Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government. This "Charter" provision provides both substantive and
procedural rights. [" Suresh v. Canada"] It has broad application beyond merely protecting due processin administrative proceedings and in the adjudicative context, and has in certain circumstances touched upon major national policy issues such as entitlement to social assistance [" Gosselin v. Quebec (Attorney General)"] and public health care. [" Chaoulli v. Quebec"] As such, it has proven to be a controversial provision in the "Charter".
There are three types of protection within the section, namely the
right to life, liberty, and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice.
Under the heading of "Legal Rights", the section states:
The wording of section 7 says that it applies to "everyone". This includes all people within Canada including non-citizens. ["
Singh v. Canada" and " Suresh v. Canada"] It does not, however, apply to corporations. [" Irwin Toy v. Quebec"]
Section 7 rights can also be violated by the conduct of a party other than a Canadian government body. The government need only be a participant or complicit in the conduct threatening the right, where the violation must be a reasonabley foreseeable consequence of the government actions. ["
United States v. Burns"]
Section 7, however, does not convey
positive rightsnor does it impose any positive obligations upon the government. ["Gosselin v. Quebec"]
First, there is the right to life, which stands generally as the basic right to be alive. It has had very little legal impact (arguments that the
fetushas a right to life, which would have banned abortion, were dismissed in " Borowski v. Canada (Attorney General)" due to mootness), but life has been thoroughly discussed by the Supreme Court in the 1993 case " Rodriguez v. British Columbia (Attorney General)". In that case, the Court denied that the section 7 right to bodily control could trump the right to life and thereby justify assisted suicide. As the Court wrote, it was a common societal belief that "human life is sacred or inviolable," and therefore security of the person itself could not include a right to suicide; suicide would destroy life and thus be inherently harmful.
Secondly, there is the right to liberty, which protects an individual's freedom to act without physical restraint (i.e.,
imprisonmentwould be inconsistent with liberty unless it is consistent with fundamental justice). However, the right has been extended to include the power to make important personal choices. The court described it as " [touching] the core of what it means to be an autonomous human being blessed with dignityand independence in matters that can be characterized as fundamentally or inherently personal." (" R. v. Clay", 2003) That is, the concept extends beyond physical restraint by the government as it goes to the core of the human experience.
The right to choice is probably an
individual rightonly, as opposed to also being a familyright or a union right. In the 1995 Supreme Court case " B. (R.) v. Children’s Aid Society", in which two parents attempted to block a certain treatment for their child on religious grounds, it was argued that the personal choice aspect of liberty guaranteed family privacy. This argument drew from United Statescase law, but the Supreme Court of Canada pointed out section 7 of the Charter contains individual rights, and hence there cannot be family rights. Still, mindful that there was still choices involved in the family situation, the Supreme Court split on whether liberty rights were infringed. Likewise, in " I.L.W.U. v. The Queen" (1992), the Supreme Court stressed the individual nature of section 7 to deny unions had a right to strike as part of the members' liberty. The Court also stressed that strikes were social-economic matters that did not involve the justice system, and section 7 was concentrated on the justice system.
Various liberties not covered by the section 7 right to liberty include religious liberty and liberty of speech, because these are more specifically guaranteed under section 2, the liberty to vote, as this is more specifically guaranteed by section 3, and the liberty to move within, leave and enter Canada, as this is more specifically guaranteed by section 6. [Hogg, Peter W. "Constitutional Law of Canada." 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, page 980.]
ecurity of the person
Thirdly, there is the right to security of the person, which consists of rights to privacy of the body and its health [Hogg, 981.] and of the right protecting the "psychological integrity" of an individual. That is, the right protects against significant government-inflicted harm (stress) to the mental state of the individual. ("
Blencoe v. B.C. (Human Rights Commission)", 2000)
This right has generated significant case law, as
abortion in Canadawas legalized in " R. v. Morgentaler" (1988) after the Supreme Court found the Therapeutic Abortion Committees breached women's security of person by threatening their health. Some judges also felt control of the body was a right within security of the person, breached by the abortion law. In " Operation Dismantle v. The Queen" (1985) cruise missiletesting was unsuccessfully challenged as violating security of the person for risking nuclear war. In " Chaoulli v. Quebec (Attorney General)" (2005), some Supreme Court justices even considered Quebec's ban on private health careto breach security of the person, since delays in medical treatment could have physical and stressful consequences.
Some people feel economic rights ought to be read into security of the person, as well as section 15 equality rights to make the "Charter" similar to the "
International Covenant on Economic, Social and Cultural Rights". The rationale is that economic rights can relate to a decent standard of livingand can help the civil rights flourish in a liveable environment.Lugtig, Sarah and Debra Parkes, "Where do we go from here?" "Herizons", Spring 2002, Vol. 15 Issue 4, page 14.] There has also been discussion within the Supreme Court and among academics as to whether security of the person guarantees some economic rights. Theoretically, security of the person would be breached if the government limits a person's ability to make an income, by denying welfare, taking away property essential to one's profession, or denying licenses. However, section 7 is primarily concerned with legal rights, so this reading of economic rights is questionable. Many economic issues could also be political questions. [Hogg, 983.]
