Doubling Down on Inconsistency: R v JJ and the Principle Against Overbroad Laws
Sterling Mancuso, 3L, Executive Editor of Forum Conveniens
shankar s. from Dubai, united arab emirates, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons
On June 30, 2022, the Supreme Court of Canada (SCC) released its long-awaited judgment in R v JJ, 2022 SCC 28 (CanLII) (JJ). In a 6:3 split, the Court upheld a series of amendments to the Criminal Code from 2018, tightening the circumstances wherein a sexual assault complainant’s “records” will be admissible at trial, and granting complainants a right to participate in admissibility hearings. Since its release, JJ has elicited strong reactions, from the laudatory (“today’s decision is an important milestone in the development of survivors’ rights in criminal trials”) to the condemnatory (“the [C]ourt failed in its basic duty to preserve fair trials and to prevent wrongful convictions”). Today, however, I wish to focus on one aspect of JJ that has not yet attracted significant attention: the SCC’s offhanded decision to double down on two inconsistent definitions of the constitutional right against overbroad laws.
While somewhat tangential to the disposition of JJ, the Court’s inconsistent definitions of overbreadth have serious implications for matters as diverse as vaccine mandates, highway traffic regulations, and the future of public healthcare. Overbreadth’s history as a principle of fundamental justice under section 7 of the Charter demonstrates a see-saw contest between a narrow and loose conceptualization, which respectively prioritize individual rights or deference to Parliament. The SCC has alternated between both conceptions of overbreadth in recent judgments, without justifying their choice. Now, in JJ, the Court has doubled down on the inconsistency, by casually using both definitions of overbreadth, without even acknowledging their basic incompatibility. In this blog post, I trace the winding history of overbreadth and argue that JJ injects unfortunate uncertainty into a constitutional principle with wide-reaching ramifications.
A Brief History of Overbreadth: From Loose to Narrow
Section 7 of the Canadian Charter of Rights and Freedoms states that “everyone 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.” In Reference re BC Motor Vehicle Act, [1985] 2 SCR 486 (CanLII), the SCC acknowledged that the Charter’s framers intended for s. 7 to only safeguard procedural principles, such as the right to a fair trial. Nevertheless, the Court held that the phrase “principles of fundamental justice” also includes substantive principles. For example, the Court declared that s. 7’s “fundamental justice” requires all criminal offences to include mens rea. This holding opened the door to identifying a wide variety of substantive principles of fundamental justice, including the principle against overbroad laws.
In R v Heywood, [1994] 3 SCR 761 (CanLII) (Heywood), the SCC considered a challenge to mobility restrictions for convicted sex offenders. At the time, s. 179(1)(b) of the Criminal Code prohibited sex offenders from “loitering in or near a school ground, playground, public park or bathing area.” Writing for a majority, Cory J held that it is a principle of fundamental justice that laws cannot be overbroad. In concrete terms, this meant that “[i]f the state, in pursuing a legitimate objective, uses means which are broader than necessary to accomplish that objective, the principles of fundamental justice will be violated…” (Heywood at 792-793). In the case at hand, the Court identified the purpose of s. 179(1)(b) as protecting children from sexual offences. Cory J then found that the law overshot its purpose, by prohibiting all sex offenders, including those with no history of aggression towards children, from spending time in any park, even when no children are present. Accordingly, the law was overbroad, and the SCC declared s. 179(1)(b) of the Code to be unconstitutional.
While Heywood first introduced the principle against overbreadth, the Court did not define it with particular precision. Indeed, two esteemed scholars of s. 7 have confidently interpreted Heywood as supporting either a loose or narrow conception of overbreadth. On the one hand, Colton Fehr argues in “Rethinking the Instrumental Rationality Principles of Fundamental Justice” that Heywood tolerated a reasonable degree of overshoot between a law’s purpose and its effects on some people. On the other hand, UofT’s own Hamish Stewart submits that Heywood stood for an extremely narrow standard, only requiring proof that a law effected a single individual in a manner unconnected to the law’s object [1]. As we shall see, despite attempts from the SCC to settle the matter, this fuzziness from Heywood on overbreadth’s strictness continues to bedevil the jurisprudence straight through to JJ.
