The Significance of Section 7

• Author: Hamish Stewart
• Profession: Faculty of Law, University of Toronto
• Pages: 307-314

307

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 de-

termination that the principles of fundamental justice included both

principles 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 inter ventions in C anadian

law — its invalidation of the abort ion prohibition in the Criminal Code,2

its constitutionalization of basic principles in criminal law,3 its foray

into health care policy4 — were made possible by the power to review

laws for compliance with substantive principles of justice. Given the

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

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

to immunize legislation from Charter review, the stakes in a section 7

challenge are high indeed. A succes sful claim that a statute violates sec-

tion 7 generally leads to the invalidation of the statute; the legislative

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.