Section 7 of the Charter of Rights and Freedoms

The Law

Section 7 of the Charter provides that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.[1]

Determining whether there has been a breach of section 7 involves a two part analysis. Courts considering potential section 7 violations must ask:

1. (1) Whether there is a deprivation of the right to life, liberty, or security of the person, and
2. (2) If so, whether the deprivation is in accordance with the principles of fundamental justice.

Application

Section 7, like many other Charter provisions, has a broad application: “s. 7 of the Charter… guarantees fundamental justice to ‘everyone,’ not only Canadian citizens.” [2] Persons not legally in Canada, participants in immigration proceedings, and individuals making refugee claims may all benefit from the application of section 7.[3] A corporation, although a legal person, cannot generally benefit from the protection of section 7. Corporations charged with criminal offences, however, are able to claim that the legislation creating the offence is void because it offends section 7.[4] If such an argument were successful it would relieve the corporation of criminal responsibility.

Life, Liberty, and Security of the Person

The Supreme Court of Canada has emphasized that life, liberty, and security of the person are separate and discreet rights, “each of which must be given independent significance by the Court.”[5] An applicant before a court may argue that any or all of these rights have been infringed.

Life

Of the three rights, the right to life has produced the least discussion, perhaps because it is a right that few, if any, state actions explicitly interfere with. However, the Supreme Court has commented on the interaction between the right to security of the person and the sanctity of life in the assisted suicide context, stating that security of the person cannot be said to encompass the right to end one’s own life.[6]

Liberty

The liberty interest guaranteed by section 7 of the Charter has produced considerably more debate and litigation. At first blush, the right to liberty includes freedom from physical constraint; section 7 therefore mandates that when the state attempts to interfere with a person’s physical freedom, the action must be in accordance with the principles of fundamental justice. This mandate has had a significant effect on Canadian criminal law. For example, in a 1994 decision the Supreme Court of Canada declared a “vagrancy” provision of the Criminal Code unconstitutional and of no force or effect. The provision violated the right to liberty guaranteed in section 8 of the Charter and was not in accordance with the principles of fundamental justice.[7]

The right to liberty also extends to an individual’s right to make fundamental personal decisions, including parents’ right to make fundamental decisions regarding their children.[8] However, the scope of the right is limited by the more specific liberties guaranteed elsewhere in the Charter. For example, section 6 of the Charter protects mobility rights, and section 2 protects freedom of the press, expression, and religion.

Security of the Person

The right to security of the person has also impacted and shaped Canadian law. For example, in R. v. Morgentaler, the Supreme Court of Canada found that provisions criminalizing and limiting access to abortion threatened the health and well-being of pregnant women, therefore depriving them of security of the person.[9]

The Supreme Court of Canada has also found that, in certain situations, not having access to counsel will intrude upon the security of the person. In New Brunswick v. G.(J.),[10] a young mother claimed that because she did not have access to legal counsel, a child custody hearing infringed her section 7 right to security of the person. The Supreme Court of Canada agreed and held that a person’s psychological security could be infringed if he/she was denied access to legal counsel in complex, state-initiated proceedings.

The Principles of Fundamental Justice

Section 7 includes an internal balancing mechanism: individuals may be deprived of their right to life, liberty, or security of the person insofar as that deprivation is in accordance with the principles of fundamental justice. For example, sentencing convicted criminals to jail is a clear infringement of their right to liberty. Imprisonment is justified, however, as long as it consistent with the principles of fundamental justice. The pressing question is: what qualifies as a principle of fundamental justice?

FONT size=3>The principles of fundamental justice are “the basic tenets of our legal system,” and have both procedural and substantive dimensions.[11] In order to qualify as a principle of fundamental justice, a principle must fulfill the following criteria:

1. (1) The principle must be a legal principle.
2. (2) The principle must be vital or fundamental to societal notions of justice.
3. (3) The principle must be capable of being identified with some precision.[12]

A clearer understanding of what constitutes a principle of fundamental justice may be arrived at by considering what the courts have and have not recognized as principles of fundamental justice.

The courts have established that the following are principles of fundamental justice: the right to silence[13]; the imperative that laws not be arbitrary or overly vague[14]; the right to full and proper disclosure[15]; and the right against self-incrimination[16]. While some of these principles (such as disclosure rights) are clearly procedural, others impose more substantive obligations on the state.

The courts have rejected the following as principles of fundamental justice: that laws and proceedings affecting children must be in their best interests[17]; and that harm be a required aspect of criminal offences.[18] The Supreme Court of Canada rejected the best interests principle on the basis that it was neither fundamental to societal notions of justice nor sufficiently precise. The harm principle was found not to meet any of the three requirements for a principle of fundamental justice.

Conclusion

The contexts in which section 7 has been invoked are varied. The cases include issues of medical consent, the constitutional right to legal aid, the criminalization of marijuana, and access to private health care, to a name a few. More so than any other provision in the Charter, section 7 has proven to be broad in both its wording and application, and a prolific source of litigation.

Contributed by: Daina Young

October 1, 2007

Sources

1. B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 (CanLII).
2. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
3. Canadian Foundation for Children, Youth and the Law v. Canada, [2004] 1 S.C.R. 76 (CanLII).
4. Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 (CanLII).
5. Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (CanLII).
6. New Brunswick v. G.(J.), [1999] 3 S.C.R. 46 (CanLII).
7. Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1028 (CanLII).
8. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422 (CanLII).
9. United States v. Ferras, (2004) 117 C.RR. (2d) 183 (Ont. C.A.); leave to appeal allowed (2004) and affirmed (2004), 118 C.R.R. (2d) 376 (S.C.C.) (CanLII).
10. Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 S.C.R. 486 (CanLII).
11. Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 (CanLII).
12. R. v. Hebert (1990) 57 C.C.C. (3d) 1 (S.C.C.); R. v. Broyles, [1991] 3 S.C.R. 595 (CanLII).
13. R. v. Heywood, [1994] 3 S.C.R. 761.
14. R. v. Malmo-Levine [2003] 3 S.C.R. 571 (CanLII).
15. R. v. Morgentaler, [1988] 1 S.C.R. 30 (CanLII).
16. R. v. P. (M.B.) (1994), 89 C.C.C. (3d) 289 (S.C.C.) (CanLII).
17. R. v. Stinchcombe, [1991] 3 S.C.R. 326 (CanLII)