Section Seven of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Seven 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, namely 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. 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 assistance
and public health care
. As such, it has proven to be a controversial provision in the Charter.
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.
Section 7 has not been interpreted to convey positive rights nor has it been interpreted to impose any positive obligations upon the government. The Supreme Court of Canada has not ruled out these alternatives, however.
, were dismissed in Borowski v. Canada (Attorney General)
due to mootness
), but life has been thoroughly discussed by the Supreme Court in the 1993 case Rodriguez v. British Columbia (Attorney General)
. 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.
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 case 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 United States
case law, but the Supreme Court of Canada 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
.
) to the mental state of the individual. (Blencoe v. B.C. (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 Committee
s 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. 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 (Attorney General)
(2005), some Supreme Court justices even considered Quebec
's ban on private health care
to breach security of the person, since delays in medical treatment could have physical and stressful consequences.
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. There has also been discussion within the Supreme Court and among academics as to whether security of the person guarantees some economic rights. 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 question
s.
and since the 1985 Supreme Court decision Re B.C. 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.
The following are some of the well established Principles of Fundamental Justice.
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)
This principle is violated when the government, in pursuing a "legitimate objective", uses "means" that unnecessarily and disproportionately interfere with an individual's rights. (R. v. Heywood
)
element. (Re B.C. Motor Vehicle Act
, R. v. Vaillancourt
)
For more serious crimes such as murder that impose a stigma as part of the conviction, the mental element must be proven on a "subjective" level. (R. v. Martineau
)
(1987), the Supreme Court found that government decisions to extradite people are bound by section 7. Moreover, it is possible that a potential punishment in the receiving country "shocks the conscience
" to the extent that the Canadian government would breach fundamental justice if they extradited people there, and thus put them at risk of something shocking. In determining what would shock the conscience, the Court said some elements of fundamental justice in Canada, such as the presumption of innocence
, could be seen as "finicky" and thus irrelevant to extradition. In contrast, the possibility of torture
would be shocking.
of the Charter.
"Full answer and defence" encompasses a number of things, including the right to counsel (also see section 10
), the right to examine witnesses, and most importantly, the right to full disclosure by the Crown (see R. v. Stinchcombe
, 1991).
the court held that the right to silence was a principle of fundamental justice. Statements of the accused cannot be achieved through police trickery and silence cannot be used to make any inference of guilt.
, 2008 SCC 25 http://scc.lexum.umontreal.ca/en/2008/2008scc25/2008scc25.html, the Court held that "young people are entitled to a presumption of diminished moral culpability" and so the Youth Criminal Justice Act cannot create a presumption of an adult sentence upon youths.
In R. v. Malmo-Levine, the Supreme Court
rejected the claim that an element of "harm
" was a required component of all criminal offences, which in the circumstances of the case would have removed marijuana
offences from Criminal law.
In R. v. DeSousa
, the Court had rejected the claim that there must be symmetry between all actus reus
and mens rea elements.
In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
, the Court rejected the claim that laws affecting children must be in their best interests
.
also contains rights to life and liberty under the Fifth Amendment
and the United States Constitution
guarantees those rights again under the Fourteenth Amendment
. In Canada before the Charter, the Canadian Bill of Rights
contained rights to life, liberty and security of the person, but all these other laws limit those rights through due process
rather than fundamental justice. Fundamental justice is read more substantively.
Another key difference is that the Fifth and Fourteenth US Amendments add the right to property
, and the Canadian Bill adds the right to "enjoyment of property." The fact that section 7 excludes a right contained in its sister laws is taken as significant, and thus rights to property are not even read into the rights to liberty and security of the person.
There have been calls for section 7 to protect property. In 1981 the Progressive Conservative Party
suggested that section 7 be extended to protect the "enjoyment of property." Some provincial governments, including that of Prince Edward Island
, as well as the New Democratic Party
, opposed the change. The NDP thought that if property rights were enshrined in the Charter, other economic rights should be added. In September 1982, after the Charter had been enacted, the government of British Columbia
approved of an unsuccessful amendment to section 7 that would protect property rights. See Unsuccessful attempts to amend the Canadian Constitution
for more information.
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
. There are three types of protection within the section, namely the right to life
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
, liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
, and security of the person. Denials
Denial of request
Denial of request is the refusal of one party to grant the request of another. Some acts that can be considered denial may include the refusal of a person or a group of people representing a company, organization, or government agency to provide what a client or one seeking to be a client has...
of these rights are constitutional only if the denials do not breach what is referred to as fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
.