In the first twenty years following Heywood, the SCC tended to present overbreadth in its loose sense. R v Clay, 2003 SCC 75 (CanLII) (Clay) is a good example. In this case, the Court held that criminalizing marijuana possession is not overbroad to the purpose of preventing harm to users. In doing so, the Court explicitly defined overbreadth in its loose sense, only applying when the effects of a law are “grossly disproportionate” to its purpose (Clay at para 38). The SCC justified this understanding of overbreadth as showing appropriate deference to the legislature; a stricter standard would usurp Parliament’s policymaking role (Clay at paras 38-40). However, a decade later, the Supreme Court see-sawed back to a strictly narrow definition of overbreadth in two unanimous, landmark judgments: Canada v Bedford, 2013 SCC 72 (CanLII) (Bedford), and Carter v Canada, 2015 SCC 5 (CanLII) (Carter). These two decisions were not at all shy in eschewing deference and defining overbreadth in its narrowest sense.
In Bedford, the plaintiffs challenged various Criminal Code provisions regarding prostitution for violating s. 7 of the Charter. The plaintiffs argued that these provisions put sex workers’ safety at risk more than necessary to achieve the legislative purpose. Hence, they alleged the law was unconstitutionally overbroad. In a unanimous judgment by McLachlin CJ, the SCC acknowledged that its prior cases were inconsistent, as they seemingly endorsed both the loose and narrow conceptions of overbreadth (Bedford at paras 113-118). To settle the debate, the Court declared that “[an] overbroad… effect on one person is sufficient to establish a breach of s. 7” (Bedford at para 123, emphasis added). The Court reasoned that any broader standard would require claimants to prove that an infringement of their rights is not justified, which reverses the principle that the state must justify rights infringements under s. 1 of the Charter (Bedford at para 127). Demonstrating its apparent sincerity, the Court unanimously reiterated this perfectly narrow standard two years later in Carter, at para 80. Using this narrow conception of overbreadth, the Court struck down the crimes of living on the avails of prostitution (Bedford at para 140) and aiding or abetting a person to commit suicide (Carter at para 5).
Glossing Over Inconsistency: Moriarty and Safarzadeh-Markhali
The Bedford/Carter individualized standard of overbreadth was immediately controversial. Indeed, in R v Michaud, 2015 ONCA 585 (CanLII) (Michaud), the Court of Appeal for Ontario openly criticized the SCC for adopting such a low standard. Writing for the panel, Lauwers JA noted that a perfectly narrow understanding of overbreadth renders all bright line rules unconstitutional, as inevitably someone will be caught on the wrong side of the line (Michaud at para 148). Demonstrating this principle, the Court reluctantly held that a requirement for truck drivers to install speed limiters set to a 105 km/h maximum is overbroad to the objective of highway safety, as occasionally it may be safer to drive faster. While clearest with bright line rules, the narrow approach to overbreadth shows little respect to the legislature more generally, requiring courts to second-guess whether Parliament perfectly matched its means and ends. This approach may maximize individual life, liberty, and security, but it hinders the state in achieving broader societal aims. Recognizing this, Lauwers JA upheld the impugned regulation under s. 1 of the Charter, arguing that Bedford’s conception of overbreadth is “problematic” (Michaud at para 146).
While Bedford and Carter purported to definitively settle the meaning of overbreadth, the SCC almost immediately began to see-saw back again. The Court has not explicitly revisited the perfectly narrow standard, but some of its recent judgments only make sense using a looser conception of overbreadth. Alas, this implicit backtracking has mostly served to muddy the waters, leading to inconsistency and confusion. Two cases clearly illustrate this regrettable trend: R v Moriarty, 2015 SCC 55 (CanLII) (Moriarty) and R v Safarzadeh-Markhali, 2016 SCC 14 (CanLII) (Safarzadeh-Markhali).
Moriarity concerned a s. 7 challenge to the court martial system. The defendants argued that requiring members of the military to stand trial before military tribunals for ordinary civilian crimes overshot the purpose of having a separate military justice system. The SCC started its judgment by citing the narrow definition of overbreadth from Bedford. However, the Court concluded its analysis by asking “whether there is a rational connection between [the law’s purpose and effects]” (Moriarty at para 46). The language of “rational connection” was completely absent from Bedford. “Rational connection” evokes the looser, more deferential approach from Clay, contrary to the strict tests applied in Bedford, Carter, and Michaud. Unsurprisingly, using the looser standard, the SCC found that the military justice system was not overbroad, as it is “rationally connected to the maintenance of discipline, efficiency and morale” (Moriarty at para 56).
