Section 7 of the Canadian Charter of Rights and Freedoms

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: 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.

Text

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.

Application

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. However, the Supreme Court of Canada has not ruled out these alternatives.[7]

Life

First, there is the right to life, which stands generally as the basic right to be alive. Life has been thoroughly discussed by the Supreme Court in the 1993 case Rodriguez v British Columbia (AG). 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.

However, the Supreme Court under Chief Justice Beverley McLachlin has unanimously reversed this decision in Carter v Canada (AG). The Criminal Code provision imposing a blanket ban on assisted suicide was struck down for overbreadth, as it also impacted those with the capacity to provide legitimate consent. Bill C-14 was passed in June 2016 in response to this decision.

Liberty

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 decision 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 American case law, but the Supreme Court 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]

Security of the person

HenryMorgentaler
Henry Morgentaler, right, successfully challenged abortion law as a breach of security of person in R v Morgentaler (1988).

Third, 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 British Columbia (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. However, in R v Levkovic, 2013 SCC 25, the Supreme Court found that "security of the person" could not be used to justify a mother's failure to report a stillbirth.

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 (AG) (2005), the majority of Supreme Court justices declared Quebec's ban on private health care to breach security of the person, since delays in medical treatment can result in serious physical pain, or even death.

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.

While some people feel economic rights ought to be included, jurisprudence in this area appears not to support this view. In 2003, the Supreme Court ruled that, "The ability to generate business revenue by one's chosen means is not a right that is protected under s. 7 of the Charter."[11] In 2004, Blair JA, writing for the Court of Appeal for Ontario in Mussani v College of Physicians and Surgeons of Ontario noted that "the weight of authority is that there is no constitutional right to practise a profession unfettered by the applicable rules which and standards which regulate that profession", before going on to conclude that the revocation of Mr. Mussani's licence to practice medicine did not deprive him of life, liberty or the security of his person.[12] The courts have also held that "salary or compensation (in whatever form they may take), are in my view a purely economic right, and are not protected by section 7".[13]

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.[14]

Principles of fundamental justice

All three rights may 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 BC 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.

Arbitrariness

It is a principle of fundamental justice that laws should not be arbitrary. (R v Malmo-Levine) That is, the state may not 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 (AG))

Vagueness

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) In R v Nova Scotia Pharmaceutical Society, for example, a statute which made it illegal to "unduly" prevent or lessen competition was upheld. Although the wording was undeniably open-ended and uncertain, the concept of undue interference with competition was deemed sufficient to enable legal debate on the subject.

Overbreadth

The "Principles of Fundamental Justice" require that means used to achieve a societal purpose or objective must be reasonably necessary.

"Overbreadth analysis looks at the means chosen by the state in relation to its purpose. If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason." (R v Heywood at para 49)

Gross disproportionality

Gross disproportionality describes state actions or legislative responses to a problem that are so extreme as to be disproportionate to any legitimate government interest (R v Malmo-Levine at para 143)

Requirement of mens rea

The principles of fundamental justice require that criminal offences that have sentences involving prison must have a mens rea element. (Re BC 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)

Where an individual is criminally charged under an exceptionally complex or difficult to understand statute (such as the Income Tax Act), a mistaken interpretation of the law may serve to negate the requisite mens rea.[15]

Shocks the conscience

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.

Right to make full answer and defence

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).

Right to silence

In R v Hebert the court held that the right to silence was a principle of fundamental justice. Statements of the accused may not be achieved through police trickery and silence may not be used to make any inference of guilt.

Moral culpability for youths

In R v DB, 2008 SCC 25,[16] the Court held that "young people are entitled to a presumption of diminished moral culpability"[17] and so the Youth Criminal Justice Act may not create a presumption of an adult sentence upon youths.

Court-appointed Counsel

In R v Rowbotham, 1988 CanLII 147 (ON CA), the Ontario Court of Appeal found that section 7 requires the appointment of counsel for an accused facing a serious criminal charge who is not capable of representing himself and not financially able to retain counsel.

