McGill Law Journal Revue de droit de McGill
BEDFORD AND THE STRUCTURE OF SECTION 7
Hamish Stewart*
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 particu-
lar 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 oth-
er 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 ob-
jectives was not relevant to these norms. There are
some difficulties in understanding this highly indi-
vidualistic approach to section 7, and those difficul-
ties 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 will-
ingness to do something it has never done before:
recognize an infringement of a section 7 right as a
justified limit under section 1. The Courts clarifi-
cation of the relationship between the norms
against overbreadth, arbitrariness, and gross dis-
proportionality is welcome, but its individualistic
articulation of those norms is difficult to under-
stand and its suggestion that section 7 violations
may now be easier to save under section 1 is trou-
bling.
Dans laffaire Canada (P.G.) c. Bedford, la
Cour suprme du Canada a invalid trois disposi-
tions du Code criminel lies la prostitution, sta-
tuant quelles avaient une porte excessive et un ef-
fet prjudiciable totalement disproportionn. Les r-
percussions de Bedford se ressentent bien au-del du
seul contexte du travail du sexe ou mme du droit
criminel. Premirement, la Cour a statu que la por-
te excessive, larbitraire, et la disproportion totale
sont trois notions distinctes. Elles ne dcoulent donc
pas toutes dune norme unique sopposant ce
quune loi ait une porte excessive. Deuximement,
la Cour a statu quun demandeur pouvait tablir
une atteinte aux droits garantis par larticle 7 de la
Charte en dmontrant quune loi a un effet excessif,
arbitraire, ou totalement disproportionn sur la vie,
la libert ou la scurit dune seule personne. La
Cour a galement affirm que lefficacit de la loi
dans la ralisation de ses objectifs nest pas perti-
nente lvaluation de sa conformit avec ces trois
normes constitutionnelles. Cette approche haute-
ment individualiste lanalyse de larticle 7 soulve
certaines difficults qui mnent la troisime cons-
quence majeure de larrt Bedford. En dplaant
toute considration de lefficacit de la loi sous
lanalyse de la proportionnalit de la limite des droits
protgs par larticle 7, la Cour semble indiquer une
volont de faire quelque chose quelle na jusquici
jamais fait, cest–dire reconnatre quune atteinte
de ces droits puisse tre justifie sous larticle pre-
mier de la Charte. La clarification de la Cour concer-
nant la relation entre les normes de la porte exces-
sive, de larbitraire et de la disproportion totale est
bienvenue, mais son articulation individualiste de
ces normes est difficile comprendre. Par ailleurs, sa
suggestion quune atteinte aux droits garantis par
larticle 7 serait maintenant plus facile justifier
sous larticle premier est troublante.
* Hamish Stewart is a Professor of Law at the University of Toronto, where he teaches
criminal law and evidence. His most recent book is Fundamental Justice: Section 7 of
the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012). He is very
grateful to two anonymous reviewers, Kyle Kirkup, Carol Rogerson, Diana Berbece, and
Andrew Martin for their helpful comments on a draft of this paper.
Citation: (2015) 60:3 McGill LJ 575 Rfrence : (2015) 60 : 3 RD McGill 575
Hamish Stewart 2015
576 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Introduction
I.
An Overview of Bedford
II.
Revisiting the Principles of Fundamental Justice
III. Revisiting the Relationship Between Section 7 and Section 1
Conclusion
577
578
584
588
593
BEDFORD AND THE STRUCTURE OF SECTION 7 577
Introduction
In Canada (A.G.) v. Bedford,1 the Supreme Court of Canada surpris-
inglyand unanimouslyinvalidated three prostitution-related provi-
sions of the Criminal Code.2 The decision has sparked an important public
discussion about the appropriate regime for the legal regulation of sex
work and a legislative response that emphatically reasserts the role of
criminal prohibitions.3 But the focus of this paper is not on sex work. It is
rather on the broader implications of Bedford for section 7 of the Charter.4
The decision suggests three important and related developments in the
Courts understanding of the substance of certain principles of fundamen-
tal justice and how an infringement of those principles might be justified
under section 1. The first development concerns the distinctiveness of the
specific principles of fundamental justice that were raised in Bedford: the
norms against arbitrariness, overbreadth, and gross disproportionality.
Case law before Bedford suggested that these three norms might all be
aspects of a more basic norm against overbreadth. But the Bedford Court
confirmed that each of these norms is different from the others and has a
distinct role to play in constitutional law. The second development con-
cerns the content of these norms, or how to show that one of them has
been violated. The Court held that each of these three norms can be in-
fringed by the effect of a law on the life, liberty, or security of a single per-
son. There are a number of difficulties in the application of this holding,
but if the Court really means what it says, then there is a third develop-
ment. There must be room, somewhere in Charter law, to consider what
are often called societal or collective interests; that is, the interests of per-
sons other than those whose section 7 interests are directly affected by the
law in question. So if the principles of fundamental justice are entirely
concerned with the rights and interests of the individuals directly affect-
ed, then the interests of others must be considered under section 1. Thus,
the Courts new way of articulating the relationship between the princi-
ples of fundamental justice and the Oakes5 test for justifying a limit on a
Charter right may indicate an important shift in the Courts longstanding
1 2013 SCC 72, [2013] 3 SCR 1101 [Bedford], revg in part 2012 ONCA 186, 346 DLR
(4th) 385 [Bedford Ont CA], affg in part 2010 ONSC 4264, 327 DLR (4th) 52 [Bedford
Ont Sup Ct J].