This Charter
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
provision provides both substantive
Substantive rights
Substantive rights are basic human rights possessed by people in an ordered society and includes rights granted by natural law as well as the substantive law. Substantive rights involve a right to the substance of being human , rather than a right to a procedure to enforce that right, which is...
and procedural rights. It has broad application beyond merely protecting due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
in administrative proceedings and in the adjudicative context, and has in certain circumstances touched upon major national policy issues such as entitlement to social assistance
Welfare
Welfare refers to a broad discourse which may hold certain implications regarding the provision of a minimal level of wellbeing and social support for all citizens without the stigma of charity. This is termed "social solidarity"...
and public health care
Publicly-funded health care
Publicly funded health care is a form of health care financing designed to meet the cost of all or most health care needs from a publicly managed fund. Usually this is under some form of democratic accountability, the right of access to which are set down in rules applying to the whole population...
. 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. It does not, however, apply to corporations.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.
Section 7 has not been interpreted to convey positive rights nor has it been interpreted to impose any positive obligations upon the government. The Supreme Court of Canada has not ruled out these alternatives, however.
Life
First, there is the right to life, which stands generally as the basic right to be alive. It has had very little legal impact (arguments that the unborn have a right to life, which would have banned abortionAbortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
, were dismissed in Borowski v. Canada (Attorney General)
Borowski v. Canada (Attorney General)
Borowski v. Canada , [1989] 1 S.C.R. 342 is the leading Supreme Court of Canada decision on mootness of an appealed legal issue. The Court declined to decide whether the fetus had a right to life under sections 7 and 15 of the Canadian Charter of Rights and Freedoms...
due to mootness
Mootness
In American law, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law...
), but life has been thoroughly discussed by the Supreme Court in the 1993 case Rodriguez v. British Columbia (Attorney General)
Rodriguez v. British Columbia (Attorney General)
Rodriguez v. British Columbia [1993] 3 S.C.R. 519 is a landmark Supreme Court of Canada decision where the prohibition of assisted suicide was challenged as contrary to the Canadian Charter of Rights and Freedoms by a terminally ill mother, Sue Rodriguez...
. 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
Assisted suicide
Assisted suicide is the common term for actions by which an individual helps another person voluntarily bring about his or her own death. "Assistance" may mean providing one with the means to end one's own life, but may extend to other actions. It differs to euthanasia where another person ends...
. 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
Suicide is the act of intentionally causing one's own death. Suicide is often committed out of despair or attributed to some underlying mental disorder, such as depression, bipolar disorder, schizophrenia, alcoholism, or drug abuse...
; suicide would destroy life and thus be inherently harmful.
Liberty
Secondly, there is the right to liberty, which protects an individual's freedom to act without physical restraint (i.e., imprisonmentImprisonment
Imprisonment is a legal term.The book Termes de la Ley contains the following definition:This passage was approved by Atkin and Duke LJJ in Meering v Grahame White Aviation Co....
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
Dignity
Dignity is a term used in moral, ethical, and political discussions to signify that a being has an innate right to respect and ethical treatment. It is an extension of the Enlightenment-era concepts of inherent, inalienable rights...
and independence in matters that can be characterized as fundamentally or inherently personal." (R. v. Clay
R. v. Clay
R. v. Clay [2003] 3 S.C.R. 735, is a decision by the Supreme Court of Canada on the constitutionality of the prohibition to possess marijuana. The accused claimed that his section 7 Charter rights were violated...
, 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
Family
In human context, a family is a group of people affiliated by consanguinity, affinity, or co-residence. In most societies it is the principal institution for the socialization of children...
right or a union
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
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 case 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 United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
case law, but the Supreme Court of Canada 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
Strike action
Strike action, also called labour strike, on strike, greve , or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became important during the industrial revolution, when mass labour became...
as part of the members' liberty. The Court also stressed that strikes were socioeconomic
Socioeconomics
Socioeconomics or socio-economics or social economics is an umbrella term with different usages. 'Social economics' may refer broadly to the "use of economics in the study of society." More narrowly, contemporary practice considers behavioral interactions of individuals and groups through social...
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
Freedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
and liberty of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, because these are more specifically guaranteed under section 2
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
, the liberty to vote, as this is more specifically guaranteed by section 3
Section Three of the Canadian Charter of Rights and Freedoms
Section Three of the Canadian Charter of Rights and Freedoms is a section of the Charter that constitutionally guarantees all Canadian citizens the democratic right to vote in a general federal or provincial election and the right to be eligible for membership in the House of Commons or of a...
