Rethinking the Instrumental Rationality Principles of Fundamental Justice

Abstract

In Canada (Attorney General) v. Bedford, the Supreme Court of Canada fundamentally altered its approach to proving breaches of the instrumental rationality principles of fundamental justice. In response, commentators have charged that the Supreme Court’s new “individualistic” approach makes it too easy to prove a breach of the principles of fundamental justice. This is mainly a result of the Supreme Court’s expanded understanding of overbreadth, which now requires only that a law apply in an arbitrary manner to a single person. The problem with the Supreme Court’s new approach, however, is not necessarily with individualizing the analysis. Instead, upon revamping the instrumental rationality principles, the Supreme Court neglected to ask a more basic question: does the new conception of each principle still meet the requirements to qualify as a principle of fundamental justice? Although the arbitrariness and gross disproportionality principles are still integral to fundamental justice, I contend that the individualized conception of overbreadth has inadequate societal consensus to qualify as a principle of fundamental justice.