2 RSC 1985, c C-46.
3 See Bill C-36, An Act to amend the Criminal Code in response to the Supreme Court of
Canada decision in Attorney General of Canada v. Bedford and to make consequential
amendments to other Acts, 2nd Sess, 41st Parl, 2014 (first reading 4 June 2014) [Bill C-
36].
4 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
5 R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200 [Oakes].
578 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
reluctance to uphold section 7 violations under section 1. The reasoning in
Bedford likely makes it easier to establish a section 7 violation because
the Charter applicant need only show that the interest in life, liberty, or
security of one (possibly hypothetical) person is affected in a manner not
in accordance with the principles of fundamental justice. But it might also
make it easier to save a limitation of a section 7 right under section 1 be-
cause the societal interests that would previously have informed the con-
tent and application of the principles of fundamental justice will now be
relevant to the question of proportionality. The Courts clarification of the
differences between overbreadth, arbitrariness, and gross disproportional-
ity is welcome, but its individualistic approach to those norms is likely to
be difficult to apply. And the suggestion that infringements of these
norms might be justified under section 1 may work for the norm against
overbreadth, but if applied to other principles of fundamental justice may
threaten the important principle that infringements of the very basic val-
ues protected by section 7 should indeed be very difficult to justify.
I. An Overview of Bedford
Chief Justice McLachlin began her reasons in Bedford by reminding
us that, under the previous criminal law regime, sex work was not a crime
in Canada, but was hedged about with criminal restrictions that made it
very difficult for sex workers to do their work in a lawful, safe, and busi-
ness-like way.6 In Bedford, three sex workers sought a declaration that
three of those restrictions were unconstitutional: the offence of keeping a
common bawdy-house (s. 210), the offence of living on the avails of prosti-
tution (s. 212(1)(j)), and the offence of communicating in public for the
purpose of prostitution (s. 213(1)(c)).7 The applicants argued that these
provisions prevented them from lawfully taking steps to protect them-
selves from the dangers of sex work, notably from the potential violence of
their clients.
The principal challenge was based on section 7 of the Charter. There
are two essential steps in a section 7 claim: first, the Charter applicant
has to show that the legislation in question affects his or her life, liberty,
or security of the person; second, the Charter applicant has to show that
the legislation violates one or more of the principles of fundamental jus-
6 See Bedford, supra note 1 at para 1. The court for the most part uses the statutory term
prostitution, but I will for the most part use the term sex work. An even broader
challenge to the sex work offences is working its way through the British Columbia
courts, though the only issue resolved so far is the standing of the applicants to bring
the challenge: see Canada (AG) v Downtown Eastside Sex Workers United Against Vio-
lence Society, 2012 SCC 45, [2012] 2 SCR 524.
7 Criminal Code, supra note 2.
BEDFORD AND THE STRUCTURE OF SECTION 7 579
tice. If both of these are demonstrated, then the applicant has shown that
his or her section 7 right is violated. The government can then seek to
show that the infringement of section 7 was justified under section 1,
though the Supreme Court of Canada has yet to recognize a justified limit
on a section 7 right.8
Because the impugned provisions were criminal prohibitions punisha-
ble by imprisonment, the section 7 right to liberty was of course engaged.
But a section 7 claim based on the possibility of imprisonment for commit-
ting a prostitution-related offence was not helpful to these applicants;
their complaint was not that they might be charged with an offence but
that offences relating to sex work constrained the way they could conduct
an otherwise lawful activity.9 So they argued that the impugned provi-
sions engaged the right to security of the person because of the danger
that they created to sex workers who are attempting to comply with the
law. The Court agreed: the provisions prevent people engaged in a
riskybut legalactivity from taking steps to protect themselves from
the risks.10 In order to reach that conclusion, the Court had to consider
three aspects of how the legislation works. First, what exactly was the
reach of the legislationthat is, what conduct did it criminalize? Second,
given that reach, how did it affect sex workers who were trying to conduct
themselves lawfully? Third, should these effects have been attributed to
the legislation itself or to the choice of sex workers to engage in sex work?
The Court answered these questions as follows. A bawdy-house was
any place that is kept or occupied or resorted to for the purpose of
acts of prostitution, including the prostitution of one sex worker.11 Thus,
the offence of keeping a common bawdy-house (s. 210)12 had the practical
effect of confin[ing] lawful prostitution to two categories: street prostitu-
tion and out-calls.13 The offence of living on the avails of the prostitution
of another (s. 212(1)(j))14 criminalized not only those who were exploitative
or parasitic but also those who suppl[ied] a service to a prostitute, be-
8 See Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights
and Freedoms (Toronto: Irwin Law, 2012) (structure of a s 7 claim at 2122 and discus-
sion of ss 7 and 1 at 287305) [Stewart, Fundamental Justice].
9 See Bedford, supra note 1 at para 58, n 1. The right to carry on an otherwise lawful ac-
tivity, as such, is not protected by the section 7 liberty interest.
10 Ibid at para 60.
11 Ibid at para 61 [internal quotations omitted].
12 Criminal Code, supra note 2.
13 Bedford, supra note 1 at para 62.
14 Criminal Code, supra note 2.
580 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
cause she is a prostitute.15 The practical effect of that provision was to
prevent a prostitute from hiring bodyguards, drivers and receptionists.16
The offence of communicating in public for the purpose of prostitution (s.
