AuthorHamish Stewart
Section 7 of the Canadian Charter of Rights and Freedoms read s as follows:
Everyone has the r ight to life, liberty and s ecurity of the pers on and
the right not to be deprived t hereof except in accordance with t he
principles of f undamental justice .
Chacun a droit à la vie, à l a liberté et à la sécurité de sa pe rsonne; il ne
peut être porté atteinte à ce droit qu’en conformité avec le s principes
de justice fonda mentale.
The subject of this book is the interpretat ion and application of section 7.
In this introductory chapter, I place section 7 in the context of the Con-
stitution of Canada as a whole, part icularly in the context of the Charter
itself, and I brief‌ly consider its relationship to other rights-protecting
The Constitution of Canada consist s of a number of texts as well as a
number of principles, practices, and conventions that are not ex pressly
stated in the texts.1 The two central const itutional texts are the Consti-
tution Act, 1867 (better known to students of histor y as the British North
America Act, 1867) and the Constitution Act, 1982.2 Both are statutes of the
Parliament of the United Kingdom. The history of the Const itution Act,
1867 is well beyond the scope of this book. The political process lead-
ing up to the enactment of the Constitution Act, 1982 the negotiations
between federal and provincial governments, the questions referred to
the Supreme Court of Canada, the federal /provincial compromise of
November 1981 reached without the participation of the government of
Quebec, and the legislative process in the United Kingdom has been
described elsewhere and will not be reviewed here.3
The purpose of the Constitution Act, 1982 was twofold, and both
purposes were equally important to the federal government of the day.
The f‌irst was to provide an amending formula for the Const itution of
Canada so th at further constitutional change would not require a statute
of the United Kingdom enacted in response to a petition to Her Majesty
but could be done in Canada in accordance with t he constitution itself.
To this end, section 2 of the Canada Act 1982 provided that “No Act of
the Parliament of the United Kingdom passed after the Constitution Act,
1982 comes into force shall extend to Canada as pa rt of its law.” It might
be argued that since Parliament cannot bind itself, section 2 cannot pre-
vent Parliament from continuing to amend the Constitution of Canada.
But the better view is that any such attempt to amend t he Constitution of
Canada, regardless of its validity as a matter of UK l aw and regardless
of section 2, would not be valid Canadian l aw because Canadia n pol-
itical and legal actors, including Can adian courts, would not recognize
or give effect to such enactments.4 Thus, when Queen Elizabeth II gave
royal assent to the Canada Act 1982 on 17 April 1982, the Constitution
1 Reference re Secession of Q uebec, [1998] 2 SCR 217 at paras 49–52. The principle s
not expressly st ated in the constitutiona l texts are sometimes ca lled “unwritten”
(pa ra 52).
2 Constitution Act, 1982, being Schedule B to Can ada Act 1982 (UK), 1982, c 11.
3 See, for instance , Peter H Russell, Constitutional Odysse y, 3d ed (Toronto: Uni-
versity of Toronto Press, 20 04) ch 8; Edward McWhinney, Canad a and the Con-
stit ution 1979–1982 (Toronto: University of Toronto Pres s, 1982); Roy Romanow
et al, Canada –Notw ithstanding (Toronto: Carswell /Methuen, 1984). The main
source texts a re assembled in Anne Bayef sky, ed, Canada’s Constit ution Act 1982
& Amendmen ts: A Documentary Histor y, 2 vols (Toronto: McGraw-Hill Ryerson,
198 9).
4 See, among others, Peter W Hog g, Constitutional Law of Cana da, 5th ed supple-
mented (Scarborough, ON: Thomson Ca rswell, 2007) (loose-leaf r evision 2017-1)
ch 3.5(e); Brian Slatte ry, “The Independence of Canada” (1983) 5 Supreme Cour t
Law Review 3 69.

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