Friday, May 3, 2013
Void for Vagueness
R. v Levkovic, 2013 SCC 25 deals with the concept of a law being void as too vague: The doctrine against vagueness is founded on two rationales: a law must provide fair notice to citizens and it must limit enforcement discretion. Understood in light of its theoretical foundations, the doctrine against vagueness is a critical component of a society grounded in the rule of law: R. v. Nova Scotia Pharmaceutical Society  2 S.C.R. 606, at pp. 626-27;Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) Since long before the Charter, Canadian criminal law has adhered to the principle of certainty: prohibited conduct must be fixed and knowable in advance: M. Manning and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (4th ed. 2009), at p. 76. As Glanville Williams explained in Criminal Law: The General Part (2nd ed. 1961), at pp. 575-76 (cited in D. Stuart, Canadian Criminal Law: A Treatise (6th ed. 2011), at pp. 20-21):
. . . Nullum crimen sine lege, Nulla poena sine lege ― that there must be no crime or punishment except in accordance with fixed, predetermined law ― this has been regarded by most thinkers as a self-evident principle of justice ever since the French Revolution. The citizen must be able to ascertain beforehand how he stands with regard to the criminal law; otherwise to punish him for breach of that law is purposeless cruelty. . . .
. . . "Law" for this purpose means a body of fixed rules; and it excludes wide discretion even though that discretion be exercised by independent judges. The principle of legality involves rejecting "criminal equity" as a mode of extending the law.
 This does not mean that an individual must know with certainty whether a particular course of conduct will ultimately result in a conviction of the crime that prohibits such conduct. What it does mean is that the essential elements of the crime must be ascertainable in advance. If an accused must wait "until a court decides what the contours and parameters of the offence are then the accused is being treated unfairly and contrary to the principles of fundamental justice": Manning, at pp. 75-76.