213(1)(c))17 prevented street sex workers from attempting to screen their
clients in any way.18 The overall effect of these provisions was to make a
lawful activity much more dangerous than it would have been without
them. Nevertheless, the government argued, the dangers of sex work
should not be attributed to the law but to the sex workers decision to go
into sex work: anyone could both comply with the law and avoid the dan-
gers of sex work by not engaging in sex work in the first place.19 The
Court rejected this argument on the basis that some people (especially
some women) have no meaningful choice but to engage in prostitution.20
Moreoverand perhaps more significantlythe Court emphasized that
the choice to engage in sex work was a lawful one.21 So, just as a law pre-
venting a cyclist from wearing a helmet would affect security of the per-
son by making the lawful activity of bicycle riding more dangerous, so the
impugned provisions affected security of the person by making the lawful
activity of exchang[ing] … sex for money more dangerous.22
At the second step of the section 7 argument, the applicants had to
show that the effect of the impugned provisions on their liberty, and espe-
15 Bedford, supra note 1 at para 66.
16 Ibid.
17 Criminal Code, supra note 2.
18 See Bedford, supra note 1 at paras 6869.
19 See ibid at para 79.
20 Ibid at para 86.
21 See ibid at para 87. The centerpiece of Bill C-36, supra note 3, is the new offence of pur-
chasing sexual services: see Criminal Code, supra note 2, s 286.1. On this approach, sex
work is, at least on one side of the transaction, no longer an otherwise lawful activity.
This shift in legislative policy will have significant consequences for framing the inevi-
table constitutional challenge to the new legislative regime.
22 Bedford, supra note 1 at para 87. The holding that security of the person is engaged
when legislation (or other state action) prevents someone from taking steps to protect
him or herself from the non-trivial risks of an otherwise lawful activity could have very
significant implications for engaging section 7 in future cases. Every activity, lawful or
unlawful, creates risks for the person carrying it out and for other persons. The Courts
proviso that the risk created by a law must be non-trivial (see ibid at para 91) to engage
security of the person recognizes this reality; without this proviso, section 7 would apply
to all laws regulating human activitythat is, to all laws. Nevertheless, this holding
means that the section 7 interest in security of the person is engaged in a wide variety
of contexts, such as the law of self-defence (see Citizens Arrest and Self-defence Act, SC
2012, c 9, enacting new provisions concerning self-defence and defence of property) and
regulations limiting access to medical treatment (see Chaoulli v Quebec (AG), 2005 SCC
35, [2005] 1 SCR 791 [Chaoulli]).
BEDFORD AND THE STRUCTURE OF SECTION 7 581
cially on their security of the person, was not in accordance with the prin-
ciples of fundamental justice. There are many principles of fundamental
justice,23 but the principles at play in Bedford all involve considering the
effectiveness of legislation in achieving its purpose, in light of the legisla-
tions impact on the interests protected by section 7 of the Charter. They
are, in other words, principles concerning the rationality of legislation.24
The three principles of fundamental justice invoked in Bedford were the
norm against arbitrariness, the norm against overbreadth, and the norm
against gross disproportionality. The Court explained these norms as fol-
lows. Legislation is arbitrary where there is no connection between the
effect and the object of the law.25 Legislation is overbroad where it goes
too far and interferes with some conduct that bears no connection to its
objective.26 Legislation is grossly disproportionate where the seriousness
of its impact on section 7 interests is totally out of sync with the objective
of the measure.27
Since these principles concern instrumental or means-ends rationali-
ty, it seems that a court should consider three issues in applying them:
the objectives of the law in question, its effectiveness in achieving those
objectives, and its effects on the interests protected by section 7. The first
of these issues depends on the courts understanding of the purpose of the
legislation and so is essentially an exercise in statutory interpretation.
But the second and third appear to be empirical and possibly to require
social science evidence concerning the impact of the law. In this respect,
Bedford was an unusual case because extensive social science evidence
was led at first instance and was the basis for some very specific factual
findings. Justice Himel considered [o]ver 25,000 pages of evidence in 88
volumes, comprising affidavits of the applicants and affidavits of numer-
ous experts accompanied by a large volume of studies, reports, newspa-
per articles, legislation, Hansard, and many other documents.28 On the
basis of all the evidence, Justice Himel made a number of findings of leg-
islative fact. In particular, she found that [p]rostitutes, particularly those
who work on the street, are at a high risk of being the victims of physical
23 See Stewart, Fundamental Justice, supra note 8 (an attempt to provide a comprehen-
sive list and analysis of the principles of fundamental justice that have been recognized
so far at ch 45).
24 See ibid at 151; Alana Klein, The Arbitrariness in Arbitrariness (And Overbreadth
and Gross Disproportionality): Principle and Democracy in Section 7 of the Charter
(2013) 63 Sup Ct L Rev 377.
25 Bedford, supra note 1 at para 98.
26 Ibid at para 101.
27 Ibid at para 120. These three principles are discussed in more detail in Part II, below.
28 Bedford Ont Sup Ct J, supra note 1 at para 84.
582 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
violence but that this risk could be reduced by taking measures such as
working indoors, hiring staff (including drivers and security), taking time
to screen clients, and using monitoring equipment.29 The Supreme Court
of Canada not only accepted these findings of legislative fact, but held
that they were entitled to the same degree of deference as findings of ad-
judicative fact.30 Yet, as discussed in more detail below, the Courts new
approach to the principles of fundamental justice suggests that this kind
of fact-finding exercise should be conducted under section 1 rather than
under section 7 of the Charter.
Given the factual findings and their determination of the purposes of
the legislation, the Court found that two of the provisions at issue were
grossly disproportionate and that one of them was overbroad. The Court
did not decide whether any of them was arbitrary. The Court found that
the offence of keeping a common bawdy-house was grossly disproportion-
ate. Its purpose was not, as urged by the government, to deter prostitu-
tion as such, but to combat neighbourhood disruption or disorder and to
safeguard public health and safety.31 Its effect on sex workers who want
to conduct their work lawfully was to force them to work in the streets or
to engage in out-call work. By preventing the basic safety precaution of
moving sex work indoors, the bawdy-house provision created a grossly
disproportionate effect on the health, safety and lives of prostitutes.32
But the Court did not consider the effectiveness of the provision in achiev-
ing its purposes. The Courts assumption seems to be that even if it was
completely effective, by eliminating all bawdy-houses, the nuisances
thereby eliminated would not justify the increased danger to sex workers
of forcing all lawful sex work to be conducted either in the streets or on an
out-call basis.
