Life, Liberty, and Security of the Person and the Principles of Fundamental Justice

• Author: Robert J. Sharpe; Kent Roach
• Pages: 244-293

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CHAPTER 13

LIFE, LIBERTY,

AND SECURITY OF

THE PERSON AND

THE PRINCIPLES OF

FUNDAMENTAL JUSTICE

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 f undamental 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 Su-

preme Court stated that the process of elaborating the meaning of sec-

tion 7 would necessarily be a gradual and case-by-case exercise.1 This

approach is understandable, for the interpretation of section 7 raises

diff‌icult questions. As we shall see, many of these questions involve

fundamental moral a nd 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 importa nt procedural a nd subst antive

guarantees to persons accused of crime. That aspect of section 7 is dis-

cussed in Chapter 14, though some major cases involving the criminal

process must be discu ssed in this chapter to the extent that t hey def‌ine

general principles for section 7. This chapter focuses on the impact of

section 7 outside the sphere of guarantees i n 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

1 Rv Morgentaler, [1988] 1 SCR 30 at 51, 44 DLR (4th) 385, Dickson CJC [Morgentaler].

Life, Libert y, and Security of the Person a nd the Principles of Fu ndamental Justic e 245

property rights. Moreover, unlike some other modern rights protection

instruments, section 7 of the Charter does not explicitly protect socio-

economic 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 funda-

mental justice” demand review of the substantive content of legislation

to ensure that all laws are just and fair? Does section 7 protect the “lib-

erty” to do as one pleases, or should “liberty” be given a narrower inter-

pretation, 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 constraint s 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

right to contract for private health insurance? If so, section 7 could help

the “haves” in our society by signif‌icantly constraining governmental

regulatory and redistributive measures. Does “security of the person”

guarantee some minimal level of economic entitlement? If so, section 7

could help the “have-nots” by compelling the creation and extension of

government welfare schemes. Opponents of abortion have argued that

abortion denies the unborn the right to “life,” while pro-choice advo-

cates contend that laws preventing abort ion infringe a woman’s rights to

“liberty” and “security of the person.”

There is also conf‌lict about the sources of the principles of funda-

mental justice. Are they found only in the basic or traditional tenets of

the justice system? Or, can they be informed by changing standards

of domestic and even international justice? Is there a danger of judges

reading their own views of good policy into the principles of funda-

mental justice? How much of a consensus is required be fore a principle

is recognized as a principle of fundamental justice? How do courts dis-

tinguish between legal principles and matters of policy that should be

left to elected governments? Finally, what is the appropriate relation

between section 7 and section 1 of the Charter? Is section 7 of the Char-

ter such a special right that violations of section 7 rights will rarely if

ever be justif‌ied under section 1 of the Charter? Has the reluctance of

courts to hold that violations of section 7 are justif‌ied under section

1 affected the content of the section 7 rights both with respect to the

def‌inition of the rights to life, liberty, and security of the person and

with respect to the def‌inition of the principles of fundamental justice?

THE

CHARTER OF R IGHTS A ND FREEDOMS

246

In this chapter, we canvass the way the courts have responded to

these and other questions. As we shall see, def‌initive answers have yet

to be given in many contentious areas. After three decades of litigation,

the task of def‌ining the outer limits of “life, liberty and security of the

person” as well as the “principles of fundamental justice” is still very

much a work-in-progress.

A. THE REQUIREMENTS OF A SECTION 7

VIOLATION

There are a number of steps in establishing a violation of section 7 of

the Charter. First, the Charter applicant must demonstrate that he or

she falls within the reference to “everyone” in section 7. Establishing

this will be easy in the context of natural persons, but not in the case

of corporations or other artif‌icial entities. Next, the Charter applicant

must demonstrate a violation of the right to life, liberty, or security

of the person. Doing this will be easy in the context of physical dep-

rivations of liberty, but more contentious in the case of other interests.

Demonstrating a violation of the right to life, liberty, or security of

the person, however, is insuff‌icient to make out a section 7 claim. For

example, a person convicted of a criminal offence and sentenced to jail

suffers a loss of liberty, but loss of liberty, standing alone, is not con-

trary to t he Charter guarantee. The rights clai mant must proceed to the

f‌inal stage of analysis and show that the denial of a right protected by

section 7 is contrary to t he principles of fundamental justice. The issue

under section 7 is not whether the legislation strikes the right balance

between individual and social interests, but whether it results in the

deprivation of life, liberty, or security of the person in a manner that

does not respect fundamental principles of justice. The claimant under

section 7 should not bear the burden of demonstrating that the state’s

action is disproportionate and unjustif‌ied: in other words, section 7

does not permit “a freestanding inquiry . . . into whether a particular

legislative measure ‘strikes the right balance’ between individual and

societal interests in general.”2

If all three elements of the s ection 7 violation have been established,

it is still theoretically possible that the section 7 violation could be jus-

tif‌ied by the government under section 1 of the Charter. Nevertheless,

the courts have indicated that justif‌ications of section 7 violations will

2 R v Malmo-Levine; R v Cain e, [2003] 3 SCR 571 at par a 96 [Malmo-Levine]; Charkaoui

v Canada (Citizenship and Immigratio n), [2007] 1 SCR 350 at para 21 [Charkaoui].