Section 7 of the Canadian Charter of Rights and Freedoms protects 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”.
Section 7 of the Charter is a constitutional provision that protects an individual’s autonomy and personal legal rights from actions of the government.
According to the Supreme Court in Suresh, this provision provides both substantive and procedural rights. In other words, the right in s. 7 applies to action taken or laws made by the government (substantive) and also governs judicial proceedings, such as criminal proceedings (procedural).
At its most basic procedural interpretation, s. 7 protects “due process” – the idea that no Canadian should be deprived of their liberty unless by the lawful judgment of his or her peers he or she is found to have breached the laws of Canada.
However, s. 7 has broad application beyond merely protecting due process; in certain circumstances, it has touched upon major national policy issues. For example, the s. 7 right was used in Morgantaler to show that the Canadian laws against abortion violated the Charter. As such, s. 7 has proven to be a controversial provision in the Charter.
The right in s. 7 is one of those most complicated Charter rights. There are three types of protection within the section, namely protection of the right to life, the right to liberty, and the right to security of the person.
These are distinct, albeit related, concepts. In addition, s. 7 states that denials of these rights are constitutional only if the denials do not breach what is referred to as “fundamental justice”.
Thus, even though all Charter rights are limited by the limiting provision in s. 1 of the Charter (all Charter rights are subject to reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society), s. 7 also contains its own limiting provisions (the right not to be deprived thereof except in accordance with the principles of fundamental justice). Finally, the Charter gives no indication of what qualifies as a “principle of fundamental justice”, and courts are left to determine which legal principles qualify as being necessary for fundamental justice.
In R. v. White, the Supreme Court of Canada set out a three-stage inquiry that every court must follow to determine whether a breach of s. 7 has occurred. The first stage asks whether there exists a real or imminent deprivation of life, liberty, security of the person (or any combination of the three).
The right to life means that the government cannot interfere with your ability to live. If the government acts in a way that threatens you life (by threatening to deport you to a country where you face death, by threatening to extradite you to a jurisdiction where you face the death penalty, by interfering with your ability to seek medical treatment, etc.) that threat would trigger the protection of the right to life in s. 7, unless the deprivation is consistent with the principles of fundamental justice.
For example, in Chaoulli v. Quebec the Supreme Court found that the right to life was violated by legislation that would not allow people in need of surgery to seek it anywhere but the public health system.
The right to liberty protects an individual’s freedom to act without physical restraint. Any action by the government that threatens to deprive you of your liberty (for example, incarceration, a conditional sentence, a probation order, a suspension of you driver’s license, etc.) would trigger the protection of the s. 7 right to liberty, unless it is consistent with the principles of fundamental justice.
Moreover, in Blencoe v. British Columbia the Supreme Court extended the right the liberty to include the right to make important personal choices. In R. v. Clay, the Supreme Court of Canada explained that the ability to make personal choices “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, the Supreme Court further explained that the s.7 right to liberty protects a narrow “sphere” of personal freedom wherein individuals may make inherently private choices free from state interference. Though it has been suggested that the “sphere” be extended to include the right to privacy or the right to bring up children, the Supreme Court has, for the most part, been hesitant to extend the right to cover these specific aspects of liberty.
Finally, the s. 7 protects every individual’s “security of the person”. The Supreme Court has ruled that the government threatens to interfere with an individual’s security of the person when it interferes with the privacy of the body and its health or when it interferes with the “psychological integrity” of a human being. According to Blencoe v. British Columbia, s. 7’s protection of the “psychological integrity” of a human being protects against significant government-inflicted harm (often in the form of stress) to the mental state of the individual.
Some people have argued that s. 7’s protection of the security of the person should protect economic rights. They argue that, in theory, security of the person would be breached if the government were to limit an individual’s ability to make an income (for example by denying welfare, taking away property essential to one’s profession, or denying licenses) because such action could have physical and psychological/stressful consequences.
However, to date, the Supreme Court of Canada has emphatically refused to recognize any constitutional protection of economic rights.
The three rights in s. 7 often interact, and a claimant will often allege that an action breaches more than one of the interests protected by s. 7. For example, in Chaoulli v. Quebec, Chaoulli argued that Quebec’s law against private medical treatment violated the right to life (by interfering with ability to seek medical treatment necessary for life), liberty (by interfering with the ability to make important personal choices), and security of the person (since delays in obtaining medical treatment could have physical and psychological (stressful) consequences).
Sometimes the interests can contradict, and the court must interpret the scope of each interest in harmony with the others in order to reach an interpretation of s. 7 that avoids self-contradiction. For example, in Rodriguez v. British Colombia the Supreme Court ruled that the s. 7 right to bodily control (implicit in the right to liberty and the right to security of the person) could not trump the right to life in order to justify assisted suicide. The Court explained that it is a common societal belief that “human life is sacred;” therefore, s. 7’s protection of security of the person could not include in its scope a right to suicide.
The second stage of the s. 7 inquiry from R. v. White requires that the court identify and define the relevant principle or principles of fundamental justice which apply to the case at bar. In R. v. Malmo-Lavine, the Supreme Court of Canada defined “principles of fundamental justice” as any “legal principle about which there is sufficient societal consensus that it is fundamental to the way in which the legal system should fairly operate.” The court also stated that the principle must be “identified with sufficient precision to yield a manageable standard against which to measure 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 laid out a separate test for identifying a principle of fundamental justice: (i) the claimant must show that the legal principle exists, (ii) the claimant must show that there is sufficient consensus that the principle is vital and fundamental to our notion of justice, and (iii) the claimant must identify the principle with precision and show that it is easily applied to the situation at hand. Some principles of fundamental justice have been accepted by the Supreme Court in previous s. 7 cases, for example:
Criminal guilt requires proof of mens rea,
The right to remain silent,
The right to fair trial requires representation by a criminal defence lawyer in some cases,
Respect for human life,
The government should not engage in behaviour that would “shock the conscience” of most Canadians,
Human rights cannot be deprived in an arbitrary or unfair manner,
There must be a precision to law,
Vague laws do not permit 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 requires that the court determine whether the deprivation of life, liberty and/or security of the person has occurred in accordance with the relevant principle or principles of fundamental justice.
If it cannot be said to have occurred in accordance with the principles of fundamental justice, the court will find a breach of s. 7. Once the inquiry from White is completed, the court must still consider any argument by the Crown that the breach of s.7 is justified in a fair and democratic society and therefore permitted by s. 1 of the Charter.
However, because s. 7 contains its own limiting provision, the Supreme Court of Canada has ruled that breaches of s. 7 will rarely be saved by s. 1.
At trial a criminal defence lawyer may allege a breach of s. 7. Since a finding of guilt may lead to a denial of liberty, your criminal defence lawyer may have reason to argue that that the denial of liberty in a particular case would contravene a fundamental principle of justice.
Know your rights Contact Kostman and Pyzer, Barristers if you’ve been charged with a criminal offence.