This paper explores the conditions under which a criminal law may be said to be arbitrary and, thus, constitutionally infirm. A finding of arbitrariness is a profound condemnation. Though the doctrine has re-emerged in recent Canadian jurisprudence, it remains largely unexplored. Some cases purport to apply a stringent test, requiring that the law fail completely to establish a logical link between, say, its goals and means. Other cases hint at a broader approach. The broader model can be satisfied in a number of situations: where a law is radically under-inclusive; where it fails to establish that particular harms are sufficiently distinct to warrant different legal treatment; or where it betrays illegitimate state goals. All of those situations present fatal challenges to validity. Recognizing them would develop a concept of arbitrariness that better accords with fundamental justice and respect for individual liberty.
We look forward to welcoming you on July 3-5, 2023 for our Annual Conference entitled "Islands and Ocean: Public Law in a Plural World." The conference will take place at the Victoria University of Wellington, in New Zealand. We will be announcing more details about the conference soon, including financial support to early career and global south scholars!