Moral involuntariness

In R v Ruzic, 2001 SCC 24,[18] the Court held that as a principle of fundamental justice, a person may not be found guilty of a criminal offence where the person faces "perilous circumstances" and is "deprived of a realistic choice whether to break the law." The Court affirmed moral involuntariness as a principle of fundamental justice in R v Ryan, 2013 SCC 3.

Rejected principles

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 the Canadian Criminal Code.

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 (AG), the Court rejected the claim that laws affecting children must be in their best interests.

Comparison with other human rights instruments

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.[19]

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.[20]

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.[21] See Unsuccessful attempts to amend the Canadian Constitution for more information.

References

  1. ^ Suresh v Canada
  2. ^ Gosselin v. Quebec (Attorney General)
  3. ^ Chaoulli v Quebec (AG)
  4. ^ Singh v Canada and Suresh v. Canada
  5. ^ Irwin Toy Ltd v Quebec (AG)
  6. ^ United States v Burns
  7. ^ Gosselin v Quebec (AG)
  8. ^ Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, page 980.
  9. ^ Hogg, 981.
  10. ^ Lugtig, Sarah and Debra Parkes, "Where do we go from here?" Herizons, Spring 2002, Vol. 15 Issue 4, page 14.
  11. ^ Siemens v Manitoba (AG), 2003 SCC 3, at para 47.
  12. ^ Mussani v College of Physicians and Surgeons of Ontario (2004), 74 OR (3d) 1 at para 42.
  13. ^ Clitheroe v Hydro One Inc (2009), 96 OR (3d) 203 at para 77 (SC), aff'd 2010 ONCA 458, leave to appeal ref'd [2010] SCCA No 316.
  14. ^ Hogg, 983.
  15. ^ R. v. Klundert 2004 CanLII 21268, Court of Appeal (Ontario, Canada)
  16. ^ "Archived copy". Archived from the original on 2008-05-19. Retrieved 2008-05-16.CS1 maint: archived copy as title (link)
  17. ^ R v DB at para 70
  18. ^ "R. v. Ruzic - SCC Cases (Lexum)". scc-csc.lexum.com. Retrieved 14 April 2018.
  19. ^ Hogg, Constitutional Law of Canada. 2003 Student Ed., pages 732–733.
  20. ^ Hogg, 983-984.
  21. ^ David Johansen, "PROPERTY RIGHTS AND THE CONSTITUTION," Library of Parliament (Canada), Law and Government Division, October 1991.

External links

Absolute liability

Absolute liability is a standard of legal liability found in tort and criminal law of various legal jurisdictions.

To be convicted of an ordinary crime, in certain jurisdictions, a person must not only have committed a criminal action but also have had a deliberate intention or guilty mind (mens rea). In a crime of strict or absolute liability, a person could be guilty even if there was no intention to commit a crime. The difference between strict and absolute liability is whether the defence of a “mistake of fact” is available: in a crime of absolute liability, a mistake of fact is not a defence. Strict or absolute liability can also arise from inherently dangerous activities or defective products that are likely to result in a harm to another, regardless of protection taken, such as owning a pet rattle snake; negligence is not required to be proven.

Ahani v Canada (Minister of Citizenship and Immigration)

Ahani v Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 72; 2002 SCC 2 is a significant decision of the Supreme Court of Canada in the areas of constitutional law and administrative law. It is a companion case to Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. Both cases deal with the procedure for removal of Convention refugees for reasons of national security under the Immigration Act, R.S.C. 1985, and address questions of procedural fairness.

Blencoe v British Columbia (Human Rights Commission)

Blencoe v British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 is a leading Supreme Court of Canada decision on the scope of section 7 of the Canadian Charter of Rights and Freedoms, and on the administrative law principle of natural justice.

