Life, liberty, and security of the person and the principles of fundamental justice

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

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Section 7 of the Charter of Rights and Freedoms provides:

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.

The section is cast in broad language and the scope of the guarantee is potentially significant and far-reaching. In an early decision, the Supreme Court stated that the process of elaborating the meaning of section 7 would necessarily be a gradual and case-by-case exercise.1This approach is understandable, for the interpretation of section 7 raises difficult questions. As we shall see, many of these questions involve fundamental moral and social issues, and call for the courts to consider the scope and limits of judicial review under the Charter.

Section 7 has had a significant impact in the criminal law context where it has been held to extend important procedural and substantive guarantees to persons accused of crime. That aspect of section 7 is discussed in Chapter 14. This chapter considers the impact of section 7 outside the sphere of guarantees in the criminal process. Here it is significant that section 7 of the Charter, unlike the due process protections of the American Bill of Rights, does not explicitly protect property rights. Moreover, unlike some other modern rights protection

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instruments, section 7 of the Charter does not explicitly protect socioeconomic rights such as the right to welfare or housing or health care.

As will be seen, however, section 7 still has an important and often controversial role to play outside of the criminal justice context. Should section 7 be narrowly interpreted to protect little more than procedural fairness? Or, does the requirement to respect the "principles of fundamental justice" demand review of the substantive content of legislation to ensure that all laws are just and fair? Does section 7 protect the "liberty" to do as one pleases, or should "liberty" be given a narrower interpretation, embracing only physical freedom? All laws constrain "liberty" in its widest sense. It is a basic tenet of our legal system that one is at liberty to do as one pleases unless constrained by some positive law. Yet ours is also a society governed by law and a society that recognizes that laws, and hence constraints on liberty, are required to preserve order and protect the weak and vulnerable. Does "security of the person" entail the right to own property or the...

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