/constitutional_forum/issue/view/1959
A: The case arises because the appellant, Cindy Dickson, a citizen of the Vuntut Gwitchin First Nation, is barred from serving on the VGFN’s government because she lives in Whitehorse, not Old Crow, the only community within the VGFN’s Settlement Land. The majority of VGFN citizens live outside of their Settlement Land (including a large contingent in Whitehorse), and the VGFN exercises considerable legislative authority over all their citizens in Yukon. Ms. Dickson brought a Charter challenge to VGFN’s residency requirement on the ground that it discriminates against her based on where she lives, relying on a previous decision of the Supreme Court of Canada, Corbière v Canada. There are three issues before the Supreme Court: 1) whether the Charter applies to the Vuntut Gwitchin government, an Indigenous self-government in Canada; 2) if the Charter applies, whether section 25 operates to shield the residency requirement from Charter review; and 3) if the Charter applies, whether the residency requirement is discriminatory, as found by the courts below.
A: We argued that section 25 is an interpretative provision that should not be applied as an automatic shield and should not bypass the balancing exercise required by section 1 of the Charter. In circumstances in which an Indigenous right will be negated through the application of the Charter, section 25 may well operate as a shield, but the analysis should be case-by-case, so that harm arising from the Charter infringement can be considered and balanced as part of the analysis. Specifically, we argued that section 25 should not operate to automatically shield laws of Indigenous governments, having the effect of providing lesser protections to Indigenous individuals than others in Canada.
A: The Charter, which in large part constitutionalizes human rights recognized in important international covenants, provides basic and fundamental protections to all Canadian citizens, who are inherently vulnerable in the face of government conduct. The Charter empowers and protects individuals, which in turn strengthens democracies, including Indigenous governments.
A: It is a privilege representing Cindy. Mostly, I regret that I have not succeeded to date in the courts below. Cindy is very courageous to bring this important issue forward, and it has not been easy on her. She tried other avenues to resolve this issue but was not left with any options other than this court challenge. I am humbled by her commitment to equality for her fellow citizens, and honoured to be part of it.