Canada (AG) v PHS Community Services Society

Canada (AG) v PHS Community Services Society 2011 SCC 44, [2011] 3 SCR 134 is a leading Supreme Court of Canada case dealing with the application of the criminal law and healthcare heads of power found in section 91 and section 92 of the Constitution Act, 1867 and the principles of fundamental justice in section 7 of the Canadian Charter of Rights and Freedoms.

Canada (Minister of Employment and Immigration) v Chiarelli

Canada (Minister of Employment and Immigration) v Chiarelli, [1992] 1 S.C.R. 711 is a leading Canadian case on the constitutionality of the deportation regime. The court held that the deportation a permanent resident who has violated a condition of admission to Canada does not violate any principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms.

Death row phenomenon

The death row phenomenon is the emotional distress felt by prisoners on death row. Concerns about the ethics of inflicting this distress upon prisoners have led to some legal concerns about the constitutionality of the death penalty in the United States and other countries. In relation to the use of solitary confinement with death row inmates, death row phenomenon and death row syndrome are two concepts that are gaining ground. The death row syndrome is a distinct concept, which is the enduring psychological effects of the death row phenomenon, which merely refers to the triggers of the syndrome.

Harrison and Tamony define death row phenomenon as the harmful effects of death row conditions, while death row syndrome is the consequent manifestation of psychological illness that can occur as a result of death row phenomenon.

Gosselin v Quebec (AG)

Gosselin v Quebec (AG) [2002] 4 SCR 429, 2002 SCC 84, is the first claim under section 7 of the Canadian Charter of Rights and Freedoms to a right to an adequate level of social assistance. The Supreme Court of Canada rejected the Charter challenge against a Quebec law excluding citizens under age 30 from receiving full social security benefits.

New Brunswick (Minister of Health and Community Services) v G (J)

New Brunswick (Minister of Health and Community Services) v G (J), [1999] 3 S.C.R. 46, is a leading Supreme Court of Canada decision on right to legal aid services. The Court held that the denial of legal aid to parents whose custody of their child was challenged by the government is a violation of section 7 of the Canadian Charter of Rights and Freedoms.

R v Hess; R v Nguyen

R v Hess; R v Nguyen, [1990] 2 S.C.R. 906 is a decision of the Supreme Court of Canada where the Court struck down part of the Criminal Code offence of rape as a violation of section 7 of the Canadian Charter of Rights and Freedoms.

R v Malmo-Levine; R v Caine

R v Malmo-Levine; R v Caine [2003] 3 S.C.R. 571, 2003 SCC 74, is a leading constitutional decision of the Supreme Court of Canada. The Court rejected a constitutional challenge of the criminalization of marijuana.

R v Morgentaler

R v Morgentaler, [1988] 1 SCR 30 was a decision of the Supreme Court of Canada which held that the abortion provision in the Criminal Code was unconstitutional because it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms ("Charter") to security of person. Since this ruling, there have been no criminal laws regulating abortion in Canada.

R v Morgentaler (1993)

R v Morgentaler was a decision by the Supreme Court of Canada invalidating a provincial attempt to regulate abortions in Canada. This followed the 1988 decision R. v. Morgentaler, which had struck down the federal abortion law as a breach of section 7 of the Canadian Charter of Rights and Freedoms. In 1993, the provincial regulations were ruled to be a criminal law, which would violate the Constitution Act, 1867. That Act assigns criminal law exclusively to the federal Parliament of Canada.

R v Nova Scotia Pharmaceutical Society

R v Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 is a leading Supreme Court of Canada decision on section 7 of the Canadian Charter of Rights and Freedoms and the doctrine of vagueness. The Court held that laws can be struck down as a violation of section 7 where they are so vague as to violate fundamental justice.

