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

• Author: Hon. Robert J. Sharpe, Kent Roach
• Pages: 230-273

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CHA PTER 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, 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 gradual and case-by-case exercise.1 This

approach is understandable, for the interpretation of section 7 rai ses

diff‌icult questions. As we sha ll see, many of these questions involve

fundamental moral and so cial 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 and substan-

tive guarantees to persons accused of crime. That aspect of sect ion 7

is discussed in Chapter 14. Thi s chapter considers the impact of sec-

tion 7 outside the sphere of guarantees in t he 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

property rights. Moreover, unlike some other modern right s protection

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

taler].

Life, Libert y, and Security of t he Person and the P rinciples of Fun damental Ju stice 231

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, 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 respect the “principles of funda-

mental justice” demand rev iew of the substantive content of legi slation

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 positive 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 “secu rity of the person” entail the

right to own property or the r ight to contract for private health insur-

ance? If so, section 7 could help the “haves” in our society by signif‌icant-

ly constraining governmental regulatory and redist ributive measures.

Does “security of the per son” guar antee 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 advocates contend that laws preventing abortion

infringe a woman’s rights to “libert y” 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 before a pri nciple

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 t hat 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 w ith respect to the

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

with respect to the def‌i nition 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

THE

CHARTER OF R IGHTS A ND FREEDOMS

232

to be given in many contentious areas. A fter 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 fund amental justice” is still very

much a work-in-progress.

A. THE REQUIR EMENTS 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. Establishi ng

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 interests.

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 crimi nal 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 pr inciples of f undamental 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 m anner that

does not respect fundamental principles of justice. The claimant under

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

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

does not permit “a free-standi ng 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 se ction 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 Char ter. Nevertheless,

the courts have indicated t hat justif‌ications of section 7 violations w ill

be rare and, in fact, the majority of the Court has never held that a

violation of section 7 of the Charter wa s justif‌ied under section 1. The

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].