B. Interests Protected by Section 7

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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Although section 7 of the Charter can be broken up into its component parts of "everyone," "rights to life, liberty or security of the person," and the right not to be deprived of these rights "except in accordance with the principles of fundamental justice," it is also helpful to take a more holistic approach to whether a section 7 violation has been established. In the remainder of this chapter, we take such an approach and examine some important contexts in which laws and state actions have been challenged under section 7.

1) Control of the Body: Abortion, Assisted Suicide, and Access to Health Care

The Supreme Court of Canada has had two opportunities to examine the extent to which section 7 protects the individual in making significant decisions about the body. The first was R v Morgentaler,84in which the Court held that the abortion provisions of the Criminal Code violated section 7 of the Charter; the second, Rodriguez v R,85narrowly upheld the prohibition on assisted suicide in the Criminal Code.

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a) Abortion

R v Morgentaler dramatically demonstrated the Charter’s impact on highly contested matters of public policy. The Criminal Code provision at issue prohibited abortions but also provided an exemption if a woman seeking an abortion obtained a certificate from a therapeutic-abortion committee consisting of three physicians. Such a certificate could be issued if the committee concluded that the woman’s life or health would be endangered by the continuation of the pregnancy. These committees could operate only in accredited hospitals, and the doctor performing the abortion could not be included on the committee. Evidence was led to show that access to abortion varied significantly across the country. Many hospitals did not provide abortions at all, while others imposed rules more stringent than those set out in the Criminal Code, for example, denying abortions to married women.

The Supreme Court struck down the Criminal Code prohibition of abortion, but the Court was sharply divided in its reasoning. Justice Beetz, writing for himself and Estey J, found it possible to strike down the law on relatively narrow grounds. He focused on the fact that the law had a direct impact on a woman’s health. In his view, the law infringed the woman’s right to security of the person by requiring committee approval of medical treatment necessary to protect her life or health. He also found that the therapeutic-abortion committee procedure was not in accordance with the principles of fundamental justice, since it was applied in an arbitrary and uneven fashion, often based on factors not reasonably linked to the protection of the life or health of the woman or her fetus.

Justice Wilson adopted a much more expansive interpretation. In her view, there was a violation of both the right to liberty and the right to security of the person. The right to liberty, Wilson J wrote, "guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives."86A woman’s decision whether to continue a pregnancy is hers and hers alone, and state interference with her personal autonomy in making that decision violates her right to liberty. In addition, Wilson J found, the state violated the woman’s right to security of the person by forcing her to continue a pregnancy. The woman’s autonomy right was infringed for she was being treated as "a means to an end which she does not desire," in that she was "the passive recipient of a decision made by others as to whether her body is to be used to nurture a new life."87

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The third set of majority reasons was written by Dickson CJC, with Lamer J concurring. Some of his language echoed that of Wilson J:

Forcing a woman, by threat of criminal sanction, to carry a fœtus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of security of the person.88However, other passages suggest an approach closer to that of Beetz J, because of the emphasis on the threat to a woman’s physical and psychological health created by procedures that prevented, or at least delayed, access to important medical treatment under the threat of criminal sanction.

Justice MCINTYRE in dissent, with La Forest J concurring, rejected the view that section 7 included a right to an abortion in any circumstances. In his view, neither the language of the Charter nor "the history, traditions and underlying philosophies of our society would support the proposition that a right to abortion could be implied in the Charter."89While all the majority judges rejected arguments made under section 1 to save the legislation, they also made it clear that some restrictions on a woman’s access to abortion could be justified under section 1 in order to protect the fetus. Justice Beetz, however, rejected the proposition that Parliament could prevent access to an abortion necessary to protect maternal life or health. Justice Wilson suggested that Parliament’s case for intervention to protect the fetus would become stronger as the pregnancy progressed. This suggested an approach similar to that of the United States Supreme Court, which, in Roe v Wade,90had concluded that increasing restrictions on access to abortion were justified in the later stages of pregnancy.

Morgentaler generated much debate about whether Parliament could enact new legislation limiting abortions that would survive judicial scrutiny. The federal government attempted to do so shortly after the decision with the introduction of Bill C-43, which would have required a doctor to certify that a woman’s health was endangered by the continuation of the pregnancy. The bill passed in the House of Commons but was defeated as a result of a tie vote in the Senate. The result is that there is currently no prohibition of abortion in Canada’s criminal law. Some provinces have attempted to control access to abortion,

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particularly by restrictions on free-standing abortion clinics, but some of those initiatives have been found to be unconstitutional under the distribution of powers in the federal system. For example, in Morgentaler 1993, the Supreme Court of Canada struck down Nova Scotia’s regulation as an attempt to legislate in the area of criminal law, which is within exclusive federal jurisdiction.91There have also been attempts to litigate the abortion issue from the perspective of fetal rights. Joseph Borowksi, a pro-life activist, brought an action seeking a declaration that the abortion provisions in the Criminal Code violated the fetus’s right to life under section 7. He was unsuccessful in the lower courts of Manitoba. By the time the case reached the Supreme Court of Canada, the Court had struck down the abortion provisions of the Criminal Code in Morgentaler, and the Court declined to consider his case on the merits on the basis that the issue was moot - that is, there was no legal issue, given the invalidity of the legislation.92In Daigle v Tremblay,93a man sought an injunction to prevent his former partner from obtaining an abortion. The case involved the interpretation of Quebec’s Charter of Human Rights and Freedoms, specifically, the scope of the fetus’s and prospective father’s rights. The Supreme Court of Canada determined that a fetus is not a person with rights under the Quebec Charter, but it did not address the issue of whether "everyone" in section 7 of the Canadian Charter includes a fetus, since no law was being challenged and the Canadian Charter did not apply to a proceeding involving private parties.

b) Assisted Suicide

Rodriguez v R94raised the issue of the scope of section 7 in relation to another important personal decision, namely, the right to determine the timing of one’s death through assisted suicide. Sue Rodriguez was terminally ill, suffering from Lou Gehrig’s disease, which had attacked her neurological system. She wanted to be able to end her own life when she felt that the quality of her life made it no longer worth living. Given the nature of her disease, at that point, she might be unable physically to accomplish the necessary acts, and hence she might need some assistance. Attempting suicide is not a crime, but section 241(b) of the Criminal Code makes it an offence for anyone to assist another

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person to commit suicide. Rodriguez argued that the section violated section 7 of the Charter by denying her the right to terminate her life when she wished.

The Supreme Court of Canada divided 5:4 on the issue of the constitutionality of the provision. Justice Sopinka, writing for the majority, held that the legislation did violate the right to security of the person. His reasons drew upon those of Wilson J in Morgentaler. He concluded:

. . . personal autonomy, at least with respect to the right to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these.95On the facts of the case, Sopinka J held that denying Rodriguez assistance to commit suicide would deprive her of personal autonomy and cause physical pain and psychological distress. However, when Sopinka J went to the next level of analysis, he found that the restriction on assisted suicide did not violate principles of fundamental justice. The purpose of the legislation, he found, was to protect those in a vulnerable situation from exploitation. The...

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