, and the liberty to move within, leave and enter Canada, as this is more specifically guaranteed by section 6
Section Six of the Canadian Charter of Rights and Freedoms
Section Six of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects the mobility rights of Canadian citizens, and to a lesser extent that of permanent residents. By mobility rights, the section refers to the individual practice...
.
Security of the person
Thirdly, there is the right to security of the person, which consists of rights to privacy of the body and its health and of the right protecting the "psychological integrity" of an individual. That is, the right protects against significant government-inflicted harm (stressStress (medicine)
Stress is a term in psychology and biology, borrowed from physics and engineering and first used in the biological context in the 1930s, which has in more recent decades become commonly used in popular parlance...
) to the mental state of the individual. (Blencoe v. B.C. (Human Rights Commission), 2000)
This right has generated significant case law, as abortion in Canada
Abortion in Canada
Abortion in Canada is not limited by the law . While some non-legal obstacles exist, Canada is one of only a few nations with no legal restrictions on abortion. Regulations and accessibility vary between provinces....
was legalized in R. v. Morgentaler
R. v. Morgentaler
R. v. Morgentaler [1988] 1 S.C.R. 30 was a decision of the Supreme Court of Canada wherein the abortion provision in the Criminal Code of Canada was found to be unconstitutional, as it violated a woman's right under section 7 of the Canadian Charter of Rights and Freedoms to "security of person"...
(1988) after the Supreme Court found the Therapeutic Abortion Committee
Therapeutic Abortion Committee
A Therapeutic Abortion Committee refers to a Canadian committee of three medical doctors who would decide whether an abortion fit an exemption to the Criminal Code of Canada, which only permitted lawful abortion if continuation of a pregnancy would cause a woman medical harm...
s 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. In Operation Dismantle v. The Queen
Operation Dismantle v. The Queen
Operation Dismantle v. The Queen [1985] 1 S.C.R. 441 is a decision by the Supreme Court of Canada where the court rejected a section 7 Charter challenge against the government for allowing the US government to test cruise missiles over Canadian territory....
(1985) cruise missile
Cruise missile
A cruise missile is a guided missile that carries an explosive payload and is propelled, usually by a jet engine, towards a land-based or sea-based target. Cruise missiles are designed to deliver a large warhead over long distances with high accuracy...
testing was unsuccessfully challenged as violating security of the person for risking nuclear war
Nuclear warfare
Nuclear warfare, or atomic warfare, is a military conflict or political strategy in which nuclear weaponry is detonated on an opponent. Compared to conventional warfare, nuclear warfare can be vastly more destructive in range and extent of damage...
. In Chaoulli v. Quebec (Attorney General)
Chaoulli v. Quebec (Attorney General)
Chaoulli v. Quebec [2005] 1 S.C.R. 791, was a decision by the Supreme Court of Canada where the Court ruled that the Quebec Health Insurance Act and the Hospital Insurance Act prohibiting private medical insurance in the face of long wait times violated the Quebec Charter of Human Rights and...
(2005), some Supreme Court justices even considered Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
's ban on private health care
Health care
Health care is the diagnosis, treatment, and prevention of disease, illness, injury, and other physical and mental impairments in humans. Health care is delivered by practitioners in medicine, chiropractic, dentistry, nursing, pharmacy, allied health, and other care providers...
to breach security of the person, since delays in medical treatment could have physical and stressful consequences.
Some people feel economic rights ought to be read into security of the person, as well as section 15
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
equality rights to make the Charter similar to the International Covenant on Economic, Social and Cultural Rights
International Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976...
. The rationale is that economic rights can relate to a decent standard of living
Standard of living
Standard of living is generally measured by standards such as real income per person and poverty rate. Other measures such as access and quality of health care, income growth inequality and educational standards are also used. Examples are access to certain goods , or measures of health such as...
and can help the civil rights flourish in a liveable environment. There has also been discussion within the Supreme Court and among academics as to whether security of the person guarantees some economic rights. 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 question
Political question
In American Constitutional law, the political question doctrine is closely linked to the concept of justiciability, as it comes down to a question of whether or not the court system is an appropriate forum in which to hear the case. This is because the court system only has authority to hear and...
s.
Principles of fundamental justice
All three rights can 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 justiceNatural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
and since the 1985 Supreme Court decision Re B.C. Motor Vehicle Act
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia 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
Search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
, guaranteed under section 8
Section Eight of the Canadian Charter of Rights and Freedoms
Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state...
, and against cruel and unusual punishments, under section 12
Section Twelve of the Canadian Charter of Rights and Freedoms
Section Twelve of the Canadian Charter of Rights and Freedoms, as part of the Charter and of the Constitution of Canada, is a legal rights section that protects an individual's freedom from cruel and unusual punishments in Canada. The section has generated some case law, including the essential...