The Court found the offence of living on the avails of prostitution to be
overbroad. The purpose was not, as the government urged, to promote
dignity and equality, but to target pimps and the parasitic, exploitative
conduct in which they engage.33 But the offence had been interpreted to
penalize those who live on the avails in a non-exploitative, non-parasitic
way, such as legitimate drivers, managers, or bodyguards, and so was
29 Ibid at para 421.
30 See Bedford, supra note 1 at paras 4856.
31 Ibid at para 132.
32 Ibid at paras 135, 136 [internal quotation omitted].
33 Ibid at para 137.
BEDFORD AND THE STRUCTURE OF SECTION 7 583
overbroad.34 The government argued that this overbreadth did not offend
section 7 because of the evidentiary difficulty in detecting the difference
between, for example, an exploitative pimp and a legitimate manager.35
The Court deferred this consideration to section 1 of the Charter36an
important move that I discuss in Part III, below.
The Court found the offence of communicating in public for the pur-
pose of prostitution to be grossly disproportionate. Its purpose was not, as
the government argued, to eliminate street prostitution, but to get prosti-
tution off the streets in order to prevent the nuisances that street prosti-
tution can cause.37 The effect of the prohibition on communicating in pub-
lic was to prevent sex workers from using the essential tool38 of screen-
ing clients before moving from the street to an indoor location (where both
sex work and communicating would be lawful). Thus the prohibition cre-
ated dangers for street prostitutes, an effect on security of the person that
was grossly disproportionate to the purpose of the prohibition. As in the
discussion of the bawdy-house provision, the Court seems to assume that
even if the prohibition went some way toward achieving its purpose, the
resulting abatement of nuisance would not justify the dangers: If screen-
ing could have prevented one woman from jumping into Robert Picktons
car, the severity of the harmful effects is established.39
The Court found no section 1 justification for any of these violations of
section 7. Given the Courts previous reluctance to uphold section 7 viola-
tions under section 1, it was unsurprising that the government did not
mount a vigorous section 1 argument. I will return, in Part III, below, to
the question of the relationship between section 7 and section 1.
Finally, as to the remedy, the Court declared the communicating and
living on the avails provisions to be unconstitutional, and declared that
the word prostitution in the definition of common bawdy-house was
unconstitutional.40 But the Court suspended the declaration of invalidity
34 Ibid at para 142. The Court could have taken this case as an opportunity to reinterpret
the offence so that its elements were more closely aligned with its purpose, but did not
do so.
35 See ibid at para 143.
36 See ibid at para 144.
37 Ibid at para 147.
38 Ibid at para 148 [internal quotation omitted].
39 Ibid at para 158.
40 See ibid at para 164. Thus, the constitutionality of the offence of keeping a common
bawdy-house for the purpose of the practice of acts of indecency is still a live issue,
though perhaps not a practically important one. In light of R v Labaye, 2005 SCC 80,
[2005] 3 SCR 728, which required a harm test to be met for indecency, it is very hard for
584 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
for one year so that prostitution would not be wholly unregulated by the
criminal law while Parliament considered how to amend the law.41
II. Revisiting the Principles of Fundamental Justice
The principles of fundamental justice at play in Bedford were, as not-
ed above, the norms against arbitrariness, overbreadth, and gross dispro-
portionality. Although each of these principles had been recognized in ear-
lier cases,42 there was considerable doubt about whether they were dis-
tinct from each other. Both the Supreme Court of Canada and the Ontario
Court of Appeal had on occasion treated overbreadth as the central idea,
with arbitrariness and gross disproportionality as subordinate aspects of
that idea.43 But in Bedford, the Court held that each of these norms is dis-
tinct from the other two. A law is arbitrary, the Court says, if there is no
rational connection between its objectives and its effects on life, liberty, or
security of the person.44 The defect of an arbitrary law is that it affects the
section 7 interests for no reason. The lack of connection that is the key to
arbitrariness can be demonstrated by showing either that the law under-
mines its own purpose or that the law does not connect with that purpose
at all.45 A law is overbroad if it is so broad in scope that it includes some
conduct that bears no relation to its purpose; an overbroad law is arbi-
trary in part.46 The defect of an overbroad law is that the section 7 inter-
ests of some (though not all) people it applies to are affected for no reason.
The norms against arbitrariness and overbreadth are, to that extent, re-
the prosecution to prove that private, consensual, and otherwise lawful sexual acts be-
tween adults are indecent.
41 See Bedford, supra note 1 at paras 16669. The preamble to Bill C-36, supra note 3,
speaks of Parliaments concern about exploitation, objectification, commodification, and
violence, and of its purpose to promote human dignity and equality. This is an obvious
attempt to change the constitutional analysis by changing the Courts assessment of the
legislative purpose of the legal regime around sex work.
42 The first arbitrariness case is arguably R v Morgentaler, [1988] 1 SCR 30, 44 DLR (4th)
385. The norm against overbreadth was first explicitly articulated in R v Heywood,
[1994] 3 SCR 761, 120 DLR (4th) 348 [Heywood]. The precise origin of the norm against
gross disproportionality is harder to identify, but it was established by the time Suresh
v Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3
[Suresh] and R v Malmo-Levine, 2003 SCC 74, [2003] 3 SCR 571 [Malmo-Levine] were
decided.
