Canada (Attorney General) v. Bedford, 2012 ONCA ... - York University

Page: 39crime-creating legislation will depend on whether the applicant can show that thelegislation does not accord with the “principles of fundamental justice”. Thatphrase is not self-defining. Its meaning has grown through judicial interpretation:Canadian Foundation, at paras. 15, 83, 177; Re B.C. Motor Vehicle Act, atpp. 511-513; Cunningham, at pp. 151-152; Rodriguez, at p. 607, per Sopinka J.,for the majority; and Constitutional Law in Canada, at para. 47.33.[91] Perhaps no area of the law has felt the impact of the expansiveinterpretation of the “principles of fundamental justice” as much as thesubstantive criminal law. The Supreme Court has established a catalogue ofprinciples of fundamental justice that together fix the minimum substantivestandards that crime-creating provisions must meet to survive a s. 7 challenge.Those minimum standards include the concepts of arbitrariness, overbreadth andgross disproportionality. The constitutional measurements required by at leastone of those concepts – gross disproportionality – inevitably draw the court intoan assessment of the merits of policy choices made by Parliament as reflected inlegislation.Does the legislation interfere with the respondents’ liberty interest?[92] All parties to this appeal agree that the risk of imprisonment flowing fromconviction for any of the challenged offences is sufficient to engage the