Section 7 of the Canadian Charter of Rights and Freedoms

Section 7 of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section: the right to life, liberty and security of the person. Denials of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice.

This Charter provision provides both substantive and procedural rights.Suresh v. Canada (Minister of Citizenship and Immigration), 1 S.C.R. 3, 2002 SCC 1. It has broad application beyond merely protecting due process in administrative proceedings and in the adjudicative context, and has in certain circumstances touched upon major national policy issues such as entitlement to social assistanceGosselin v. Quebec (Attorney General), 4 S.C.R. 429, 2002 SCC 84. and public health care.Chaoulli v. Quebec (Attorney General), 1 S.C.R. 791, 2005 SCC 35 As such, it has proven to be a controversial provision in the Charter.

Text Under the heading of "Legal Rights", the section states:

Application The wording of section 7 says that it applies to "everyone". This includes all people within Canada, including non-citizens.Singh v. Minister of Employment and Immigration, 1 S.C.R. 177. It does not, however, apply to corporations.Irwin Toy Ltd. v. Quebec (Attorney General), 1 S.C.R. 927.

Section 7 rights can also be violated by the conduct of a party other than a Canadian government body. The government need only be a participant or complicit in the conduct threatening the right, where the violation must be a reasonably foreseeable consequence of the government actions.United States v. Burns, 1 S.C.R. 283, 2001 SCC 7.

Section 7 has not been interpreted to convey positive rights nor has it been interpreted to impose any positive obligations upon the government. However, the Supreme Court of Canada has not ruled out these alternatives.

Life

First, there is the right to life, which stands generally as the basic right to be alive. Life has been thoroughly discussed by the Supreme Court in the 1993 case Rodriguez v British Columbia (AG). In that case, the Court denied that the section 7 right to bodily control could trump the right to life and thereby justify assisted suicide. As the Court wrote, it was a common societal belief that "human life is sacred or inviolable", and therefore security of the person itself could not include a right to suicide; suicide would destroy life and thus be inherently harmful.

However, the Supreme Court under Chief Justice Beverley McLachlin has unanimously reversed this decision in Carter v Canada (AG). The Criminal Code provision imposing a blanket ban on assisted suicide was struck down for overbreadth, as it also impacted those with the capacity to provide legitimate consent. Bill C-14 was passed in June 2016 in response to this decision.

Liberty

Secondly, there is the right to liberty, which protects an individual's freedom to act without physical restraint (i.e., imprisonment would be inconsistent with liberty unless it is consistent with fundamental justice). However, the right has been extended to include the power to make important personal choices. The court described it as "[touching] the core of what it means to be an autonomous human being blessed with dignity and independence in matters that can be characterized as fundamentally or inherently personal". (R v Clay, 2003) That is, the concept extends beyond physical restraint by the government as it goes to the core of the human experience.

The right to choice is probably an individual right only, as opposed to also being a family right or a union right, however the rights are between you and the government and not between you and a member of your family. In the 1995 Supreme Court decision B (R) v Children's Aid Society, in which two parents attempted to block a certain treatment for their child on religious grounds, it was argued that the personal choice aspect of liberty guaranteed family privacy. This argument drew from American case law, but the Supreme Court pointed out section 7 of the Charter contains individual rights, and hence there cannot be family rights. Still, mindful that there was still choices involved in the family situation, the Supreme Court split on whether liberty rights were infringed. Likewise, in I.L.W.U. v. The Queen (1992), the Supreme Court stressed the individual nature of section 7 to deny unions had a right to strike as part of the members' liberty. The Court also stressed that strikes were socioeconomic matters that did not involve the justice system, and section 7 was concentrated on the justice system.

Various liberties not covered by the section 7 right to liberty include religious liberty and liberty of speech, because these are more specifically guaranteed under section 2, the liberty to vote, as this is more specifically guaranteed by section 3, and the liberty to move within, leave and enter Canada, as this is more specifically guaranteed by section 6.Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, page 980.

Security of the person

Third, there is the right to security of the person, which consists of rights to privacy of the body and its healthHogg, 981. and of the right protecting the "psychological integrity" of an individual. That is, the right protects against significant government-inflicted harm (stress) to the mental state of the individual. (Blencoe v British Columbia (Human Rights Commission), 2000)

This right has generated significant case law, as abortion in Canada was legalized in R v Morgentaler (1988) after the Supreme Court found the Therapeutic Abortion Committees breached women's security of person by threatening their health. Some judges also felt control of the body was a right within security of the person, breached by the abortion law. However, in R v Levkovic, 2013 SCC 25, the Supreme Court found that "security of the person" could not be used to justify a mother's failure to report a stillbirth.