, 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.
Arbitrariness
It is a principle of fundamental justice that laws should not be arbitrary. (R. v. Malmo-Levine) That is, the state cannot 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 (Attorney General))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)
Overbreadth
The "Principles of Fundamental Justice" require that means used to achieve a societal purpose or objective must be reasonably necessary.This principle is violated when the government, in pursuing a "legitimate objective", uses "means" that unnecessarily and disproportionately interfere with an individual's rights. (R. v. Heywood
R. v. Heywood
R. v. Heywood [1994] 3 S.C.R. 761 is a leading Supreme Court of Canada decision on the concept of fundamental justice in section seven of the Charter. The Court found that section 179 of the Criminal Code for vagrancy was overbroad and thus violated section 7 and could not be saved under section...
)
Requirement of Mens Rea
The "Principles of Fundamental Justice" require that criminal offences that have sentences involving prison must have a mens reaMens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
element. (Re B.C. Motor Vehicle Act
Re B.C. Motor Vehicle Act
Reference re Section 94 of the Motor Vehicle Act, [1985] 2 S.C.R. 486 was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act...
, R. v. Vaillancourt
R. v. Vaillancourt
R. v. Vaillancourt, [1987] 2 S.C.R. 636, 1987 SCC 78, is a landmark case from the Supreme Court of Canada on the constitutionality of criminal code offence of "constructive murder"...
)
For more serious crimes such as murder that impose a stigma as part of the conviction, the mental element must be proven on a "subjective" level. (R. v. Martineau
R. v. Martineau
R. v. Martineau [1990] 2 S.C.R. 633 is a leading Supreme Court of Canada case on the mens rea requirement for murder.- Background :One evening in February 1985, Patrick Tremblay and 15 year-old Mr. Martineau set out to rob a trailer owned by the McLean family in Valleyview, Alberta. Martineau was...
)
Shocks the conscience
In Canada v. SchmidtCanada v. Schmidt
Canada v. Schmidt, [1987] 1 S.C.R. 500, is a decision by the Supreme Court of Canada on the applicability of fundamental justice under the Canadian Charter of Rights and Freedoms on extradition...
(1987), the Supreme Court found that government decisions to extradite people are bound by section 7. Moreover, it is possible that a potential punishment in the receiving country "shocks the conscience
Shocks the conscience
Shocks the conscience is a phrase used as a legal standard in the United States and Canada. An action is understood to "shock the conscience" if it is perceived as manifestly and grossly unjust, typically by a judge.-United States:...
" to the extent that the Canadian government would breach fundamental justice if they extradited people there, and thus put them at risk of something shocking. In determining what would shock the conscience, the Court said some elements of fundamental justice in Canada, such as the presumption of innocence
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
, could be seen as "finicky" and thus irrelevant to extradition. In contrast, the possibility of torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
would be shocking.
Right to make full answer and defence
Anyone accused of a criminal charge has the right to know the case against them and put forward a defence. In addition to being a principle of fundamental justice, this right is also protected by the right to a fair trial under section 11(d)Section Eleven of the Canadian Charter of Rights and Freedoms
Section Eleven of the Canadian Charter of Rights and Freedoms is the section of the Canadian Constitution's Charter of Rights that protects a person's legal rights in criminal and penal matters. This includes both criminal as well as regulatory offences, as it provides rights for those accused by...
of the Charter.
"Full answer and defence" encompasses a number of things, including the right to counsel (also see section 10
Section Ten of the Canadian Charter of Rights and Freedoms
Section Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test...
), the right to examine witnesses, and most importantly, the right to full disclosure by the Crown (see R. v. Stinchcombe
R. v. Stinchcombe
R. v. Stinchcombe, [1991] 3 S.C.R. 326 is a landmark Supreme Court of Canada decision on the disclosure of evidence in a trial and is considered by most to be one of the most significant criminal law cases of the decade...
, 1991).
Right to silence
In R. v. HebertR. v. Hebert
R. v. Hebert [1990] 2 S.C.R. 151 is the leading Supreme Court of Canada decision on an accused's right to silence under section seven of the Canadian Charter of Rights and Freedoms.-Background:...
the court held that the right to silence was a principle of fundamental justice. Statements of the accused cannot be achieved through police trickery and silence cannot be used to make any inference of guilt.
Moral culpability for youths
In R. v. D.B.R. v. D.B.