43 See R v Clay, 2003 SCC 75 at para 38, [2003] 3 SCR 735; Cochrane v Ontario (AG),
2008 ONCA 718 at para 18, 92 OR (3d) 321. See also Stewart, Fundamental Justice,
supra note 8 at 15155.
44 See Bedford, supra note 1 at para 111.
45 See ibid at para 119.
46 Ibid at para 112 [emphasis in original].
BEDFORD AND THE STRUCTURE OF SECTION 7 585
lated. But the norm against gross disproportionality is quite different. A
grossly disproportionate law is not necessarily arbitrary: whatever its
other defects, it may well be rationally connected to its purpose.47 Nor is it
necessarily overbroad: it may affect only those people whom it needs to af-
fect to achieve its purpose. But its impact on the life, liberty, or security of
the person of those people is so severe that it violates our fundamental
norms.48 A grossly disproportionate law is one which, even if it achieves
its purposes completely, does so at too high a cost to the life, liberty, and
security of individual persons.
This clarification of the relationship between these three norms is
welcome. Each of these norms points to a specific and distinctive defect in
a law: a law that is effective in achieving its purposes but goes too far
(overbreadth) is not the same as a law that is ineffective (arbitrary) or ef-
fective and suitably tailored but nonetheless excessively damaging to sec-
tion 7 interests (grossly disproportionate).49 The Courts articulation of the
differences among these three norms should assist litigants and judges in
identifying the precise way in which, and the kind of evidence and argu-
ment required to demonstrate that, a law offends one of these norms.
But it is more difficult to understand the Courts comments about how
to demonstrate a violation of these norms. The Court held that any of
these constitutional defects could be established by showing a certain ef-
fect on a single person, without regard for empirical evidence as to how
well the law achieved its purposes:
[a]ll three principlesarbitrariness, overbreadth, and gross dispro-
portionalitycompare the rights infringement caused by the law
with the objective of the law, not with the laws effectiveness. That
is, they do not look to how well the law achieves its object, or to how
much of the population the law benefits. They do not consider ancil-
lary benefits to the general population. Furthermore, none of the
principles measure the percentage of the population that is negative-
ly impacted. The analysis is qualitative, not quantitative. The ques-
tion under s. 7 is whether anyones life, liberty or security of the per-
son has been denied by a law that is inherently bad; a grossly dis-
proportionate, overbroad, or arbitrary effect on one person is suffi-
cient to establish a breach of s. 7.50
47 See ibid at para 109.
48 Ibid.
49 For a more detailed presentation of this argument, see Stewart, Fundamental Justice,
supra note 8 at 15255.
50 Bedford, supra note 1 at para 123 [emphasis in original].
586 (2015) 60:3 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
This highly individualized reading of the three norms may sound plausi-
ble, but applying it is likely to be far from simple.
It is easy to see how a law can be overbroad as applied to one person.
An overbroad law is one that affects the section 7 interests of more people
than necessary to achieve its purposes: if it applies to only one person
more than it needs to, that one person might say that even if the re-
striction of others section 7 interests is necessary, his or her own section 7
interests have been affected for no reason. The law at issue in Heywood,
which (the Court held) was designed to protect children but significantly
restricted the liberty of certain people who posed no danger to children, is
a good example. Indeed, Heywood shows that the impact on the section 7
interests of one reasonably hypothetical person is enough, since the par-
ticular scenarios that generated the finding of overbreadth were, though
plausible, not in evidence and in no way resembled the facts that led to
the charge against Heywood himself.51
It is a little harder, but still possible, to see how gross disproportional-
ity can be shown with respect to only one person. The idea of proportional-
ity, generally speaking, involves a comparison of the beneficial effect of a
law on one interest or value with its harmful impact on another interest
or value. In the context of section 7, the relevant comparison would be be-
tween the effectiveness of the law in promoting its purposes and the det-
rimental impact of the law on section 7 interests (life, liberty, and security
of the person). If, for example, the law was somewhat effective in achiev-
ing its objective but the impact on security of the person was particularly
severe, the law would offend the norm against gross disproportionality.
But the comparison would not be individualized: it would be between the
overall effects of the law on its objective and the overall effects of the law
on the security of all affected persons. That is not the Courts understand-
ing of gross disproportionality. Instead, the holding is that a grossly dis-
proportionate law is one that has such a severe impact on section 7 inter-
ests that even the complete achievement of its objectives could not justify
it. The overall assessment of its effects should be made instead at the final
step of the Oakes proportionality test.52 In other words, as the Court says,
the appropriate comparison is between the rights infringement caused by
the law [and] the objective of the law.53 A non-trivial impact on, for ex-
ample, even one persons security of the person is always disproportionate
to the complete achievement of a relatively unimportant objective, even if
that objective is completely achievedin Bedford, the danger to sex work-
51 See Heywood, supra note 42 at 794801.
52 See Malmo-Levine, supra note 42 at paras 17982.
53 Bedford, supra note 1 at para 123.
BEDFORD AND THE STRUCTURE OF SECTION 7 587
ers on the one hand, and the abatement of street nuisances on the other.
