A. The Requirements of a Section 7 Violation

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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There are a number of steps in establishing a violation 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. Establishing this will be easy in the context of natural persons, but not in the case of corporations or other artificial entities. Next, the Charter applicant must demonstrate a violation of the right to life, liberty, or security of the person. Doing this will be easy in the context of physical deprivations of liberty, but more contentious in the case of other interests. Demonstrating a violation of the right 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 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 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 fundamental principles of justice. The claimant under section 7 should not bear the burden of demonstrating that the state’s action is disproportionate and unjustified: in other words, section 7 does not permit "a free-standing inquiry . . . into whether a particular legislative measure ‘strikes the right balance’ between individual and societal interests in general."2If all three elements of the section 7 violation have been established, it is still theoretically possible that the section 7 violation could be justified by the government under section 1 of the Charter. Nevertheless, the courts have indicated that justifications of section 7 violations will be rare and, in fact, the majority of the Court has never held that a violation of section 7 of the Charter was justified under section 1. The

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Supreme Court has observed that "a violation of section 7 will be saved by section 1 only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like."3In a more recent case, the Court stated:

The rights protected by section 7 - life, liberty, and security of the person - are basic to our conception of a free and democratic society, and hence are not easily overridden by competing social interests. It follows that violations of the principles of fundamental justice, specifically the right to a fair hearing, are difficult to justify under section 1. Nevertheless, the task may not be impossible, particularly in extraordinary circumstances where concerns are grave and the challenges complex.4In that case, the Court held that while the protection of intelligence relating to national security "undoubtedly constitutes a pressing and substantial objective,"5the government had failed to justify under section 1 the total denial of adversarial challenge to the intelligence that the government provided to the Court to support a non-citizen’s detention and possible deportation under a security certificate. In another recent case, the Court held that the government failed to justify limiting section 7 rights by requiring young offenders convicted of offences of serious violence to rebut a presumption in favour of an adult sentence and the lifting of a publication ban on their identity.6

1) Everyone

The reference to "everyone" in section 7 of the Charter has been interpreted not to include corporations. This view makes sense given that a corporation does not enjoy rights to life, liberty, and security of the person in the same sense as a natural person.7However, it does conflict with the interpretation of other sections of the Charter, such as freedom

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of expression and the right against unreasonable search and seizure, under which claims by corporations have been upheld.

The impact of the exclusion of corporations from the ambit of section 7 of the Charter is mitigated in a practical sense because the courts have allowed corporations to defend themselves in penal8and even civil proceedings9by arguing that a law violates the section 7 rights of natural persons and is therefore invalid. A legislature that wanted to insulate a law from section 7 review would thus have to make that law applicable only to corporations, something that is not commonly done.

The word "everyone" is not limited to citizens and includes "every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law."10A number of landmark section 7 cases have involved claims made by non-citizens.11In one recent case involving the extraterritorial application of the Charter to the disclosure of the fruits of interviews that Canadian officials conducted with Omar Khadr at Guantanamo Bay, Cuba, the Supreme Court seemed to base its holding that section 7 of the Charter imposes disclosure obligations on the government in part on the fact that Khadr is a Canadian citizen.12The effect of the mention of Khadr’s citizenship in this context is not clear, and in any event, it related to the extraterritorial application of the Charter. It is well established that non-citizens in Canada are protected under section 7’s reference to "everyone."

There may, however, be other limits on the meaning of "everyone." In holding that a fetus is not protected under Quebec’s Charter of Human Rights and Freedoms, the Supreme Court has hinted that a fetus is not included in the reference to "everyone" in section 7 of the Canadian Charter.13

2) Life, Liberty, and Security of the Person

Before it is even possible to determine whether the state has respected the principles of fundamental justice, an applicant under section 7 of the Charter must establish that his or her interest "falls within the ambit of section 7: ‘if no interest in life, liberty or security of the person

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is implicated, the section 7 analysis stops there.’"14The courts interpret life, liberty, and security of the person as three analytically distinct interests. They have largely taken a case-by-case approach rather than offering a comprehensive definition of what interests are protected by the rights to life, liberty, and security of the person.

a) The Right to Life

To date, the Supreme Court of Canada has not addressed the scope of the right to life. Even in a case dealing with the extradition of fugitives to face the death penalty, the Court concluded that the rights to liberty and security of the person were violated and that the lives of the fugitives "are potentially at risk."15Similarly, the Court found that section 7 was engaged in a case involving deportation of a refugee applicant to face the substantial risk of torture, by noting that "it is conceded that ‘everyone’ includes refugees and that deportation to torture may deprive a refugee of liberty, security and perhaps life."16Given the interest at stake, a risk to life may itself violate the right to life in section 7 of the Charter.

b) The Right to Liberty

The Supreme Court has been divided with respect to the scope of the right to liberty. Some judges, notably Wilson and La Forest JJ, were prepared to interpret the right to include matters involving the right to make fundamental personal decisions without state interference, such as where to live,17or whether to permit medical treatment for one’s children,18and how to educate them.19Other judges, most notably Lamer CJC, took a more restrictive approach that emphasized freedom from physical restraint by the state. In a 1995 case, he was prepared to restrict the scope of section 7 to

the conduct of the state when the state calls on law enforcement officials to enforce and secure obedience to the law, or invoke the law

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to deprive a person of liberty through judges, magistrates, ministers, board members etc.20A majority of the Supreme Court opted for the more generous approach in Blencoe v British Columbia (Human Rights Commission). Justice Bastarache (MCLACHLIN CJC, L’Heureux-Dubé, Gonthier, and Major JJ concurring) declared that "the liberty interest protected by section 7 of the Charter is no longer restricted to mere freedom from physical restraint."21This conclusion was qualified by a number of factors. First, Bastarache J indicated that "although an individual has the right to make fundamental personal choices free from state interference, such personal autonomy is not synonymous with unconstrained freedom."22

Second, on the facts of the case, he found that the rights to both liberty and security of the person were not violated by a thirty-month delay in processing a human rights complaint about sexual harassment. He commented: "[F]reedom from the type of anxiety, stress and stigma suffered by the respondent in this case should not be elevated to the stature of a constitutionally protected section 7 right."23Third, the authority of the pronouncement may be qualified by the fact that the four remaining judges did not decide the section 7 issue, holding that the Charter applicant was entitled to an independent administrative law remedy.

Moreover, most cases involving fundamental personal choices have arisen from the Charter claimant’s interaction with the justice system. The extent to which such a claim may arise outside the administration of justice is still unclear. In Goss...

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