R v Ruzic

R v Ruzic, [2001] 1 SCR 687 is a leading decision of the Supreme Court of Canada on the common law defence of duress and constitutionality of the defence under section 17 of the Criminal Code. The Court held that section 7 of the Canadian Charter of Rights and Freedoms requires that the defence of duress be available to an accused even when they were not under immediate threat of bodily harm at the time the offence was committed.

Robin Blencoe

Robin Kyle Blencoe (born November 12, 1947) was a politician in British Columbia, Canada. He was elected to represent the riding of Victoria-Hillside in the Legislative Assembly of British Columbia in 1983, 1986 and 1991. He served in the Cabinet of Mike Harcourt as Minister of Municipal Affairs, Minister of Government Services and the Minister Responsible for Sport and the Commonwealth Games. He was forced out of office due to a number of sexual harassment complaints, which resulted in Blencoe v. British Columbia (Human Rights Commission), a leading Supreme Court of Canada decision on the scope of section 7 of the Canadian Charter of Rights and Freedoms, and on the administrative law principle of natural justice.

Due to delays to the tribunal hearings the claims were not resolved for 30 months after the first filing in 1995. During this time Blencoe was subjected to vast media coverage that led to the end of his political career, and contributed to his and his family's social and psychological hardship. The Supreme Court of Canada rejected Blencoe's argument that the delay warranted a stay of the human rights complaint. Following this decision, the British Columbia Human Rights Tribunal issued its decision on the original sexual harassment complaint. The Tribunal found that Mr. Blencoe had engaged in conduct towards an employee which was sexual in nature and unwelcome, and that this conduct had a negative work-related impact on the employee. The Tribunal issued a declaration that Mr. Blencoe not engage in similar activity in the future an ordered that he pay $5000 to the former employee.

Security of person

Security of the person is a basic entitlement guaranteed by the Universal Declaration of Human Rights, adopted by the United Nations in 1948. It is also a human right explicitly mentioned and protected by the European Convention on Human Rights, the Constitution of Canada, the Constitution of South Africa and other laws around the world.

In general, the right to the security of one's person is associated with liberty and includes the right, if one is imprisoned unlawfully, to a remedy such as habeas corpus. Security of person can also be seen as an expansion of rights based on prohibitions of torture and cruel and unusual punishment. Rights to security of person can guard against less lethal conduct, and can be used in regard to prisoners' rights.

Singh v Canada

Singh v Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177 is a 1985 case of the Supreme Court of Canada.

Between 1977 and 1980, Harbhajan Singh, six Sikh foreign nationals and one from Guyana attempted to claim convention refugee status under the Immigration Act, 1976 on the basis that they had a well-founded fear of persecution in their home country. They were denied status by the Minister of Employment and Immigration on the advice of the Refugee Status Advisory Committee.

The six foreign nationals challenged the adjudication procedures under the Immigration Act on the basis that it violated section 7 of the Canadian Charter of Rights and Freedoms and violated section 2(e) of the Canadian Bill of Rights. The government claimed that since they had no status within the country they were not subject to the Charter.

Tremblay v Daigle

Tremblay v Daigle [1989] 2 S.C.R. 530, was a decision of the Supreme Court of Canada in which it was found that a fetus has no legal status in Canada as a person, either in Canadian common law or in Quebec civil law. This, in turn, meant that men, while claiming to be protecting fetal rights, cannot acquire injunctions to stop their partners from obtaining abortions in Canada.

United States v Burns

United States v Burns [2001] 1 S.C.R. 283, 2001 SCC 7, was a decision by the Supreme Court of Canada in which it was found that extradition of individuals to places where they may face the death penalty is a breach of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms. The decision reached this conclusion through a discussion of evidence regarding the arbitrary nature of execution, although the Court did not go so far as to say execution was also unconstitutional under section 12 of the Charter, which forbids cruel and unusual punishments.

The case essentially overruled Kindler v Canada (Minister of Justice) (1991) and Reference Re Ng Extradition (1991). In Burns, the Supreme Court justices claimed to be considering different kinds of evidence.

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