Section 7: Arbitrariness, Overbreadth, Gross Disproportionality

The architecture of s.7

Section 7 protects life, liberty and security of the person, and the right not to be deprived of them except in accordance with the principles of fundamental justice.

A s.7 analysis has two stages:

1. Has the state caused a deprivation of life, liberty or security of the person?
2. Was the deprivation in accordance with the principles of fundamental justice?

A breach occurs only when both questions are answered against the state.

When are life, liberty or security engaged?

Life. State action that increases the risk of death or that prohibits conduct critical to preserving life (Carter, Bedford).

Liberty. Physical detention, criminal sanctions, and intrusions on fundamental personal choices about one's own life (Morgentaler).

Security of the person. State-imposed serious psychological stress, interference with bodily integrity, and (for some judges) reproductive autonomy.

The three principles

Modern s.7 challenges turn on three principles of fundamental justice articulated and refined in Bedford and Carter.

Arbitrariness. A law is arbitrary if there is no rational connection between its effect and its objective. The question is whether the law cuts against its own goal, not whether it is simply ineffective. Bedford struck the bawdy-house provision in part on this basis: it endangered sex workers without advancing the state's protective objective.

Overbreadth. A law is overbroad if it captures conduct that bears no connection to its objective. Even if some applications of the law advance its purpose, sweeping in unrelated conduct violates s.7. The living-on-avails provision was overbroad — it captured drivers and security staff whose presence promoted safety, defeating the law's protective purpose.

Gross disproportionality. A law is grossly disproportionate if its effects are completely out of proportion to its objective. The threshold is high — disproportionality must be marked. The communicating provision was grossly disproportionate: criminalising street negotiation pushed encounters into riskier conditions and the increased danger to sex workers far outweighed any nuisance reduction.

Section 1 in s.7 cases

Section 1 is theoretically available to save a s.7 breach but rarely succeeds. The reason is doctrinal: many of the matters relevant at s.1 (rational connection, minimal impairment) overlap with the principles already applied. A law that fails arbitrariness or overbreadth at s.7 will rarely meet rational connection at s.1.

Bedford's suspended declaration of invalidity gave Parliament one year to respond. The federal response — PCEPA 2014 — is itself the subject of ongoing constitutional litigation.

Carter and stare decisis

Carter is the model for revisiting precedent. The Court reaffirmed that a court may revisit a precedent where (a) a new legal issue is raised; or (b) there is a significant change in the circumstances or evidence that fundamentally shifts the parameters of the debate. The s.7 framework had developed since Rodriguez (1993); the social and legislative facts (working regimes in Belgium, the Netherlands, Oregon) had changed; and the legal landscape on overbreadth had matured.

Drafting tip

When applying s.7, lay the framework cleanly. Identify the deprivation. Match the impugned provision to one or more of arbitrariness, overbreadth, gross disproportionality. Avoid mixing them up — each has its own analytical structure. Articulate the legislative objective with care, because the analysis pivots on the gap between what the law does and what it set out to do.