Safarzadeh-Markhali is an even more blatant example of the SCC reciting but not following the Bedford/Carter definition of overbreadth. In this case, the accused challenged certain sentencing provisions of the Criminal Code, which limited enhanced credit for individuals subject to pre-trial detention. Unlike Moriarty, the SCC accepted the overbreadth argument and struck the law in question. But like Moriarty, the Court muddied the jurisprudential waters, and see-sawed between the loose and narrow definitions of overbreadth within the same judgment. On the one hand, the Court cited to the paragraphs in Bedford defining overbreadth. Yet, in the same breath, the Court summarized overbreadth as requiring that “the law must not go further than reasonably necessary to achieve its legislative goals” (Safarzadeh-Markhali at para 50, emphasis added). This reference to “reasonable necessity” is blatantly contrary to Bedford, which required a perfect fit between means and ends. It may be reasonable for a law applying to all Canadians to limit one or two people’s liberty more than necessary; such a law would pass “reasonable necessity,” but fail Bedford. But the Court did not seem to realize the inconsistency. It is fair to say that with Moriarty and Safarzadeh-Markhali, the SCC left the doctrine of overbreadth more confused than ever
The JJ Double-Down
Reacting to Safarzadeh-Markhali, some scholars reasoned that the Supreme Court simply made an “inadvertent mistake” in simultaneously averring to both the loose and the narrow conceptions of overbreadth [2]. Perhaps it is comforting for us to think that even the justices of the Supreme Court can make simple mistakes from time to time. But it should be discomforting to see the Court repeat the same mistake, after having it pointed out to them. Unfortunately, this is exactly what the Court did in JJ.
The overbreadth challenge in JJ was, in all candour, a small piece of the wider constitutional offensive. As seen in their factums, the parties focused more on the right to a fair trial under s. 11(d) of the Charter, as well the principle of fundamental justice of full answer and defence. Nevertheless, the SCC considered whether the effects of requiring defendants to disclose a sexual assault complainant’s “records” in advance of an admissibility hearing overshot the purpose of protecting complainants from harmful myths and stereotypes. The majority held that it did not. However, in so doing, the Court repeated the exact same “mistake” it made in Safarzadeh-Markhali—reciting two incompatible definitions of overbreadth in the same breath. First, the Court defined overbreadth with reference to Bedford, explaining that a law is overbroad if it captures “some” conduct which bears no relation to its purpose (JJ at para 136). JJ cites paragraph 112 of Bedford for this proposition, which is one paragraph before the Bedford court clarified that a law is overbroad if it effects a single person more than necessary. Nevertheless, JJ did not actually apply Bedford. Citing to Safarzadeh-Markhali, the majority upheld the impugned law “because it does not go further than is reasonably necessary to achieve [its purpose]” (JJ at para 139, emphasis added).
While the SCC can be forgiven for an occasional, offhanded error, repetition must be seen as deliberate, or else an act of gross negligence. If I may be excused for speculation, I hypothesize that the SCC’s decision in JJ to double down on two inconsistent definitions of overbreadth reflects an attempt to paper over divisions between the justices. Only two of the judges from Bedford sit on the SCC today. Cases such as Michaud demonstrate the vast, possibly unintended scope of the Bedford requirement of a perfect fit between purpose and effect. The newer justices on the Court may feel less attachment to Bedford, and some may wish to walk back the interpretation of fundamental justice. Others may feel an attachment to precedent, and consider themselves bound by strict overbreadth. As such, we end up with a very Canadian compromise between two possible definitions: double down by stating both, never mind the inconsistency.
The Future of Fundamental Justice
JJ, with its four sets of opinions, stretches over 400 paragraphs in length. Of these, perhaps a dozen can be said to discuss the overbreadth principle. It therefore might seem unlikely that the case will be remembered for its contribution to the law of overbreadth. Nevertheless, the decision to double down on inconsistency is unwelcome, and unnecessarily perpetuates doctrinal uncertainty. The stakes here should not be underestimated. Whether overbreadth is strict or narrow will have huge impacts on Canadian society,
Two ongoing court challenges demonstrate the real-world relevance of overbreadth. In Cambie Surgeries Corporation v British Columbia, 2022 BCCA 245 (CanLII)—a case likely to go to the SCC—the plaintiffs allege that the prohibition on private healthcare is overbroad to its legislative purpose. Similarly, challengers to vaccine passports are alleging a violation of the principle against overbroad laws (Maddock v British Columbia, 2022 BCSC 1605 (CanLII)). Both lawsuits will have a far greater chance of succeeding if they only need to prove that the impugned laws effect a single person more than necessary to achieve the legislative purpose. Conversely, courts are less likely to find that a legislature’s response to a complex, multifaceted challenge (like keeping people healthy) goes farther than “reasonably necessary.” With luck, the Supreme Court will soon make up its own mind between the two definitions, and not triple down on inconsistency in its next judgment on overbreadth.
[1] Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms, 2nd ed (Toronto: Irwin Law, 2019) at 154.
[2] Colton Fehr, Constitutionalizing Criminal Law, (Vancouver: UBC Press, 2022) at 72.