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.
Our next Annual Conference will take place from July 6-9, 2021. It will be held in a completely novel way as a fully online Conference: ICON•S Mundo.
The Call for Papers for ICON•S Mundo is now closed. Successful applicants have been notified. You can access the preliminary program via the ICON•S HUB.
All panelists had register until June 10, 2021.
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