The 'Individualistic' Approach to Arbitrariness, Overbreadth, and Gross Disproportionality

Abstract

In Bedford, the Supreme Court of Canada altered the analytical approach with respect to proving infringements of the arbitrariness, overbreadth, and gross disproportionality principles of fundamental justice. As opposed to requiring that the applicant bear the burden of weighing the actual ability of the law to achieve its objective against the overall negative effects of the law on all affected individuals, litigants now need only demonstrate an unconstitutional effect on one person. This “individualistic” approach has subsequently received limited but significant criticism. In this article, I seek to add to these criticisms, but also to defend the Court’s new analytical approach. Although the new approach has rendered the arbitrariness and gross disproportionality principles of no (or at least extremely limited) utility, I maintain that its benefits in terms of social justice far outweigh any doctrinal defects.

Keywords: Principles of Fundamental Justice, Instrumental Rationality, Arbitrariness, Overbreadth, Gross Disproportionality

JEL Classification: K14, K19