Void for Vagueness Doctrine (Charter)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1644
Page Categories:	[Constitutional Law]
Citation:	Void for Vagueness Doctrine (Charter), CLNP 1644, <3q>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2021/09/10

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R. v. Levkovic, 2010 ONCA 830 (CanLII)

[86] Vague laws violate the principles of fundamental justice. If a vague law causes or amounts to a deprivation of a person's life, liberty or the security of his or her person, the law offends s. 7 of the Charter. [page19 ]

[87] Vague laws offend two fundamental values of our legal system. They do not provide fair notice of what is prohibited, thus making compliance with the law difficult. Further, they do not provide clear standards for those entrusted with their enforcement to enforce them. As a result, vague laws contribute or lead to arbitrary enforcement.

[88] Several principles emerge from the authorities that have considered complaints of constitutional infringement based on vagueness.

[89] First, merely because a statute is broad and far reaching in its facial scope does not mean that it is unconstitutionally vague. What is crucial is whether a court examining the provision can give sensible meaning to its terms: Prostitution Reference, at p. 1160 S.C.R.

[90] Second, an offence need not be codified in statutory form to survive a vagueness challenge, although statutes may tend to provide greater precision than the ever-evolving common law: United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, [1992] S.C.J. No. 37, at p. 933 S.C.R.

[91] Third, inclusion in a statute of a term that has been the subject of debate and conflicting views as used in predecessor statutes does not render the provision void for vagueness, at least where the legislature has sufficiently delineated the area of risk and the terms of the debate: R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, [1992] S.C.J. No. 67, at p. 657 S.C.R.

...

[98] Overbreadth is a discrete ground upon which a law may be constitutionally unsound. It is related to vagueness because both overbreadth and vagueness emanate from a common source -- a lack of legislative precision in the means used to accomplish [page21 ]the legislative objective: R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, at p. 792 S.C.R.; Lindsay, at para. 16.

[99] Overbreadth refers to a law that restricts liberty more than is necessary to accomplish its purpose. Overbreadth is established only where the adverse effect of the legislation on individuals subject to it is grossly disproportionate to the state interest that the legislation seeks to protect or achieve: Lindsay, at para. 21; Heywood, at p. 792 S.C.R. The "grossly disproportionate" standard accords substantial elbow room to the legislature's assessment of the risk to public safety and the need for the law under siege: Lindsay, at para. 21; Malmo-Levine, at para. 143; Cochrane, at para. 31.

The relevance of prosecutorial and judicial discretion

[100] A claim of unconstitutionality, whether advanced as vagueness, overbreadth or otherwise, is not answered by reliance on prosecutorial or judicial discretion to confine its application: R. v. Hess; R. v. Nguyen, 1990 CanLII 89 (SCC), [1990] 2 S.C.R. 906, [1990] S.C.J. No. 91, at p. 924 S.C.R.; Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61 (CanLII), [2002] 3 S.C.R. 209, [2002] S.C.J. No. 61, at para. 45; R. v. Bain, 1992 CanLII 111 (SCC), [1992] 1 S.C.R. 91, [1992] S.C.J. No. 3, at pp. 103-104 S.C.R.

City of Toronto v. Zanzibar Tavern Inc., 2007 ONCJ 401 (CanLII)

[113] In Canadian Foundation for Children, Youth and the Law v. Canada, 2004 SCC 4 (CanLII), [2004] 1 S.C.R. 76 (S.C.C.), McLachlin C.J.C. held that a law must set an intelligible standard for both citizens and officials who must enforce it:

A law must set an intelligible standard both for the citizens it governs and the officials who must enforce it (at para. 16).

...

[116] Furthermore, in its argument against vagueness the prosecution relies on the analysis used in Club Pro Adult Entertainment Inc. v. Ontario, [2006] O.J. No. 5027 (QL), 154 A.C.W.S. (3d) 64 (S.C.J.O.), where Spies J. concluded at para. 248 of [2006] O.J. No. 5027 (QL), that just because individual inspectors might apply the law differently it does not necessarily mean the statute is invalid unless the statute is so vague that it is incapable of consistent enforcement. Moreover, even if the law was being enforced in an inconsistent way, Spies J. reasoned that this inconsistent enforcement would not make the law unconstitutional when its provisions are not vague [emphasis is mine below]:

The fact that individual inspectors might apply the law differently does not invalidate the statue unless the statute is so vague that it is incapable of consistent enforcement. That is not this case. Furthermore, even if it could be established that the law is being enforced in an inconsistent way, that could not possibly result in a finding that the SFOA is unconstitutional, given that its provisions are not vague. Not every police officer charges every driver stopped for speeding. That fact has no impact on the constitutionality of the Highway Traffic Act, which makes it clear that speeding is an offence.

R. v. Crow, 2007 ABPC 339 (CanLII)

[30] Since this assertion is dependent on a finding that the offence under the Traffic Safety Act is a mens rea offence, I need not address it, except to say that while the Supreme Court held that s. 195.1(1)(c) of the Criminal Code, which made communicating for the purpose of prostitution a crime, while it offended s. 2(b) of the Charter (freedom of expression), and which also was inconsistent with s. 7, it nonetheless met the proportionality test in s. 1 of the Charter, as a reasonable limit to the rights and freedoms expressed in the Charter, as enunciated by the Supreme Court of Canada in R. v. Oakes 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, (1986), 24 C.C.C. (3d) 321 (S.C.C.), and which also was found not to infringe s. 7 on the basis of vagueness, since the ‘void for vagueness doctrine’ is not applied to the words of a statute alone, but in the broader context of judicial interpretations of the meaning of the statutory language, having regard to the Charter and the law in general.

[31] Counsel for the Defendant also submits that fair notice comprises a substantive aspect, and further, that the maxim “ignorance of the law is no excuse” may contradict the rule of law and may be secondary to fair notice, in order, using Counsel’s word, “to comport with the Charter.” For these two propositions, Counsel cites the Supreme Court of Canada judgment in R. v. Nova Scotia Pharmaceutical Society (1992), 1992 CanLII 72 (SCC), 74 C.C.C. (3d) 289. This case was an appeal from a ruling by the Nova Scotia Court of Appeal that allowed an appeal from an order of the Supreme Court of Nova Scotia quashing an indictment under the Combines Investigation Act (Canada).

[32] The charge at the centre of this case was (then) s. 32(1)(c) of the Combines Investigation Act (Canada), which was a mens rea offence. The issues in the case revolved around the question of vagueness, as applied to the elements of the offence, and whether proof of mens rea required more than proof of intent to enter an agreement with the result (to be proven) being a lessening of competition, or, whether the Crown had to prove an ‘unduly lessening’ of competition, hence whether mens rea required proof of a subjective state of mind, or whether it was subject only to an objective test. The trial court held that the offence was void for vagueness, on the issue of mens rea. The Court of Appeal reversed, holding that the impugned provision was not constitutionally vague, and that the indictment did not offend section 7 of the Charter.