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

AuthorRobert J. Sharpe; Kent Roach
Section 7 of the Charter of Rights and Freedoms provides:
Everyone has the r ight to life, liberty and sec urity of the person and
the right not to be deprived t hereof except in accordance with t he
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 g radual and case-by-case exerci se.1 This
approach is understandable, for the interpretation of section 7 raises
diff‌icult questions. As we sha ll see, many of these questions involve
fundamental moral a nd social issues, and call for the courts to consider
the scope and limits of judicia l review under the Charter.
Section 7 has had a sign if‌icant impact in the crimi nal 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 sect ion 7 is dis-
cussed in Chapter 14, though some major cases involving the cr iminal
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 th at section 7 of the Charter, unlike the due process
protections of the American Bill of R ights, does not explicitly protect
1 R v 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 welf are or housing or health care.
As will be seen, however, sect ion 7 still has an important and often
controversial role to play outside of the crimin al justice context. Should
section 7 be narrowly interpreted to protect little more than procedural
fairness? Or, does the requirement to res pect the “principles of funda-
mental justice” demand review of the subst antive content of legislation
to ensure that all l aws are just and fair? Does section 7 protect the “lib-
erty” to do as one pleases, or should “liberty” b e given a narrower inter-
pretation, embracing only physical freedom? All laws const rain “liberty”
in its widest sens e. It is a basic tenet of our legal system that one is at
liberty to do as one please s unless constrained by some posit ive law. Yet
ours is also a society governed by l aw and a society that recognize s that
laws, and hence constraint s on liberty, are required to preserve order and
protect the weak and vulnerable.
Does “security of the per son” entail the right to own property or the
right to contract for private health insur ance? If so, section 7 could help
the “haves” in our society by signif‌ica ntly constraining governmenta l
regulatory and redi stributive measures. Does “secur ity 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 t he 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 ba sic or traditional tenets of
the justice system? Or, can they be informed by ch anging standards
of domestic and even international just ice? 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 wi ll 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?
In this chapter, we canvass t he way the courts have responded to
these and other questions. A s we shall see, def‌initive answers have yet
to be given in many contentious areas. After three decades of litigation,
the task of def‌ining t he outer limits of “life, liberty and securit y of the
person” as well as the “principles of fund amental justice” is still very
much a work-in-progress.
There are a number of steps in establishing a v iolation of section 7 of
the Charter. First, the Charter applicant must demonstrate that he or
she falls withi n the reference to “everyone” in section 7. Establishing
this wil l be easy in the context of natural persons, but not in the case
of corporations or other artif‌ici al entities. Next, the Charter applicant
must demonstrate a violation of the right to life, liber ty, or security
of the person. Doing this w ill be easy in the context of physical dep-
rivations of liberty, but more contentious in the case of other interest s.
Demonstrating a violation of the r ight 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 analysi s 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 fundament al principles of justice. The claimant under
section 7 should not bear the burden of demonstrating that the state’s
action is disproportionate and unjusti f‌ied: in other words, section 7
does not permit “a freestand ing inquiry . . . into whether a particular
legislative measure ‘str ikes the right balance’ bet ween individual and
societal interests in general.2
If all three elements of the s ection 7 violation have been established,
it is still theoretical ly possible that the section 7 violation could be jus-
tif‌ied by the government under section 1 of the Char ter. Nevert heless,
the courts have indicated t hat justif‌ications of section 7 violations w ill
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].

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