| Canadian Charter of Rights and Freedoms |
|---|
| Part of the Constitution Act, 1982. |
| Preamble |
| Guarantee of Rights and Freedoms |
| 1 |
| Fundamental Freedoms |
| 2 |
| Democratic Rights |
| 3, 4, 5 |
| Mobility Rights |
| 6 |
| Legal Rights |
| 7, 8, 9, 10, 11, 12, 13, 14 |
| Equality Rights |
| 15 |
| Official Languages of Canada |
| 16, 16.1, 17, 18, 19, 20, 21, 22 |
| Minority Language Education Rights |
| 23 |
| Enforcement |
| 24 |
| General |
| 25, 26, 27, 28, 29, 30, 31 |
| Application of Charter |
| 32, 33 |
| Citation |
| 34 |
Section 7 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 in Canada. 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.
This Charter provision provides both substantive and procedural rights.[1] It has broad application beyond merely protecting due process in administrative proceedings and in the adjudicative context, and has in certain circumstances touched upon major national policy issues such as entitlement to social assistance[2] and public health care.[3] As such, it has proven to be a controversial provision in the Charter.
Contents |
Under the heading of "Legal Rights", the section states:
7. 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.
The wording of section 7 says that it applies to "everyone". This includes all people within Canada including non-citizens.[4] It does not, however, apply to corporations.[5]
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 reasonably foreseeable consequence of the government actions.[6]
Section 7 has not been interpreted to convey positive rights nor has it been interpreted to impose any positive obligations upon the government. The Supreme Court of Canada has not ruled out these alternatives, however.[7]
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 unborn have 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., imprisonment would 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 dignity and 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 right only, as opposed to also being a family right or a union right, however the rights are between you and the government and not between you and a member of your family. 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 States case 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 socioeconomic 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.[8]
Thirdly, there is the right to security of the person, which consists of rights to privacy of the body and its health[9] 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 Canada was 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 missile testing 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 care to 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 living and can help the civil rights flourish in a liveable environment.[10] 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.[11]
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 justice and 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.
The following are some of the well established Principles of Fundamental Justice.
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))
The "Principles of Fundamental Justice" require laws to have a clear and understandable interpretation so as to properly define the rule or offence.
A law is unconstitutionally vague if it 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)
The "Principles of Fundamental Justice" require that criminal offences that have sentences involving prison must have a mens rea element. (Re B.C. Motor Vehicle Act, R. v. Vaillancourt) 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. Martineau)
In 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 torture would be shocking.
Anyone accused of a criminal charge has the right to know the case against them and put forward a defence. In addition to being a principle of fundamental justice, this right is also protected by the right to a fair trial under section 11(d) of the Charter.
"Full answer and defence" encompasses a number of things, including the right to counsel (also see section 10), the right to examine witnesses, and most importantly, the right to full disclosure by the Crown (see R. v. Stinchcombe, 1991).
In 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.
In R. v. D.B., 2008 SCC 25 [1], the Court held that "young people are entitled to a presumption of diminished moral culpability"[12] 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.
In 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.
In R. v. DeSousa, the Court had rejected the claim that there must be symmetry between all actus reus and mens rea elements.
In 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.
The United States Bill of Rights also contains rights to life and liberty under the Fifth Amendment and the United States Constitution guarantees those rights again under the Fourteenth Amendment. In Canada before the Charter, the Canadian Bill of Rights contained rights to life, liberty and security of the person, but all these other laws limit those rights through due process rather than fundamental justice. Fundamental justice is read more substantively.[13]
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.[14]
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 Columbia approved of an unsuccessful amendment to section 7 that would protect property rights.[15] See Unsuccessful attempts to amend the Canadian Constitution for more information.