Simon's Legal Resources

Charter - s.7 Arbitrariness

. Cycle Toronto v. Ontario (Attorney General)

In Cycle Toronto v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown appeal, this brought against the granting of a JR which found that requiring "the removal of bicycle lanes from three downtown Toronto streets" under HTA s.195.6 ['Existing lanes in the City of Toronto, direction to restore'] and related regulations breached Charter s.7 ['life, liberty and security of the person'].

Here the court thoughtfully considers the Charter s.7 concept of 'arbitrariness', contrasting it with 'instrumental rationality':

a. The nature of arbitrariness

[48] It is common to impugn decisions with which one disagrees as arbitrary, but the force of this criticism depends on what is meant by arbitrariness. At its worst, arbitrariness connotes autocratic, capricious rule divorced from reason – in short, a wholesale departure from the most basic requirements of the rule of law. The principles of fundamental justice are a bulwark against this sort of arbitrariness in the context of executive action, but their protection is unlikely to be required against legislation: Canadian legislatures rarely, if ever, pass legislation that is arbitrary in this sense. They may well pass legislation that engenders significant political opposition, but the law is not arbitrary on this account.

[49] The rule against arbitrariness has been described as a principle of “instrumental rationality”, a concept that is concerned not with the normative desirability of the legislation’s purpose but with the means chosen to achieve that purpose: see e.g., Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 107; Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, 481 D.L.R. (4th) 581, at para. 124 (“CCR”). Instrumental rationality entails a “means-ends assessment”: CCR, at para. 124.

[50] This idea is sometimes expressed in terms of the relationship between purpose and effect, or purpose and deprivation. In Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 83, the court stated:

The principle of fundamental justice that forbids arbitrariness targets the situation where there is no rational connection between the object of the law and the limit it imposes on life, liberty or security of the person: Bedford, at para. 111. An arbitrary law is one that is not capable of fulfilling its objectives. It exacts a constitutional price in terms of rights, without furthering the public good that is said to be the object of the law.

[51] However, it is clear from the case law that a law is not arbitrary if there is a rational connection between the purpose of the law and the means chosen to achieve that purpose. Thus, in Carter, at para. 84, the court concluded that legislation prohibiting assisted suicide was not arbitrary:

The object of the prohibition on physician-assisted dying is to protect the vulnerable from ending their life in times of weakness. A total ban on assisted suicide clearly helps achieve this object. Therefore, individuals’ rights are not limited arbitrarily.

[52] Arbitrariness speaks to the absence of any connection between the purpose of a law and the means chosen to achieve that purpose: Bedford, at paras. 111, 119; Carter, at para. 83. As the court put it in Bedford, at para. 119, this standard is “not easily met”. After all, legislatures do not pass laws for no reason. And having chosen to legislate, they are unlikely to do so in a manner that is not rationally capable of at least contributing to achieving their purpose.

[53] I emphasize this point in order to highlight what it means to conclude that legislation is arbitrary. It means that the legislature has taken steps that do not rationally contribute to achieving its goal at all – not even in a small way. The implication of this conclusion is that the legislature has failed utterly in its task.

[54] A failure of rationality goes far beyond mere disagreement as to the efficacy of the law. As the court states in Bedford, arbitrariness “do[es] not look to how well the law achieves its object”: at para. 123. Disagreement concerning the efficacy of a law may rise to the level of a “legitimate ongoing debate”, but this does not establish irrationality in the requisite sense: Malmo-Levine, at paras. 135-36, 178.

[55] Disagreement and debate invariably accompany changes in legislative policy and must be allowed to play out in the political process. It is not for the court to end the debate by declaring a winner under the banner of arbitrariness. “A legislative policy is not ‘arbitrary’ just because [the court] may disagree with it”: Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, at para. 169, per Binnie & LeBel JJ.

[56] In most cases, instrumental rationality can be established without difficulty. Common sense connections and inferences will normally suffice. The test for arbitrariness under s. 7 is in this way similar to the test for rationality under s. 1 of the Charter. As the court stated in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, in discussing the rational connection requirement under the Oakes test, at para. 48, “[t]he rational connection requirement is aimed at preventing limits being imposed on rights arbitrarily. The government must show that it is reasonable to suppose that the limit may further the goal, not that it will do so.” See also R. v. Lucas, 1998 CanLII 815 (SCC), [1998] 1 S.C.R. 439, at para. 53, citing RJR‑MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at p. 352. Expert evidence may well call into doubt the efficacy of legislation, but as Carter and Malmo-Levine demonstrate, it will rarely establish that legislation is irrational. As noted above, in Carter, the common-sense inference that a criminal prohibition on physician-assisted suicide helped to protect the vulnerable from ending their lives in times of weakness was sufficient to establish a rational connection between purpose and means: at para. 84. And in Malmo-Levine, Parliament’s common-sense conclusion that prohibiting marijuana would deter its use was logical despite evidence that the extent to which a prohibition would deter usage was unclear: at paras. 135-36, 176-78. As the court noted, it has “exercised caution in accepting arguments about the alleged ineffectiveness of legal measures”, and while different considerations may be relevant in Charter analysis, “it remains important that some deference be accorded to Parliament in assessing the utility of its chosen responses to perceived social ills”: at para. 177.

[57] In summary, instrumental rationality does not establish a constitutional means to challenge the wisdom or efficacy of legislation. Law is not arbitrary simply because it is not designed to the satisfaction of expert critics.

. R. v. Robertson

In R. v. Robertson (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here where the defendant argued that "the THC limit [SS: under CCC s.320.14(3) 'Operation while impaired - Operation causing death'] violated s. 7 of the Charter because it could capture drivers who were not actually impaired.".

Here the court considers the Charter s.7 element of arbitrariness:

2. No Arbitrariness

[30] The THC limit is not arbitrary because it is capable of advancing its legislative objectives: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 83. As the trial judge found, the use of THC blood concentration thresholds assists in detecting recent cannabis consumption which, in turn, is closely associated with impairment. This enhanced capacity for detection supports Parliament’s deterrence objective, as the increased likelihood of enforcement discourages individuals from engaging in the prohibited conduct: R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, at p. 655.

. R. v. Kloubakov

In R. v. Kloubakov (SCC, 2025) the Supreme Court of Canada dismissed a criminal appeal, this from an Alberta CA ruling that allowed a Crown appeal against an Alberta QB decision in which "the trial judge held that these offences [SS: 'receiving a material benefit from sexual services and of procuring': CCC 286.2 and 286.3] prohibited the safety measures contemplated in Bedford [SS: Canada (Attorney General) v. Bedford (SCC, 2013)] and therefore infringed s. 7 of the Charter".

Here the court considers the Charter s,7 issue of 'arbitrariness':

[138] A law is arbitrary if “there is no connection between the effect and the object of the law” (Bedford, at para. 98; see also paras. 99-100). A law will be considered arbitrary for the purposes of s. 7 if it imposes limits on life, liberty, or security of the person “that have no connection to [the law’s] purpose” (R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602, at para. 23; P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 47:24; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at para. XII-6.66).