And, even if the objective is important and the law achieves it, dispropor-
tionality is shown if the effects of the law on even one persons section 7
interests are so extreme that they are per se disproportionate to that ob-
jective.54 Bedford tells us that this kind of disproportionality can be estab-
lished by an effect on only one person.55
While it may be possible to understand overbreadth and gross dispro-
portionality in individualistic terms, it is very hard to understand the
norm against arbitrariness in this way. A law is arbitrary if there is no ra-
tional connection between its objectives and its effects on section 7 inter-
ests. So, it seems that as long as a law goes some way to achieving its ob-
jectives, it is not arbitrary. For that reason, it seems that a court would
need some empirical evidence concerning both the effectiveness of the law
in achieving its purposes and its impact on section 7 interests. Instead,
the Court said, an arbitrary effect on one person is sufficient to establish
arbitrariness, and that how well the law achieves its object is not to be
considered in determining arbitrariness.56 It is unclear how a court is
supposed to decide that a law has no rational connection to its objective
without considering how well it achieves that objective; put another way,
it is hard to see how a laws effect on one person, or any number of per-
sons, can be said to be arbitrary without some assessment of whether that
effect contributes in some measure to the achievement of the laws pur-
pose.
Thus, while the Courts clarification of the differences between these
three substantive norms of fundamental justice is welcome, its holding
that they should be applied individualistically is more difficult to accept.
The norms against arbitrariness, overbreadth, and gross disproportionali-
ty are in essence requirements that the law exhibit a certain degree of ra-
tionality: a Charter applicant who invokes them is not challenging the le-
gitimacy of the states objectives but the means used to reach those objec-
tives in light of the effect of those means on the applicants section 7 in-
terests. So it is hard to see how one can assess such a challenge without
considering the overall effectiveness of the means in achieving their objec-
tives. Yet, by holding that a violation of one of these norms can be demon-
strated by an impact on one (possibly hypothetical) person, the Court is
asking us to do just that.
54 Suresh, supra note 42 at para 47.
55 See supra note 1 at para 123.
56 Ibid.
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III. Revisiting the Relationship between Section 7 and Section 1
In the past, the Court has often said that the content of the principles
of fundamental justice should be constructed with reference to both indi-
vidual and societal interests. Although there is no principle of fundamen-
tal justice that requires legislation to strike the right balance between in-
dividual and collective interests, the Court has said that some of the prin-
ciples of fundamental justice reflect a spectrum of interests [including]
societal concerns.57 The Court has also said that it is very difficult to jus-
tify infringements of section 7 under section 1 and has never done so
(though it has never said that it would be impossible).58 And there is a
good reason why that should be so. A section 7 violation requires a Char-
ter applicant to demonstrate both an impact on life, liberty, or security of
the person and noncompliance with a principle of fundamental justice.
The principles of fundamental justice are those principles of procedural
fairness and substantive justice that are fundamentally important to our
sense of how the justice system should operate. The interests protected by
section 7 are among the most basic individual rights recognized by the le-
gal order. When those interests are affected by a law that is not funda-
mentally justfor example, when individual liberty is taken away in a
grossly disproportionate mannerthen there is indeed a very serious de-
parture from the values that the legal system is supposed to respect,
whatever its other objectives might be. And, before Bedford, section 1 jus-
tification was particularly difficult if the section 7 infringement involved
one of the three substantive principles at issue in that case. A law that vi-
olated one of these norms, it seemed, would necessarily fail one or more of
the three elements of the Oakes test for a proportional limit on a Charter
right because the elements of proportionality seem to mirror the norms
themselves. An arbitrary law was not rationally connected to its objective;
an overbroad law was not a minimal impairment of the section 7 right;
and the deleterious effects of a grossly disproportionate law on the section
7 right would necessarily outweigh its salutary effects on the legislative
objective.59
Bedford casts doubt on this understanding of the relationship between
section 7 and section 1, at least with regard to the norms against arbitrar-
iness, overbreadth, and gross disproportionality. The highly individualis-
tic focus of the section 7 analysis is complemented by an apparent will-
ingness to consider societal interests at the section 1 stage, thus opening
57 R v Seaboyer, [1991] 2 SCR 577 at 603, 83 DLR (4th) 193. See also Malmo-Levine, supra
note 42 at para 98.
58 See Stewart, Fundamental Justice, supra note 8 (discussion of relevant cases at 289
92).
59 See ibid at 297305.
BEDFORD AND THE STRUCTURE OF SECTION 7 589
up the possibility of justifying a violation of a principle of fundamental
justice. Since the section 1 analysis concerning the provisions at issue in
Bedford itself is quite brief, it is difficult to be sure how exactly this rela-
tionship between section 7 and section 1 is supposed to work, and in par-
ticular how it avoids the seemingly logical claim that the steps of the Oak-
es proportionality test simply mirror the substantive norms against arbi-
trariness, overbreadth, and gross disproportionality. But it could work if
there were a difference between the factors to be considered under section
7 and under the Oakes test. And that is just what Bedford indicates: the
questions under section 7 are whether the laws purpose, taken at face
value, is connected to its effects and whether the negative effect is grossly
disproportionate to the laws purpose.60 Taking the laws purpose at face
value must mean, at least for section 7 purposes, that the laws purpose is
constitutionally permissible and that it is at least conceivable that the law
is effective in achieving its objective. Then, to determine whether the rel-
evant section 7 principle is violated, a Charter applicant would only need
to show that one (possibly hypothetical) persons life, liberty, or security of
the person was affected in a way that was arbitrary, overbroad, or grossly
disproportionate. The government would then have the opportunity to
show that this effect was justified under section 1. The logical claim that a
law violating one of these principles could not pass the Oakes test must be
reconsidered because a different set of considerations comes into play un-
der section 1: not just the effect of the law on (at least) one persons sec-
tion 7 interests, but the effect of the section 7 violation in achieving the
laws policy objectives.
