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

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 200-233

CHAP TER 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 r ight to life, liber ty and secur ity of the person and

the right not to be deprived t hereof except in accordance w ith the

principles of f undamental ju stice.

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 proces s of elaborating the meaning of sec-

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

is understandable, for the interpretation of section 7 raises d ifficult

questions. As we shall see, many of these questions i nvolve fundamen-

tal moral and socia l issues and call for the courts to consider the scope

and limits of judicia l 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 and substan-

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

discusse d in chapter 14. This chapter considers the impact of section

7 outside the sphere of guarantees in the criminal process. Here it is

significant th at section 7 of the Charter, unlike the due process protec-

1R. v. Morgentaler, [1988] 1 S.C.R. 30 at 51, 44 D.L.R. (4th) 385, Dickson C.J.C.

[Morgentaler].

200

Life, Liber ty, and Secur ity of the Person 201

tions of the American Bill of Rights, does not explicitly protect property

rights. Moreover, unlike some other modern rights protection instru-

ments, section 7 of the Charter does not explicitly protect s ocio-eco -

nomic rights such as the right to welfare or housing or health care.

As will be seen, however, section 7 still has an import ant and of-

ten controversial role to play outside of the cr iminal just ice context.

Should section 7 be narrowly interpreted to protect little more than

procedural fairnes s or does the requirement to respect t he “princ iples

of fundamental just ice” demand review of the substa ntive content of

legislation to ensure that all laws are just and fair? Does section 7 pro-

tect 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 libert y to do as one pleases unless constrained

by some positive law. Yet ours is also a society governed by law and

a society that recogni zes that laws, and hence constraints on liberty,

are required to preser ve 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 in surance? If so, section 7 could help

the “haves” in our society by sign ificantly constraining governmental

regulatory and redi stributive measure s. 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 extens ion of

government wel fare schemes. Opponent s of abortion have argued that

abortion denies the unbor n of the right to “life,” while pro-choice advo-

cates contend that laws preventing abortion infringe a woman’s rights

to “liberty” and “secur ity of the person.” There is also conflict about the

sources of the principles of fundamental justice. Are they on ly found

in the basic or tradit ional tenets of the justice system? Or ca n they be

informed by changi ng standards of domest ic and even international

justice? Is there a danger of judges reading t heir own views of good

policy into t he principles of fundament al justice?

In this chapter, we canvas s the way the courts h ave responded to

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

to be given in many contentious area s. After more than two decades of

litigation, the task of defini ng the outer limits of “life, libert y and secu-

rity of the person” as well as the “pr inciples of f undament al justice” is

still very much a work-in-progress.

the

charter of r ights and fr eedoms

202

A. THE REQUIREMENTS OF A SECTION 7

VIOL ATION

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 within the reference to “everyone” in section 7. This will

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

porations or other artificial entities. Next, the Charte r applicant must

demonstrate a violation of the right to life, liber ty, or security of the

person. This will be easy in the context of physical deprivations of

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

strating a violation of the r ight to life, liberty, or security of the per son

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

person convicted of a criminal offence and sentenced to jail suf fers a

loss of liberty. But loss of liberty, standing a lone, is not contrary to the

Charter guarantee. The rights claimant must proceed to the final stage

of analysis and show that the denial of a right protected by section 7 is

contrary to the principles of fund amental justice. If all three element s

of the section 7 violation have been established, it is still possible that

the section 7 violation could be just ified under section 1 of the Charter.

Nevertheless, the court s have indicated th at justifications of sect ion 7

violations will be rare. The Supreme Court recently observed that “a

violation of section 7 will be saved by section 1 only in cases arising

out of exceptional conditions, such as natura l disasters, the outbreak of

war, epidemics and the like.”2

1) E ver yone

The reference to “everyone” in section 7 of the Charter has been in-

terpreted not to include corporations. This make s sense given th at a

corporation does not enjoy rights to life, libert y, and security of the

person in the same sen se as a natural person.3 Howev er, it does conflict

2Suresh v. Canada, [2002] 1 S.C.R. 3, 208 D.L.R. (4th) 1 at para. 78 [Suresh], c itin g

Reference Re s. 9 4(2) of the Mot or Vehi cle Act (B.C.), [1985] 2 S.C.R. 486 at 518,

24 D.L.R. (4th) 536 [Re B.C. Motor Vehicle Act]; and Ne w Brunswick (Minister of

Health and Community Se rvices) v. G.( J.), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124

at para. 9 [New Bruns wick].

3Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927 at 1004, 58 D.L.R. (4th) 577 [Ir win

Toy]; Dywidag Systems Int ernational Canad a v. Zutphen Brothers Construct ion

Ltd., [1990] 1 S.C.R. 705, 6 8 D.L.R. (4th) 147; Br itish Columbia (Securities Com-

mission) v. Branch, [1995] 2 S.C.R. 3, 123 D.L.R. (4th) 462.