Canadian Criminal Procedure and Practice/Pre-Trial Matters/Challenging Legislation

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Section 7: Life, Liberty and Security of Person[edit | edit source]

Section 7 of the Charter protects an individual's autonomy and personal legal rights from actions of the government in Canada.

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

7. 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.

There are three types of protection within the section:

  • the right to life,
  • the right to liberty, and
  • the right to security of the person.

Denial of these rights only result in a breach if they breach "fundamental justice". A remedy can only be achieved if the breach cannot be saved under s. 1 of the Charter.(see Section 1, section below)

In the section, "everyone" refers to all people within Canada, including non-citizens.[1] However, it does not apply to corporate entities.[2]

The right to liberty 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). 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."[3]

The right to security of the person consists of rights to privacy of the body and its health[4] 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.[5]

  1. ↑ Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 SCR 177
    Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), [2002] 1 SCR 3
  2. ↑ Irwin toy ltd. v. Quebec (Attorney general), 1989 CanLII 87 (SCC), [1989] 1 SCR 927
  3. ↑ R. v. Clay, 2003 SCC 75 (CanLII), [2003] 3 SCR 735
  4. ↑ Hogg, Constitutional Law of Canada. 2003 Student Ed. Scarborough, Ontario: Thomson Canada Limited, 2003, 981.
  5. ↑ Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 SCR 307

Section 7: Principles of Fundamental Justice[edit | edit source]

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 justice and substantive guarantees,[1] including rights guaranteed by the other legal rights in the Charter (i.e., rights against unreasonable search and seizure, guaranteed under section 8 of the Charter, 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."[2]

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

Arbitrariness[edit | edit source]

It is a principle of fundamental justice that laws should not be arbitrary.[3] 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]".[4]

Vagueness[edit | edit source]

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.[5]

Overbreadth[edit | edit source]

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. [6]

Requirement of Mens Rea[edit | edit source]

The "Principles of Fundamental Justice" require that criminal offences that have sentences involving prison must have a mens rea element.[7] 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.[8]

Shocks the conscience[edit | edit source]

In Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 SCR 500, 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.

Right to make full answer and defence[edit | edit source]

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) 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.[9]

Right to Silence[edit | edit source]

In R. v. Hebert 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[edit | edit source]

In R. v. D.B. 2008 SCC 25 (CanLII), [2008] 2 SCR 3, the Court held that "young people are entitled to a presumption of diminished moral culpability"[10] and so the Youth Criminal Justice Act cannot create a presumption of an adult sentence upon youths.

Rejected principles[edit | edit source]

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 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.

  1. ↑ first suggested in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 SCR 486
  2. ↑ R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74 (CanLII), [2003] 3 SCR 571
  3. ↑ R. v. Malmo-Levine
  4. ↑ Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 SCR 519
  5. ↑ Ontario v. Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 SCR 1031
  6. ↑ R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 SCR 761
  7. ↑ See Re B.C. Motor Vehicle Act
    R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636
  8. ↑ R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 SCR 633
  9. ↑ R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326
  10. ↑ D.B. at para. 70

Section 1: Justifiable Limitation of Rights[edit | edit source]

Under the heading of "Guarantee of Rights and Freedoms", section 1 of the Canadian Charter of Rights and Freedoms states:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.


This provision is also known as the "reasonable limits clause" or "limitations clause", as it legally allows the government to limit an individual's Charter rights.

Prescribed by Law[edit | edit source]

The limitations on rights must be "prescribed by law". This refers to the requirement that the limitation on rights be the result of some conduct of a government or its agents following some accessible and intelligible law.

A law will be invalid where it is too vague as "where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances".[1]

  1. ↑ Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927

Oakes Test[edit | edit source]

The test to determine if the purpose of the law is demonstrably justifiable in a free and democratic society is known as the "Oakes Test".[1]

The test is applied once the claimant has proven that one of the provisions of the Charter has been violated.

The onus is on the Crown to pass the Oakes test. A violation of a right can only be justified where the following elements are made out on a balance of probabilities:

  1. There must be a pressing and substantial objective
  2. The means must be proportional
    1. The means must be rationally connected to the objective
    2. There must be minimal impairment of rights
    3. There must be proportionality between the infringement and objective

Pressing and Substantial Objective[edit | edit source]

Minimal Impairment[edit | edit source]

Rational Connection[edit | edit source]

Proportionality[edit | edit source]

See Also[edit | edit source]

  1. ↑ R. v. Oakes [1986] 1 S.C.R. 103
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