This approach can be illustrated with respect to the norm against
overbreadth. Whenever a law is conceived of as an instrument to achieve
purposes that are defined independently of the law itself,61 as was the
case in Bedford, there is likely to be some degree of overbreadth; there are
likely to be some individual cases where the application of the law would
not advance its purposes. The laws regulating highway traffic provide a
simple example. These laws are supposed to provide a fairly clear set of
rules that both facilitate the use of the roads and promote their safe use.
But it is easy to think of cases where violating those rules would both fa-
cilitate the use of the roads and be perfectly safe: disobeying a stop sign or
red light when there is no other traffic on the road, or driving above the
speed limit on a clear, straight, dry, empty road. More serious offences
60 Bedford, supra note 1 at para 125 [emphasis added].
61 Not all laws are of this kind. The law of homicide can be understood simply as prohibit-
ing unlawful killings because they are wrong in themselves, not as aiming at some pur-
pose that is independently desirable and is promoted by defining certain killings as
wrongful and then prohibiting them.
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sometimes have the same structure. Subsection 150.1(1) of the Criminal
Code sets the age of consent to sexual conduct at sixteen years, subject to
several exceptions that prevent the criminalization of consensual sexual
activity between young persons who are close in age.62 The purpose of set-
ting an age of consent is to protect young people from premature sexual
activity. But perhaps some people under sixteen are sufficiently mature to
make reasoned choices about engaging in sexual activity. To that extent,
subsection 150.1(1) is overbroad. It restricts the liberty of some persons
under the age of sixteen and their older sexual partners. The older part-
ners liberty is restricted by the penalty of imprisonment for the offence,
while both partners liberty is restricted by state interference with his or
her choice of sexual partner, a decision of fundamental personal im-
portance that is likely protected by section 7.63 So the law affects the liber-
ty interest of both the older partner and the underage complainant. But
according to Bedford, if it is possible to identify one (possibly hypothetical)
case where these restrictions on sexual activity do not serve the interests
of the statute, the law is overbroad. One might think of an emotionally
mature complainant who is fifteen years and eleven months old and who
is in a non-exploitative sexual relationship with a twenty-two-year-old ac-
cused. On the basis of this kind of case, it might well be argued that sub-
section 150.1(1) violates section 7 of the Charter because, in its over-
breadth, it restricts liberty in a manner not in accordance with the princi-
ples of fundamental justice. But this limit on section 7 could readily be
justified under section 1: the government could show why this over-
breadth was reasonably necessary for effective regulation of the problem
in question. The overall purpose of subsection 150.1(1) is to protect young
people from premature sexual activity. Within that overall purpose, the
pressing and substantial objective of choosing a bright line rule, rather
than a vaguer standard of, for example, sufficient maturity to make rea-
soned choices about sexual activity is to avoid the evidentiary difficulties
of determining whether an individual complainant did or did not meet
that standardparticularly bearing in mind that the Crown would have
to prove beyond a reasonable doubt that he or she did not. The overbroad
restriction on sexual activity is rationally, indeed necessarily, connected
to that objective. It might be thought that because the law is overbroad at
the section 7 stage, it cannot survive the next step of the Oakes testthe
62 The age of consent, the exceptions, and the associated fault elements are discussed in
Hamish C Stewart, Sexual Offences in Canadian Law (Aurora, Ont: Canada Law Book,
2004) (loose-leaf revision 14), ch 4:500 [Stewart, Sexual Offences].
63 On this aspect of the liberty interest, see Stewart, Fundamental Justice, supra note 8 at
7478.
BEDFORD AND THE STRUCTURE OF SECTION 7 591
minimal impairment branch.64 But the government could show that, as
compared to other conceivable laws that would also necessarily suffer
from a degree of overbreadth in achieving their purpose, setting the age of
consent for most purposes at sixteen, while granting the close in age ex-
ceptions, is minimally impairing. Setting the age at eighteen or twenty-
one, or removing the close in age exemptions altogether, would impair
the section 7 right even more severely; setting the age at ten or twelve
would be grossly inadequate to the objective of protecting young people;
and the exact choice of an age (fourteen, fifteen, sixteen) is no doubt with-
in the margin of appreciation that the Supreme Court of Canada will
grant at the minimal impairment step of the Oakes test.65 Finally, it is
likely that, with the assistance of social science evidence, the government
could show that the salutary effects of the overbroad law in protecting
young persons from premature sexual activity would exceed the deleteri-
ous effects on the section 7 liberty interests. These effects are, according
to the approach in Bedford, not relevant to the section 7 overbreadth
claim but can be considered under section 1.
In Bedford itself, the Court suggested this kind of approach with re-
spect to the applicants claim that the living on the avails offence was
overbroad because it applied to individuals who were not exploitative or
parasitic of prostitutes. The government resisted this argument on the
ground that the law had to be drawn broadly because of evidentiary diffi-
culties in distinguishing between those who are and those who are not ex-
ploitative or parasitic; some degree of overbreadth was unavoidable if the
law was to serve its purpose. The Court held that this issue was to be con-
sidered not as part of the section 7 overbreadth analysis, but as part of the
question whether an overbroad law could be justified under section 1: en-
forcement practicality is one way the government may justify an over-
broad law under s. 1 of the Charter.66 Similarly, the Court said that the
negative effect of a grossly disproportionate law might be justified under
section 1, depending on the evidence.67
64 As Justice Cory once said, [o]verbroad legislation which infringes s. 7 of the Charter
would appear to be incapable of passing the minimal impairment branch of the s. 1
analysis. Heywood, supra note 42 at 802803.
65 The general age of consent was fourteen until 2008: see Stewart, Sexual Offences, supra
note 62, ch 4:100.
