Section 7 of the Canadian Charter of Rights and Freedoms provides protective measures for every individual’s 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”. It manifests as a constitutional provision that shields an individual's autonomy and personal legal rights against governmental actions. In Suresh's case, according to the Supreme Court, this provision bestows both substantive and procedural rights. Substantive rights refer to those related to actions undertaken or laws enacted by the government, while procedural rights govern judicial proceedings, including criminal proceedings.
In its most basic procedural interpretation, section 7 ensures “due process”, the concept that no Canadian should be deprived of their liberty unless judged lawful by their peers for having violated Canadian laws. Section 7, however, extends beyond merely safeguarding due process; under certain circumstances, it addresses significant national policy issues. For instance, section 7 right was invoked in Morgentaler to demonstrate that the Canadian laws against abortion violated the Charter. As a result, section 7 has grown into a contentious provision in the Charter.
Section 7 right is one of the most complex Charter rights, providing three types of protection: the right to life, the right to liberty, and the right to the security of the person. Though these are distinct concepts, they are related. Additionally, section 7 establishes that these rights can only be denied in adherence to “fundamental justice”.
Even though all Charter rights are limited by section 1 of the Charter, which states all Charter rights are subject to reasonable restrictions imposed by law that can be demonstrably legitimized in a free and democratic society, section 7 also contains its own limiting provisions stating the right not to be deprived thereof except in accordance with the principles of fundamental justice. However, the Charter remains silent about what qualifies as a “principle of fundamental justice”, leaving courts the task of determining which legal principles are necessary for establishing fundamental justice.
In R. v. White, the Supreme Court of Canada proposed a three-stage inquiry that every court must facilitate to ascertain if a breach of section 7 has transpired. The first stage probes for a real or impending deprivation of life, liberty, or security of the person or any combination of these three.
The term "right to life" denotes that government interference in your ability to live is prohibited. If the government threatens your life actions such as possible deportation to a country where your life may be at risk, extradition to a jurisdiction where you face the death penalty, or hindrance in your ability to seek medical treatment, then section 7 right to life is triggered, provided the deprivation coheres with the principles of fundamental justice. For instance, the Supreme Court found in Chaoulli v. Quebec that the legislation denying people the choice to seek surgery outside the public health system violates the right to life.
The eventual realization of the "right to liberty" ensures an individual's freedom to act without physical constraint. Actions by the government that endanger your liberty, such as incarceration, conditional sentencing, probation, or suspension of your driver’s license, will trigger the Section 7 right to liberty unless it is in alignment with the principles of fundamental justice. Furthermore, the Supreme Court extended the right to liberty in Blencoe v. British Columbia to incorporate the right to make important personal choices. In R. v. Clay, the Supreme Court explained that the freedom to make personal decisions "touches 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.”
In Godbout v. Longueuil, it was further expatiated that section 7 right to liberty preserves a narrow “sphere” of personal freedom wherein individuals may make inherently private choices devoid of state interference. Suggestions have arisen for the extension of this “sphere” to incorporate the right to privacy or child-rearing, however, such specific aspects of liberty haven't gained much ground for an extension by the Supreme Court.
Section 7 also defends every individual’s “security of the person." The Supreme Court ruled that the government is deemed to interfere with an individual’s security of the person when it compromises the privacy of the body and its health or intervenes with the "psychological integrity" of a human being. For instance, according to Blencoe v. British Columbia, the protection of section 7 of the “psychological integrity” safeguards against significant government-inflicted harm, which often entails stress to the mental state of the individual.
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Some argue that Section 7’s protection of the security of the person should be extended to shelter economic rights. The argument often circles the notion that theoretically, the security of the person would be breached if the government were to curb an individual’s ability to earn income, as such actions might have physical and psychological consequences. However, the Supreme Court of Canada has thus far emphatically declined to recognize any constitutional protection of economic rights.
The three rights in section 7 often interact, leading a claimant to assert that an action violates more than one interest protected by section 7. For instance, in Chaoulli v. Quebec, Chaoulli contended that Quebec’s law against private medical treatment violated the right to life, liberty, and security of the person by interfering with the ability to seek life-preserving medical treatment and make important personal choices, while delays in receiving medical treatment could have physical and psychological consequences.
Conflicts may arise among the interests, requiring the court to construe the scope of each interest in harmony with others to derive a contradiction-free interpretation of section 7. For example, in Rodriguez v. British Colombia, the Supreme Court ruled that the section 7 right to control one's body, implicit in the right to liberty and the right to security of the person, cannot supersede the right to life to authorize assisted suicide. The Court justified this decision by reasoning that the common societal belief that "human life is sacred" makes it impossible to include the right to suicide in section 7’s protection of the security of the person.
The second stage in R. v. White’s section 7 inquiry seeks the identification and definition of the relevant principle or principles of fundamental justice applicable to the case at bar. In R. v. Malmo-Levine, the Supreme Court of Canada characterized “principles of fundamental justice” as any legal principle around which there exists sufficient societal consensus to deem it essential to the fair operation of the legal system. The court also asserted that the principle must be identifiable with adequate precision to provide a manageable standard against which to gauge deprivations of life, liberty, or security of the person.
In Canadian Foundation for Children, Youth and the Law v. Attorney General of Canada, the court framed a separate test for identifying a principle of fundamental justice: (i) the claimant must prove the legal principle exists, (ii) the claimant must demonstrate there is sufficient consensus that the principle is vital and fundamental to our concept of justice, and (iii) the claimant must define the principle precisely and show it is easily applied to the situation at hand.
Some principles of fundamental justice accepted by the Supreme Court in previous section 7 cases include that criminal guilt requires proof of men's rea, the right to remain silent, fair trial necessitates representation by a criminal defence lawyer in some cases, respect for human life, the prohibition of government behaviour that would “shock the conscience” of most Canadians, human rights cannot be deprived in an arbitrary or unfair manner, laws must adhere to precision, vague laws do not allow fair notice to the person as to what is permitted or prohibited by the law, laws must not be grossly disproportionate to state interest, laws must not be over-broad, and administrative procedures in the justice system must be fair.
The final stage of the R. v. White inquiry demands the court to discern whether the deprivation of life, liberty, and/or security of the person has occurred in compliance with the relevant principle or principles of fundamental justice. If it is deemed that it has not occurred in accordance with the principles of fundamental justice, the court will register a breach of section 7. Upon completion of the White inquiry, the court must also consider any argument put forth by the Crown asserting that the breach of section 7 is justified in a fair and democratic society and therefore allowed by section 1 of the Charter. However, since section 7 incorporates its limiting provision, the Supreme Court of Canada declared that breaches of section 7 will rarely be rescued by section 1.
At a trial, a criminal defence lawyer may allege a breach of section 7. Since a verdict of guilt may result in a denial of liberty, your criminal defence lawyer may have a reason to argue that the denial of liberty in a particular case would infringe upon a fundamental principle of justice.
