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

Page: 66[150] The fluidity of these concepts, particularly as they were described by theSupreme Court in Clay, has led some to question whether there is now only oneprinciple of fundamental justice – gross disproportionality – or whetherarbitrariness and overbreadth remain independent principles. Speaking for thecourt in Clay, at paras. 37-38, Gonthier and Binnie JJ. said:The analysis of overbreadth in relation to s. 7 wasconsidered in R. v. Heywood, [1994] 3 S.C.R. 761, atp. 793, where Cory J. observed that:The effect of overbreadth is that in someapplications the law is arbitrary ordisproportionate.Overbreadth in that respect addresses the potentialinfringement of fundamental justice where the adverseeffect of a legislative measure on the individuals subjectto its strictures is grossly disproportionate to the stateinterest the legislation seeks to protect. Overbreadth inthis aspect is, as Cory J. pointed out, related toarbitrariness. [Emphasis in original.][151] The commingling of these principles of fundamental justice is evident infour recent decisions of this court where gross disproportionality was used as themeasure of overbreadth on a s. 7 challenge: R. v. Dyck, 2008 ONCA 309, 90O.R. (3d) 409; Cochrane v. Ontario (Attorney General), 2008 ONCA 781, 92 O.R.(3d) 321, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 105; R. v.Lindsay, 2009 ONCA 532, 97 O.R. (3d) 567, leave to appeal to S.C.C. refused,[2009] S.C.C.A. No. 540; and United States of America v. Nadarajah, 2010ONCA 858, 266 C.C.C. (3d) 447, leave to appeal to S.C.C. granted, [2011]S.C.C.A. No. 64.