The Significance of Section 7

• Author: Hamish Stewart
• Pages: 371-378

371

CHAPTER 7

THE SIGNIFICANCE

OFSECTION 7

Section 7 has proved to be one of the most fertile, even protean, sections

of the Charter, as its very general language has made it the source for

numerous constitutional claims that might be diff‌icult to assert under

other sections of the Charter. The Supreme Court of Canada’s early deter-

mination that the principles of fundamental justice included both princi-

ples of procedural fairness and principles of substantive justice1 opened

up grounds for challenging state action that would otherwise have been

immune to review on constitutional or administrative law grounds.

Some of the Court’s most dramatic interventions in Canadian law — its

invalidation of the abortion prohibition in the Criminal Code,2 its consti-

tutionalization of basic principles in criminal law,3 its foray into health

care policy,4 its interventions into the criminal law governing sex work5

and medically assisted dying6— were made possible by its power to

review laws for compliance with substantive principles of justice. Given

the reluctance of the Court to recognize a section 1 limit on a section 7

right and the hesitancy of legislatures to use the section 33 override to

1 Re BC Motor Vehicle Act, [1985] 2 SCR 486 [Motor Vehicle Reference], and see

Chapter 3.

2 R v Morgentaler, [1988] 1 SCR 30 [Morgentaler].

3 Motor Vehicle Reference, above note 1; R v Martineau, [1990] 2 SCR 633; R v Ruzic,

2001 SCC 24.

4 Chaoulli v Quebec (AG), 2005 SCC 35.

5 Canada (Attorne y General) v Bedford, 2013 SCC 72.

6 Carter v Canada (Attorne y General), 2015 SCC 5 [Carter].