Principles of fundamental justice
All three rights can be compromised in the cases where the infringing law is in "accordance with the principles of fundamental justice". That is, there are core values within the justice system that must prevail over these rights for the greater good of society. These include
natural justiceand since the 1985 Supreme Court decision " Re B.C. Motor Vehicle Act" they also include substantive guarantees, including rights guaranteed by the other legal rights in the Charter (i.e., rights against unreasonable search and seizure, guaranteed under section 8, and against cruel and unusual punishments, under section 12, are part of fundamental justice under section 7 as well). Other "Principles" are determined by the court and form the basis of the Canadian legal system.
:"it must be a legal principle about which there is sufficient societal consensus that it is fundamental to the way in which the legal system should fairly operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty, or security of the person." ("
R. v. Malmo-Levine", 2003)
The following are some of the well established "Principles of Fundamental Justice".
Laws shall not be arbitrary
It is a principle of fundamental justice that laws should not be arbitrary. ("R. v. Malmo-Levine") That is, the state cannot limit an individual's rights where "it bears no relation to, or is inconsistent with, the objective that lies behind [it] ". ("Rodriguez v. British Columbia (Attorney General)")
Void for Vagueness
The "Principles of Fundamental Justice" require laws to have a clear and understandable interpretation so as to properly define the rule or offence.
This principle is violated if the law does not have clarity enough to create "legal debate". There must be clarity of "purpose", "subject matter", "nature", "prior judicial interpretation", "societal values", and " related provisions". This does not prevent the use of broadly defined terms so long as societal objectives can be gleaned from it. ("
Ontario v. Canadian Pacific Ltd.", 1995)
The "Principles of Fundamental Justice" require that "means" used to achieve a societal purpose or objective must be reasonably necessary.
This principle is violated when the government, in pursuing a "legitimate objective", uses "means" that unnecessarily and disproportionately interfere with an individual's rights. ("
R. v. Heywood")
Requirement of Mens Reas
The "Principles of Fundamental Justice" require that criminal offences that have sentences involving prison must have a
mens reaelement. For more serious crimes such as murder that impose a stigma as part of the conviction, the mental element must be proven on a "subjective" level. (" R. v. Vaillancourt")
hocks the conscience
Canada v. Schmidt" (1987), the Supreme Court found that government decisions to extradite people are bound by section 7. Moreover, it is possible that a potential punishment in the receiving country " shocks the conscience" to the extent that the Canadian government would breach fundamental justice if they extradited people there, and thus put them at risk of something shocking. In determining what would shock the conscience, the Court said some elements of fundamental justice in Canada, such as the presumption of innocence, could be seen as "finicky" and thus irrelevant to extradition. In contrast, the possibility of torturewould be shocking.
Right to silence
R. v. Hebert" the court held that the right to silence was a principle of fundamental justice. Statements of the accused cannot be achieved through police trickery and silence cannot be used to make any inference of guilt.
Moral culpability for youths
R. v. D.B.", 2008 SCC 25 [http://scc.lexum.umontreal.ca/en/2008/2008scc25/2008scc25.html] , the Court held that "young people are entitled to a presumption of diminished moral culpability" [R. v. D.B. at para. 70] and so the "Youth Criminal Justice Act" cannot create a presumption of an adult sentence upon youths.
Throughout the development of fundamental justice, petitioners have suggested many principles that the Courts have rejected for not being sufficiently fundamental to justice.
R. v. Malmo-Levine", the Supreme Court rejected the claim that an element of " harm" was a required component of all criminal offences, which in the circumstances of the case would have removed marijuana offences from Criminal law.
R. v. DeSousa", the Court rejected the claim that there must be symmetry between all actus reusand mens rea elements.
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)", the Court rejected the claim that laws affecting children must be in their best interests.
Comparison with other human rights instruments
United States Bill of Rightsalso contains rights to life and liberty under the Fifth Amendment and the United States Constitutionguarantees those rights under the Fourteenth Amendment. In Canada before the Charter, the Canadian Bill of Rightscontained rights to life, liberty and security of the person, but all these other laws limit those rights through due processrather than fundamental justice. Fundamental justice is read more substantively.
Another key difference is that the Fifth and Fourteenth US Amendments add the right to
property, and the Canadian Bill adds the right to "enjoyment of property." The fact that section 7 excludes a right contained in its sister laws is taken as significant, and thus rights to property are not even read into the rights to liberty and security of the person. [Hogg, 983-984.]
There have been calls for section 7 to protect property. In 1981 the Progressive Conservative Party suggested that section 7 be extended to protect the "enjoyment of property." Some provincial governments, including that of
Prince Edward Island, as well as the New Democratic Party, opposed the change. The NDP thought that if property rights were enshrined in the Charter, other economic rights should be added. In September 1982, after the Charter had been enacted, the government of British Columbiaapproved of an unsuccessful amendment to section 7 that would protect property rights. [David Johansen, " [http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp268-e.htm PROPERTY RIGHTS AND THE CONSTITUTION] ," Library of Parliament (Canada), Law and Government Division, October 1991.] "See Unsuccessful attempts to amend the Canadian Constitutionfor more information."
* [http://www.canlii.org/ca/com/chart/s-7.html Canlii.org section 7 digest]
* [http://www.charterofrights.ca/language.php Fundamental Freedoms: The Charter of Rights and Freedoms] - Charter of Rights website with video, audio and the Charter in over 20 languages
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