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

• Author: Robert J. Sharpe, Kent Roach
• Pages: 219-258

219

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 t he right to life, libert y and security of the person and

the right not t o be deprived t hereof except in accordance with the

principles of fund amental justice.

The section is cast in broad language and the scope of the guarantee

is potentially sig nif‌icant and far-reaching. In an early decision, the Su-

preme Court stated that the proce ss of elaborating the meaning of sec-

tion 7 would neces sarily be a gradual and case-by-case exercise.1 Thi s

is understandable, for the interpretation of section 7 raises diff‌icult

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

tal moral and social is sues and call for the courts to consider the scope

and limits of judicial rev iew under the Charter.

Section 7 has had a signif‌icant impact i n the criminal law context

where it has been held to extend importa nt procedural and substan-

tive guar antees to persons accused of crime. That aspect of section 7

is di scussed in chapter 14. This chapter considers t he impact of sec-

tion 7 outside the sphere of guarantees in the criminal process. Here

it is signif‌icant that section 7 of the Ch arter, unlike the due proce ss

protections of the American Bill of Rights, doe s not explicitly protect

property rights. Moreover, unli ke some other modern rights protec-

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

[Morgentaler].

THE CHARTER OF R IGHTS AND FR EEDOMS220

tion inst ruments, section 7 of the Charter does not explicitly protect

socio-economic right s 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 a re just and fair? Does section 7 protect 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 wide st sense. It is a basic tenet of our legal system that

one is at liberty to do a s one pleases unless const rained by some posi-

tive law. Yet ours is also a society governed by law and a society that

recognizes that laws, and hence constra ints on lib erty, are required to

preserve order and protect the weak a nd vulnerable. Doe s “security of

the person” ent ail the right to own property or the right to contract

for pr ivate 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 govern-

ment welfare schemes. Opponents of abortion have argued that abor-

tion denies the unborn of the right to “life,” while pro-choice advocates

contend that laws preventing abortion infringe a woman’s rights to “lib-

erty” and “securit y of the person.”

There is also conf‌lict about the sources of the pr inciples of funda-

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

of the justice system? O r ca n t hey be informed by changing stand ards

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

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

tal justice? How much of a consensus is required before a principle is

recognized as a principle 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 relation between

section 7 and section 1 of the Charter? Is section 7 of the Charte r 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 just if‌ied under section 1 affected t he

content of the section 7 rights both with respect to the def‌inition of the

rights to life, liberty a nd security of the person and with respect to t he

def‌inition of the principles of fundament al justice?

Life, Libert y, and Securit y of the Person 221

In thi s 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. A fter almost t hree decades of

litigation, the task of def‌ining the outer limits of “life, liberty and secur-

ity of t he person” as well as the “pr inciples of f undamental justice” is

still very much a work-in-progress.

A. THE REQUIREMENTS OF A SECTION 7

VIOL ATION

There are a number of steps in establishi ng a violation of section 7 of

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

falls w ithin the reference to “everyone” in section 7. This will be easy

in the context of natural persons, but not in the case of corporations or

other art if‌icial entities. Next, the Charter applicant must demonstrate

a violation of the right to life, liberty, or secur ity of the person. This

will be easy in the context of physical deprivations of liberty, but more

contentious in the case of other interest s. Demonstrating a v iolation of

the right to life, liberty, or security of the person, however, is insuf f‌i-

cient 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 contrary to the Charter guarante e. The

rights claimant must proceed to the f‌inal stage of analysis and show

that the denial of a r ight protected by section 7 is contrar y to the prin-

ciples of fundamental justice. The issue under section 7 is not whether

the legislat ion strikes the right balance between individual and social

interests, but whether it results in the deprivation of life, liberty, or

security of the per son in a manner that does not respect fundamental

principles of justice. The clai mant under section 7 should not be ar the

burden of demonstrating that t he state’s action is disproportionate and

not justif‌ied.2

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

it is st ill pos sible that the sect ion 7 v iolation could be justif‌ied by the

government under section 1 of the Charter. Nevertheless, the court s

have indicated that justif‌ications of section 7 violations w ill be rare.

The Supreme Court has observed that “a violation of section 7 w ill be

saved by sect ion 1 only i n case s arising out of exceptiona l conditions,

2 R. v. Malmo-Levine, [2003] 3 S.C.R. 571 at para. 96 [Malmo-Le vine]; Chark aoui v.

Canada (Citizenship and Immigratio n), [2007] 1 S.C.R. 350 at para. 21 [Charkaoui].