In Operation Dismantle v The Queen (1985), cruise missile testing was unsuccessfully challenged as violating security of the person for risking nuclear war.

In Chaoulli v Quebec (AG) (2005), the majority of Supreme Court justices declared Quebec's ban on private health care to breach security of the person, since delays in medical treatment can result in serious physical pain, or even death.

Some people feel economic rights ought to be read into security of the person, as well as section 15 equality rights to make the Charter similar to the International Covenant on Economic, Social and Cultural Rights. The rationale is that economic rights can relate to a decent standard of living and can help the civil rights flourish in a liveable environment.Lugtig, Sarah and Debra Parkes, "Where do we go from here?" Herizons, Spring 2002, Vol. 15 Issue 4, page 14. There has also been discussion within the Supreme Court and among academics as to whether security of the person guarantees some economic rights.

While some people feel economic rights ought to be included, jurisprudence in this area appears not to support this view. In 2003, the Supreme Court ruled that, "The ability to generate business revenue by one's chosen means is not a right that is protected under s. 7 of the Charter."Siemens v. Manitoba (Attorney General), 1 S.C.R. 6, 2003 SCC 3, at para 47. In 2004, Blair JA, writing for the Court of Appeal for Ontario in Mussani v College of Physicians and Surgeons of Ontario noted that "the weight of authority is that there is no constitutional right to practise a profession unfettered by the applicable rules which and standards which regulate that profession", before going on to conclude that the revocation of Mr. Mussani's licence to practice medicine did not deprive him of life, liberty or the security of his person.Mussani v College of Physicians and Surgeons of Ontario (2004), 74 OR (3d) 1 at para 42. The courts have also held that "salary or compensation (in whatever form they may take), are in my view a purely economic right, and are not protected by section 7".Clitheroe v Hydro One Inc (2009), 96 OR (3d) 203 at para 77 (SC), aff'd 2010 ONCA 458, leave to appeal ref'd SCCA No 316.

Theoretically, security of the person would be breached if the government limits a person's ability to make an income, by denying welfare, taking away property essential to one's profession, or denying licenses. However, section 7 is primarily concerned with legal rights, so this reading of economic rights is questionable. Many economic issues could also be political questions.Hogg, 983.

Principles of fundamental justice

All three rights may be compromised in the cases where the infringing law is in "accordance with the principles of fundamental justice". That is, there are core values within the justice system that must prevail over these rights for the greater good of society. These include natural justice and since the 1985 Supreme Court decision Re BC Motor Vehicle Act they also include substantive guarantees, including rights guaranteed by the other legal rights in the Charter (i.e., rights against unreasonable search and seizure, guaranteed under section 8, and against cruel and unusual punishments, under section 12, are part of fundamental justice under section 7 as well). Other "Principles" are determined by the court and form the basis of the Canadian legal system.

it must be a legal principle about which there is sufficient societal consensus that it is fundamental to the way in which the legal system should fairly operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty, or security of the person. (R v Malmo-Levine, 2003)

The following are some of the well established Principles of Fundamental Justice.

Established principles

Arbitrariness It is a principle of fundamental justice that laws should not be arbitrary. (R v Malmo-Levine) That is, the state may not limit an individual's rights where "it bears no relation to, or is inconsistent with, the objective that lies behind [it]". (Rodriguez v British Columbia (AG))

Vagueness The "Principles of Fundamental Justice" require laws to have a clear and understandable interpretation so as to properly define the rule or offence.

A law is unconstitutionally vague if it does not have clarity enough to create "legal debate". There must be clarity of purpose, subject matter, nature, prior judicial interpretation, societal values, and related provisions. This does not prevent the use of broadly defined terms so long as societal objectives can be gleaned from it. (Ontario v Canadian Pacific Ltd, 1995) In R v Nova Scotia Pharmaceutical Society, for example, a statute which made it illegal to "unduly" prevent or lessen competition was upheld. Although the wording was undeniably open-ended and uncertain, the concept of undue interference with competition was deemed sufficient to enable legal debate on the subject.

Overbreadth The "Principles of Fundamental Justice" require that means used to achieve a societal purpose or objective must be reasonably necessary.

"Overbreadth analysis looks at the means chosen by the state in relation to its purpose. If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason." (R v Heywood at para 49)

Gross disproportionality Gross disproportionality describes state actions or legislative responses to a problem that are so extreme as to be disproportionate to any legitimate government interest (R v Malmo-Levine at para 143)

Requirement of mens rea