66 Bedford, supra note 1 at para 144. When the Court reached the section 1 stage, it re-
jected the argument because the law went beyond those who might justifiably be swept
in on account of evidentiary difficulties to include clearly non-exploitative relation-
ships, such as receptionists or accountants who work with prostitutes (ibid at para
162). So Bedford should not be taken as holding that avoiding these evidentiary difficul-
ties could never justify an overbroad law.
67 Ibid at para 125.
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But just as it is harder to see how the individualized approach to arbi-
trariness is supposed to work, so too is it harder to see how an arbitrary
law can be justified even under the new approach. At the section 1 stage,
if it is indeed the case that the effects of the law in general have no con-
nection with its objectives, then it surely cannot survive the rational con-
nection step of the proportionality test.68 But if arbitrariness can be estab-
lished by an effect on one person, without consideration of the effects of
the law in general, then it might still be open to the government to argue
along the same lines as the justification of an overbroad law.
On the new approach, it will still be very difficult, if not impossible, for
the government to justify a grossly disproportionate law. In assessing
gross disproportionality, the Court is indifferent to the question whether
the law achieves its objectives and to the social benefits that might be
achieved,69 but asks whether the effect on individual section 7 interests
are so severe as to be totally out of sync with those objectives or so dra-
conian as to be entirely outside the norms accepted in our free and dem-
ocratic society.70 Again, an effect on one person is sufficient to establish
the section 7 violation.71 The Court gives the hypothetical example of a
law with the purpose of keeping the streets clean that imposes a sentence
of life imprisonment for spitting on the sidewalk.72 In principle such a
grossly disproportionate law might be justified under section 1. At that
point the government would be permitted to show the pressing and sub-
stantial objective that required a grossly disproportionate law and might
well be able to show that it was rationally connected (it is reasonable to
assume that harsh penalties would deter spitting) and possibly even min-
imally impairing (perhaps no milder penalty could achieve that purpose).
It should not be assumed that the law would automatically fail the final
step of the proportionality test because the considerations at play are dif-
ferent: under section 7, the court considers the impact of the law on indi-
viduals without regard to social interests, while under section 1, the court
compares the salutary effects of the law in achieving its objectives with
the deleterious effects of the law on life, liberty, or security. Nevertheless,
it is hard to imagine that a court would accept that a law could be justi-
68 See Chaoulli, supra note 22 at para 155.
69 See Bedford, supra note 1 at para 121.
70 Ibid at para 120.
71 See ibid at para 123.
72 Ibid at para 120. Such a law would also violate the section 12 right against cruel and
unusual punishment or treatment and, because grossly disproportionate in the section
12 sense, could not be justified under section 1. Compare R v Nur, 2015 SCC 15 at para
118, affg 2013 ONCA 677, 303 CCC (3d) 474; R v Michael, 2014 ONCJ 360 at para 116,
314 CCC (3d) 180. A more telling example for section 7 purposes would be a law that af-
fects someones life, liberty or security other than by punishment.
BEDFORD AND THE STRUCTURE OF SECTION 7 593
fied by its social benefits if its impact, even on only one particular individ-
ual, was so draconian as to fall entirely outside the norms of Canadian le-
gal and political culture. Perfectly clean streets could not justify even the
threat of even one life sentence.
In Bedford, only the three principles of fundamental justice relating to
overbreadth, arbitrariness, and gross disproportionality were at issue.
The case did not involve other recognized principles of fundamental jus-
tice, such as the right to procedural fairness or the principles relating to
constitutionally required fault in penal law. Nevertheless, Bedford raises
the intriguing and troubling possibility that violations of such principles
of fundamental justice might also be more readily justifiable under section
1.73 Further exploration of that possibility is beyond the scope of this
comment, but it is at least as troubling as the thought that an arbitrary or
grossly disproportionate law might be justifiable.
Conclusion
Writing before the Supreme Court of Canadas decision in Bedford,
Alana Klein argued that the three principles of fundamental justice at is-
sue in that case, taken together, could be seen as constituting a right to
proportionate government action.74 She suggested that whenever a law
affected life, liberty, or security of the person, this right required courts to
engage in empirical analysis of the instrumental or means-ends effective-
ness of the law in achieving its purpose, so that the court could assess
whether the laws impact on section 7 interests was proportionate to the
problem the law was intended to address. Bedford clarifies the differences
among the three principles of fundamental justice that together constitute
the suggested right to proportionate legislation, but it also suggests a dif-
ferent understanding of the place of proportionality. According to Bedford,
determining whether the law violates norms against overbreadth, arbi-
trariness, and gross disproportionality apparently does not require any
empirical analysis of the effectiveness of the law; instead, the Court asks
whether the effect of the law on the section 7 interests of any one person
is overbroad, arbitrary, or grossly disproportionate in light of the purposes
the law is intended to serve. I have pointed to some difficulties in the ap-
plication of this individualized approach to these norms. A further ques-
tion is whether what Klein called the right to proportionate lawmaking75
73 As Kent Roach has long, though in my view unwisely, urged. See e.g. Kent Roach,
Mind the Gap: Canadas Different Criminal and Constitutional Standards of Fault
(2011) 61:4 UTLJ 545 at 57476.
74 Supra note 24 at para 1.
75 Ibid at para 37.
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is now not a right at all but rather an aspect of section 1 proportionality,
where empirical questions about the relationship between a restriction on
a section 7 right and the objective of that restriction once again become
relevant. If this analysis is correct, Bedford has fundamentally altered the
structural relationship between section 7 and section 1 of the Charter, at
least with respect to the norms against overbreadth, arbitrariness, and
gross disproportionality, but perhaps more broadly. If that is so, Bedford
has opened up the troubling possibility that violations of section 7 may be
easier to justify than they have ever been.
