II. VAGUENESS, OVERBREADTH & STRICT CONSTRUCTION
VAGUENESS & OVERBREADTH:
A. American Doctrine of Void for Vagueness
The American Doctrine of Void for Vagueness very simply follows that it is unconstitutional if something is void for vagueness (Collander v. Lawrence (1983)). People must be able to understand what they are being charged with.
B. Canadian Doctrine of Void for Vagueness
The Canadian Doctrine of Void for Vagueness was articulated in the Prostitution Reference (1990). The ratio of this case followed that if something is too vague, it runs contrary to principles of fundamental justice found in s.7 of the Charter. Nullem crimen sine lege, nulla poene sine lege – there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The Void for Vagueness Doctrine is founded on the rule of law, i.e. fair notice. There is a difference between fair notice and formal notice. Under CC19, ignorance of the law by a person who commits an offence is no defense. Gonthier J. summarizes vagueness as follows: A law is vague if it so lacks in precision as not to give guidance to legal debate. A law that is too vague cannot be prescribed by law.
R. v. Nova Scotia Pharmaceutical Society (1992) SCC:
12 accused were charged with conspiracy to prevent or lessen competition unduly, contrary to s.45 of the Competition Act. NSSC quashed the charge on the basis that the term “unduly” made the law too vague. Gonthier J. summarized that there is a “relatively high threshold” for a law being declared vague and stated the following principles for determining vagueness:
1. It is a principle of fundamental justice that a law not be too vague.
2. The Doctrine of Vagueness is founded on the rule of law foundational principle, particularly as it relates to fair notice and limitation of enforcement discretion.
3. Factors in evaluating vagueness include:
a. the need for flexibility and the interpretive role of the Courts.
b. the impossibility of achieving absolute certainty.
c. many different judicial interpretations of a given disposition may exist.
C. Canadian Doctrine of Overbreadth
Overbreadth involves a law that’s means are far more sweeping than its objective. R. v. Nova Scotia Pharmaceutical Society also treated the subject of overbreadth and came to the determination that overbreadth always relates to a limitation under the Charter. In evaluating overbreadth, one is to consider the means chosen by the state in relation to its purposes. Overbreadth occurs when a state has employed means that are far broader than necessary to accomplish an objective.
R. v. Heywood (1994) SCC
Heywood was a convicted pedophile who was later found “loitering at or near a school ground, playground, public park or bathing area” contrary to CC179.1.b. He was observed carrying a camera with a telephoto lens and pictures in his possession were later found which showed the crotch areas of young girls. The trial judge found the accused guilty and noted that this CC section, though contrary to s.7 and 11.d of the Charter, was justified under s.1. Cory J. found that the pith and substance of the CC section was to protect young children from becoming victims of sexual assault and that parks are a prime place for this activity to take place. Is this limitation in accordance with the principles of fundamental justice? Cory J. went on to say that it “applies without prior notice to the accused, to too many places, to too many people, for an indefinite period with no possibility of review.” This was the basis of his finding that this section of the CC was overbroad and this failed the minimal impairment arm of the Oakes Test. Gonthier J., writing for the minority, proposed an interpretation that would eliminate the possibility of overbreadth. He said “The affected persons’ history of offending, the uncertainties prevalent in treating offenders and a desire to disrupt the cycle of re-offending justify what is in effect a minor intrusion which does not breach the principles of fundamental justice.” “Prohibiting lingering or hanging around about the enumerated areas for a malevolent or ulterior purpose related to one of the predicate offences thus survives Charter scrutiny.”
Note: Parliament replaced this section with a much narrower definition under the new CC161, which narrows it to children under 14 and looks at ulterior purpose. This amendment to the CC shows the dialogue between the courts and legislatures.
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