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

Page: 64Issues 6, 7 and 8: Does the deprivation of the respondents’ liberty andsecurity of the person accord with the principles of fundamental justice? Ifnot, are the provisions saved by s. 1 of the Charter? If any of the threechallenged provisions is unconstitutional, what is the appropriate remedy?Overview of the principles of fundamental justice[143] As we have already explained, three principles of fundamental justice areimplicated in this case: arbitrariness, overbreadth and gross disproportionality.The application judge treated each of these principles as distinct concepts, as dowe in the discussion that follows.However, we acknowledge that there issignificant overlap among them. This has led to some confusion as to what levelof deference the court should accord to legislative choice and whatconsiderations govern at each step of the analysis.[144] For each principle of fundamental justice, the court must examine therelationship between the challenged provision and the legislative objective thatthe provision reflects. It does so using a different filter for each concept.[145] When the court considers arbitrariness, it asks whether the challenged lawbears no relation to, or is inconsistent with, its legislative objective. Put anotherway, arbitrariness is established where a law deprives a person of his or her s. 7rights for no valid purpose: Rodriguez, at pp. 594-595.[146] As the Supreme Court noted in PHS, at para. 132, the jurisprudence onarbitrariness is not entirely settled. The ambiguity arises from Chaoulli, in whichthe Court split 3-3 on the question of whether a more deferential standard of