Your search
Results 4 resources
-
In Canada (A.G.) v. Bedford, the Supreme Court of Canada invalidated three prostitution-related provisions of the Criminal Code on grounds of overbreadth and gross disproportionality. The implications of Bedford go well beyond the particular context of sex work and even of criminal law. First, the Court held that the three constitutional norms against overbreadth, arbitrariness, and gross disproportionality are distinct from each other rather than aspects of a single norm against overbreadth. Second, the Court held that a Charter applicant could establish a violation of section 7 by showing that a law is overbroad, arbitrary, or grossly disproportionate in its impact on the life, liberty, or security of only one person and that the effectiveness of the law in achieving its policy objectives was not relevant to these norms. There are some difficulties in understanding this highly individualistic approach to section 7, and those difficulties lead to the third implication. By deferring any consideration of the effectiveness of the law to the question of whether it is a proportional limit on a section 7 right, the Court may be indicating a willingness to do something it has never done before: recognize an infringement of a section 7 right as a justified limit under section 1. The Court’s clarification of the relationship between the norms against overbreadth, arbitrariness, and gross disproportionality is welcome, but its individualistic articulation of those norms is difficult to understand and its suggestion that section 7 violations may now be easier to save under section 1 is troubling.
-
This paper explores the implications of the idea of a constitution appropriate to a liberal-democratic state for the law of self-defence. The law governing self-defence, like other laws, must also a test of substantive legality appropriate to the constitution: it must be one that could not reasonably be rejected by a person who is a member of a civil condition created with the purpose of curing the insecurities of the state of nature. While this test of substantive legality is insufficiently powerful to determine all the details of the law of self-defence, it does have several important implications. First, the positive law must recognize a right of self-defence in the core case where the defender responds with necessary and proportionate force to a wrongful threat; second, the positive law must also provide at least an excuse leading to acquittal where the defender is reasonably mistaken about one of the conditions in the core case. Furthermore, the positive law must acquit a person who uses necessary and proportionate force to repel an innocent threat because the civil condition can provide no reason for punishing such a person.
-
Section 7 of the Canadian Charter of Rights and Freedoms provides 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." This book analyzes all aspects of section 7. It outlines the place of section 7 in the constitutional order; how courts decide whether a particular legal principle is so fundamental that it merits recognition under section 7; the conditions under which section 7 will apply to a legal dispute; the legal norms that have been recognized, or rejected, as principles of fundamental justice under section 7; and the very limited circumstances in which an infringement of section 7 will be justified under section 1. The second edition has been extensively revised to take into account several significant changes in the law over the last several years, including the Supreme Court of Canada's decisions in Bedford (sex work) and Carter (medically assisted dying).
Explore
Resource type
- Book (1)
- Journal Article (3)