Dear Sir or Madam:
Today we write to you regarding section 7 of the Canadian Charter of Rights and Freedoms. Section 7 has had profound impact on Canadian jurisprudence and continues to protect individuals from undue harm. The section’s fundamental goal is to protect individuals from undue state interference in their lives and allow them to make decisions with autonomy. Today’s post will highlight the parameters of s. 7 set out by the Supreme Court of Canada.
Section 7 of the Charter states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”1 A plain reading of this section guarantees individuals three fundamental freedoms that cannot be infringed upon unless they are in accordance with fundamental justice. In order to fully understand s. 7 the courts needed to interpret what fundamental justice means. We’ll discuss each facet of s. 7, beginning with the right to liberty.
The Supreme Court determined in Re BC Motor Vehicle Act that absolute liability offences carrying a punishment of imprisonment violates the right to liberty.2 In coming to this decision, the Court had to ascertain the meaning of fundamental justice to see whether or not mandatory prison sentences were in accordance with fundamental justice. The court determined that absolute liability, where the available punishment is imprisonment, offends the principles of fundamental justice.3 Essentially, imprisonment by absolute liability would arbitrarily detain individuals without requiring the proper requisite intention to commit the offence. Justice Laskin affirmed that it was not imperative that courts utilize the same method of interpreting fundamental justice so long as they secure full Charter protection for individuals.4 Further, the principles of fundamental justice do not carry one “single, incontrovertible meaning”5 Rather, the meaning can change based on the nature of the offence and the infringement on s. 7.
Canadian courts have been prudent in outlining situations where s. 7 applies. The Supreme Court focused on the right to liberty in Re BC MVA because the individual was subjected to physical imprisonment. Where a person is physically detained or imprisoned, their liberty is at risk. Courts have also determined that the right to liberty includes the freedom to make fundamental life choices without interference from the state.6
The next aspect of s. 7, security of the person, is engaged when there is “state interference with bodily integrity and serious state imposed psychological stress.”7 The most notable case where this branch of s. 7 has been applied is in R v Morgentaler. The Supreme Court in this case struck down procedural requirements for therapeutic abortions.8 The procedural requirements interfered with both bodily integrity and psychological stress; due to limited access to state approved abortion services.9
The last branch of s. 7 of the Charter is the right to life. This prong has recently become a contentious topic in both the legal and media realms alike. The right to life has most notably been highlighted in cases surrounding physician-assisted suicide. Suicide has historically been understood as a way for an individual to escape painful life-circumstances or illness.10 Physician-assisted suicide is premised on the same principles, but occurs when a patient requests professional medical assistance to enable the suicide through lethal drug treatments.11 The Supreme Court recently legalized physician-assisted suicide in Carter v. Canada (Attorney General). The majority found that an absolute bar on assisted dying created a “duty to live, rather than a right to life.”12 Further, the law demands that an individual’s choice to end their life must be respected in certain circumstances.13 The majority decision in Carter was met with contention and parliament recently applied for a six-month extension to amend the current assisted suicide legislation.14
Check back tomorrow when we discuss the s. 15 equality rights. Although we aimed to cover most of the notable sections in the Charter, some readers may notice s. 11 is missing. Section 11 regulates the powers law enforcement has once a person has been formally charged with an offence. Often in criminal cases both ss. 7 and 11 will be mentioned because liberty is at stake once a person has been formally charged. We at the Dominion can assure you the omittance of s. 11 from today’s discussion was a purposeful choice. For those interested in protections granted by s. 11, we will be covering this in upcoming weeks as the Vader case (and potential mistrial) continues to unfold. Until then, we hope you leave this post feeling confident that state interference in your life has definite limits.
Your Humble and Obedient Servants,
1 Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
2  2 SCR 486 at 492, 24 DLR (4th) 536 [Re BC MVA].
3 Ibid at 502.
4 Ibid at 499.
5 Ibid at 501.
6 Madam Justice Bertha Wilson, “Will Women Judges Really Make A Difference?” (1990) 28:3 Osgoode Hall LJ, 507 at 516.
7  1 SCR 30 at 32, 26 OAC 1.
8 Ibid at 71.
9 Ibid at 71.
10 Robert F Weir, Physician-Assisted Suicide, (Bloomington: Indiana University Press, 1997) at vii.
11 Ibid at viii.
12 2015 SCC 5 at para 63,  1 SCR 331.
13 Ibid at para 63.
14 See Carter v Canada (Attorney General), 2016 SCC 4, 394 DLR (4th) 1.