The Constitutional Status of Overbreadth: A Reply to Professor Stewart

Abstract

The Supreme Court’s jurisprudence constitutionalizing overbreadth as a principle of fundamental justice under section 7 of the Charter adopted two understandings of the norm. The first conception operates in a “strict” sense wherein any effect of a law that is disconnected from its objective renders the law overbroad. The second conception applies in a “relaxed” manner by prohibiting any application of a law that overshoots its objective more than reasonably necessary. Hamish Stewart’s recent contribution to the literature agrees with and builds upon my prior argument that the strict version of the norm fails to qualify as a principle of fundamental justice. He nevertheless asserts that the relaxed norm ought to maintain its constitutional status. There are, however, two reasons to question this conclusion. First, the relaxed version is highly indeterminate as what is “reasonably necessary” to meet a legislature’s objective provides no concrete restraint on judges declaring laws violative of the Charter. Second, the relaxed norm does not attract adequate consensus as a principle of fundamental justice. Instead, overbreadth in this form operates as a “gross disproportionality light” that effectively crowds out the more intuitive principle of justice that laws must not impose grossly disproportionate effects.