The Significance of Section 7

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

307

CHA PTER 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 langu age has made it the source for

numerous constitutional claim s that might be diff‌icult to assert under

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

termination th at the principles of fundamental just ice included both

principles of procedural fair ness and principles of substantive just ice1

opened up grounds for challenging state action th at would otherwise

have been immune to review on constitutiona l 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 sect ion 1 limit on a section 7

right and the reluctance of legislature s to use the section 33 override

to immunize legisl ation 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.