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

• Author: Robert J. Sharpe; Kent Roach
• Pages: 258-308

258

C H A P T E R 13

LIFE, LIBERTY,

AND SECURITY OF

THE PERSON AND

THE PRINCIPLES OF

FUNDAMENTAL JUSTICE

Section 7 of the Charter of Rights and Freedoms provide s: “Everyone has

the right to life, libert y and security of the person and the right not to be

deprived thereof except in accordance with the principles of fundamen-

tal justice.” The section is cast in broad language, and t he scope of the

guarantee is potent ially signif‌icant and far-reaching. In an e arly decision,

the Supreme Court of Canada stated th at the process of elaborating t he

meaning of section 7 would necessarily be a gradual and case-by-case

exercise.1 This approach is under standable because the interpretation of

section 7 raises dicult questions. As we shall see, many of these ques-

tions involve fundamental moral and soc ial issues and call for the courts

to consider the scope and limits of judici al review under the Charter.

Section 7 has had a sign if‌icant impact in the cr iminal law context,

where it has been held to extend important procedural and substan-

tive guarantees to persons accused of cri me. That aspect of section 7

is discussed in Chapter 14, although some major cases involving the

crimina l process must be discussed in thi s chapter to the extent that

they def‌ine general principles for section 7. This chapter focuses on the

impact of section 7 outside the sphere of guarantee s in the criminal pro-

cess. Here it is signif‌icant that section 7 of the Charte r, unlike the due

process protections of the American Bill of Rights, does not explicitly

protect property rights. Moreover, unlike some other modern rights

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

[Morgentaler].

Life, Libert y, and S ecurity of the Person 259

protection instruments, sect ion 7 of the Charter does not explicitly pro-

tect socio-economic rights, such as t he right to welfare, housing, or

health care.

As will be seen, however, section 7 still has an important and often

controversial role to play outside the criminal justice context. Should

section 7 be narrowly inter preted to protect litt le more th an procedural

fairness? Or does the requirement to respect 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

“liberty” to do as one pleases, or should “liberty” b e given a narrower

interpretation, embracing only physical freedom? All laws constrain

“liberty” in its wide st sense. It is a basic tenet of our legal system that one

is at liberty to do as one pleas es unless constrained by some positive l aw.

Yet our society is also governed by law and recogni zes that laws, and

hence constraints on liberty, are required to preserve order and protect

the weak and vulner able.

Does “security of the per son” enta il the right to own property or the

right to contract for private health insu rance? If so, sect ion 7 could help

the “haves” in our society by signif‌icantly constraining govern mental

regulatory and redi stributive measures. Doe s “security of the person”

guarantee some mini mal 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 arg ued

that abortion denies the unborn the right to “life,” whereas pro-choice

advocates contend that laws preventing abortion 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 in formed by changing st andards

of domestic and even international just ice? Is there a danger of judges

reading their ow n views of good policy into the principles of fundamen-

tal justice? How much of a consensus is required b efore a principle is

recognized as a pr inciple of fundamental justice? How do courts distin-

guish between legal principles and matters of policy that should be left

to elected governments? Finally, what is the appropriate relationship

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

ter such a special right that violations of section 7 right s 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

aected the content of the section 7 rights with respect to both the def-

inition of the rights to life, liberty, and security of the person and t he

def‌inition of the principles of fundamental justice?

THE CHARTER OF R IGHTS A ND FREEDOMS260

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

these and other questions. A s we shall see, def‌initive an swers have yet

to be given in many contentious areas. After almost four decades of liti-

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

of the person,” as well as the “principles of funda menta l justice,” is stil l

very much a work in progress.

A. THE R EQUIREMENTS OF A SECTION 7

VIOL ATION

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

the Charter. First, the Charter applicant must demonstrate th at he or she

falls with in the reference to “everyone” in section 7. Establishing this

will be easy in the context of natural persons but not in the case of cor-

porations or other artif‌icial entities. Next, the Charter applic ant must

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

person. Doing this w ill be easy i n the context of physical deprivations

of liberty but more contentious in the case of other interests. Demon-

strating a violation of the right to life, liberty, or security of the person,

however, is insucient to make out a section 7 claim. For example, a

person convicted of a criminal oence and sentenced to jail suers a

loss of liberty, but loss of liberty alone is not contrar y to the Charter

guarantee. The rights cl aimant must proceed to the f‌in al stage of analy-

sis and show that the denial of a r ight protected by s ection 7 is contrary

to the principles of fundament al justice. The issue under section 7 is

not whether the legislation strikes t he right balance between individ-

ual and social intere sts but whether it results in the deprivat ion of life,

liberty, or security of the person in a m anner that does not respect fun-

damental principles of just ice. The clai mant under section 7 should not

bear the burden of demonstrati ng that the state’s action is unjustif‌ied;

in other words, section 7 does not permit “a freest anding inquir y . . .

into whether a particular legislative measure ‘str ikes the right ba lance’

between 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

justif‌ied by the government under section 1 of the Charter. Neverthe-

less, the courts have ind icated t hat justif‌ications of section 7 violations

2 R v Malmo-Levine; R v Cain e, 2003 SCC 74, [2003] 3 SCR 571 at para 96 [Malmo-

Levine]; Charka oui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007]

1SCR 350 at para 21 [Charkaoui].