R. v. D.B., 2008 SCC 25 is a constitutional law decision of the Supreme Court of Canada wherein a split Court held 5-4 that "presumptive offences", offences where the offender is prosecuted as an adult, found in the Youth Criminal Justice Act is unconstitutional for violating Section Seven of the...
, 2008 SCC 25 http://scc.lexum.umontreal.ca/en/2008/2008scc25/2008scc25.html, the Court held that "young people are entitled to a presumption of diminished moral culpability" and so the Youth Criminal Justice Act cannot create a presumption of an adult sentence upon youths.
Rejected principles
Throughout the development of fundamental justice, petitioners have suggested many principles that the Courts have rejected for not being sufficiently fundamental to justice.In R. v. Malmo-Levine, the Supreme Court
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
rejected the claim that an element of "harm
HARM
HARM or H.A.R.M. may refer to:* AGM-88 HARM, a high-speed anti-radiation missile* Historic Aircraft Restoration Museum, a museum in Creve Coeur, Missouri, United States...
" was a required component of all criminal offences, which in the circumstances of the case would have removed marijuana
Cannabis (drug)
Cannabis, also known as marijuana among many other names, refers to any number of preparations of the Cannabis plant intended for use as a psychoactive drug or for medicinal purposes. The English term marijuana comes from the Mexican Spanish word marihuana...
offences from Criminal law.
In R. v. DeSousa
R. v. DeSousa
R. v. DeSousa [1992] 2 S.C.R. 944, is the Supreme Court of Canada case where the Court determined the Constitutionally required level for mens rea for the charge of "unlawfully causing bodily harm". The case is one of a series of cases including R. v. Hundal and R. v...
, the Court had rejected the claim that there must be symmetry between all actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
and mens rea elements.
In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)
Canadian Foundation for Children, Youth and the Law v. Canada, [2004] 1 S.C.R. 76, 2004 SCC 4 - known also as the spanking case - is a leading Charter decision of the Supreme Court of Canada where the Court upheld section 43 of the Criminal Code of Canada that allowed for a defence for assaulting...
, the Court rejected the claim that laws affecting children must be in their best interests
Best interests
Best interests or best interests of the child is the doctrine used by most courts to determine a wide range of issues relating to the well-being of children. The most important of these issues concern questions that arise upon the divorce or separation of the children's parents...
.
Comparison with other human rights instruments
The United States Bill of RightsUnited States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
also contains rights to life and liberty under the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
and the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
guarantees those rights again under the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. In Canada before the Charter, the Canadian Bill of Rights
Canadian Bill of Rights
The Canadian Bill of Rights is a federal statute and bill of rights enacted by Prime Minister John Diefenbaker's government on August 10, 1960. It provides Canadians with certain quasi-constitutional rights in relation to other federal statutes...
contained rights to life, liberty and security of the person, but all these other laws limit those rights through due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
rather than fundamental justice. Fundamental justice is read more substantively.
Another key difference is that the Fifth and Fourteenth US Amendments add the right to property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
, and the Canadian Bill adds the right to "enjoyment of property." The fact that section 7 excludes a right contained in its sister laws is taken as significant, and thus rights to property are not even read into the rights to liberty and security of the person.
There have been calls for section 7 to protect property. In 1981 the Progressive Conservative Party
Progressive Conservative Party of Canada
The Progressive Conservative Party of Canada was a Canadian political party with a centre-right stance on economic issues and, after the 1970s, a centrist stance on social issues....
suggested that section 7 be extended to protect the "enjoyment of property." Some provincial governments, including that of Prince Edward Island
Prince Edward Island
Prince Edward Island is a Canadian province consisting of an island of the same name, as well as other islands. The maritime province is the smallest in the nation in both land area and population...
, as well as the New Democratic Party
New Democratic Party
The New Democratic Party , commonly referred to as the NDP, is a federal social-democratic political party in Canada. The interim leader of the NDP is Nycole Turmel who was appointed to the position due to the illness of Jack Layton, who died on August 22, 2011. The provincial wings of the NDP in...
, opposed the change. The NDP thought that if property rights were enshrined in the Charter, other economic rights should be added. In September 1982, after the Charter had been enacted, the government of British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
approved of an unsuccessful amendment to section 7 that would protect property rights. See Unsuccessful attempts to amend the Canadian Constitution
Unsuccessful attempts to amend the Canadian Constitution
Since the Constitution of Canada was patriated, in 1982, only ten minor Amendments to the Constitution of Canada have been passed. There have, however, been a number of unsuccessful attempts to amend the Constitution under the new amending formula....
for more information.
External links
- Canlii.org section 7 digest
- Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter in over 20 languages