Canada (Attorney General) v. Bedford, 2012 ONCA ... - York University

Page: 31application judge was asked to evaluate the infringements against the principlesof arbitrariness, overbreadth, and gross disproportionality.[68] The principles of fundamental justice at issue in this case were notconsidered in 1990 because they had not yet been fully articulated. Arbitrarinessand overbreadth were only identified as principles of fundamental justice in 1993and 1994, respectively: Rodriguez v. British Columbia (A.G.), [1993] 3 S.C.R.519; R. v. Heywood, [1994] 3 S.C.R. 761. Gross disproportionality emerged as aprinciple of fundamental justice a decade later: R. v. Malmo-Levine; R. v. Caine,2003 SCC 74, [2003] 3 S.C.R. 571.[69] Henry and Prokofiew stand for the proposition that the actual words of theSupreme Court do not bind lower courts when those words are sufficientlytangential to the disposition of the case. Surely, then, the silence of the SupremeCourt on “independent interests ... which must be given independentsignificance” (Morgentaler, at p. 52) cannot preclude future consideration ofthose interests by a court of first instance.[70] It cannot be said that the Prostitution Reference decided the substantives. 7 issues before the application judge in this case. Therefore, stare decisis didnot apply, and the application judge did not err by conducting her own analysisand coming to her own conclusions.