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Charter of Rights - Section 7

Well this morning I have been reading the Canadian Constitution, looking for the rights that I have or do not have.

This is what I found.

Section 7 also protects a sphere of personal autonomy involving “inherently private choices” that go to the “core of what it means to enjoy individual dignity and independence” (Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 at paragraph 66; Association of Justice Counsel v. Canada (Attorney General), [2017] 2 S.C.R. 456 at paragraph 49). Where state compulsions or prohibitions affect such choices, s. 7 may be engaged (A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, at paragraphs 100-102; Blencoe, supra at paragraphs 49-54; Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6 at paragraph 45) This aspect of liberty includes the right to refuse medical treatment (A.C., supra, at paragraphs 100-102, 136) and the right to make “reasonable medical choices” without threat of criminal prosecution: R. v. Smith, [2015] 2 S.C.R. 602 at paragraph 18. It may also include the ability to choose where one intends to live (Godbout, supra), as well as a protected sphere of parental decision-making for parents to ensure their children's well-being, e.g., a right to make decisions concerning a child's education and health (B.(R.), supra, at paragraph 80). It does not, however, encompass lifestyle choices such as the smoking of marihuana (R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571 at paragraphs 86-87; R. v. Clay, [2003] 3 S.C.R. 735 at paragraph 32). Conditions of employment requiring employees to be on standby duty, and therefore less available to their families for several weeks a year, do not engage the s. 7 liberty interest (Association of Justice Counsel, supra at paragraph 51).

(iii) Right to security of the person

Security of the person is generally given a broad interpretation and has both a physical and psychological aspect. The right encompasses freedom from the threat of physical punishment or suffering (e.g., deportation to a substantial risk of torture) as well as freedom from such punishment itself (Singh, supra at 207; Suresh, supra, at paragraphs 53-55). It is also engaged where police use force to effect an arrest (Fleming, supra, at paragraph 65).

Security of the person is not engaged, however, by the determination of exclusion from refugee protection because the potential risks to health and safety are too remote given the availability of further proceedings prior to removal in which section 7 interests will be considered (Febles v. Canada (Citizenship and Immigration), [2014] 3 S.C.R. 431 at paragraph 67; B010 v. Canada (Citizenship and Immigration), [2015] 3 S.C.R. 704 at paragraph 75).

Security of the person includes a person’s right to control his/her own bodily integrity. It will be engaged where the state interferes with personal autonomy and a person's ability to control his or her own physical or psychological integrity, for example by prohibiting assisted suicide or regulating abortion or imposing unwanted medical treatment (R. v. Morgentaler, [1988] 1 S.C.R. 30 at 56; Carter, supra; Rodriguez, supra; Blencoe, supra at paragraph 55; A.C., supra, at paragraphs 100-102). Where a criminal prohibition forces a person to choose between a legal but inadequate treatment and an illegal but more effective choice, the law will infringe security of the person (Smith, supra, at paragraph 18).

Security of the person will be engaged where state action has the likely effect of seriously impairing a person’s physical or mental health (R. v. Monney, [1999] 1 S.C.R. 652 at paragraph 55; Chaoulli, supra at paragraphs 111-124 and 200; R. v. Parker, 49 O.R. (3d) 481 (C.A.)). State action that prevents people engaged in risky but legal activity from taking steps to protect themselves from the risks can also implicate security of the person (Bedford, supra, at paragraphs 59-60, 64, 67, 71).

In addition, the right is engaged when state action causes severe psychological harm to the individual (G.(J.), supra at paragraph 59; Blencoe, supra at paragraph 58; K.L.W., supra, at paragraphs 85-87). To constitute a breach of one's psychological security of the person, the impugned action must have a serious and profound effect on the person’s psychological integrity and the harm must result from the state action (Blencoe, supra at paragraphs 60-61; G.(J.), supra; K.L.W., supra. The psychological harm need not necessarily rise to the level of nervous shock or psychiatric illness, but it must be greater than ordinary stress or anxiety. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility (G.(J.), supra). Although not all state interference with the parent-child relationship will engage the parent’s security of the person, the state removal of a child from parental custody constitutes a serious interference with the psychological integrity of the parent qua parent and engages s.7 protection (G.(J.), supra, at paragraphs 63-64; K.L.W., supra, at paragraphs 85-87). The prohibition of marihuana does not generate a level of stress which engages section 7 (Malmo-Levine, supra at paragraph 88). The Court has signaled the possibility that victims of torture and their next of kin have an interest in finding closure that may, if impeded, be sufficient to cause such serious psychological harm so as to engage the security of the person (Kazemi Estate v. Islamic Republic of Iran, [2014] 3 S.C.R. 176 at paragraphs 130, 133-34).

It is unclear whether security of the person encompasses the right to privacy comprising a corollary right of access to personal information (Ruby, supra).

Property or economic rights are not generally included under security of the person insofar as the deprivation does not fundamentally deprive a person of the ability to earn a livelihood. One's security of the person is not deprived when he or she is prohibited from pursuing a particular profession (R. v. Weyer, [1988] F.C.J. No. 137 (C.A.) (QL)) The S.C.C. has suggested in dicta that section 7 may protect against the deprivation of “economic rights fundamental to human… survival” (Irwin Toy, supra, at 1003; Gosselin, supra, at paragraph 80). The distinction appears to be between the regulation of economic activity which may have the effect of limiting profit or earnings (will not engage section 7) and the complete or effective deprivation of a livelihood (may engage section 7, as per dicta in Gosselin; Irwin Toy; Walker; Singh per Wilson J.). Similarly, section 7 does not shield individuals from the financial effects of the enforcement of a judgment rendered in Canada or elsewhere (Beals v. Saldanha, [2003] 3 S.C.R. 416), nor is section 7 engaged by statutory limitations on damages that may be recovered for personal injury (Whitbread v. Walley, [1990] 3 S.C.R. 1273).

3. Principles of fundamental justice


The principles of fundamental justice are not limited to procedural matters but also include substantive principles of fundamental justice (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at paragraphs 62-67). The principles of fundamental justice are to be found in the basic tenets of our legal system, including the rights set out in sections 8-14 of the Charter (Re B.C. Motor Vehicle Act, supra, at paragraphs 29-30) and the basic principles of penal policy that have animated legislative and judicial practice in Canada and other common law jurisdictions (R. v. Lyons, [1987] 2 S.C.R. 309 at 327; R. v. Pearson, [1992] 3 S.C.R. 665 at 683).

Although jus cogens norms can generally be equated with principles of fundamental justice, the mere existence of an international obligation binding on Canada is not sufficient to establish a principle of fundamental justice (Kazemi, supra, at paragraphs 150-51).

Whether a principle may be said to be a principle of fundamental justice will depend upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system as it evolves (Re B.C. Motor Vehicle Act, supra; Chiarelli, supra at 732). In order to be a principle of fundamental justice, a rule or principle must be (1) a legal principle (2) about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and (3) 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. (Malmo-Levine, supra at paragraph 113; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76 at paragraph 8; R. v. D.B., [2008] 2 S.C.R. 3, at paragraph 46). The principles of fundamental justice find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens (Canadian Foundation for Children, Youth and the Law, supra).

The principles of fundamental justice must be approached with a careful consideration of context and will vary according to the context in which they are raised (Chiarelli, supra, at 732-33; Cunningham, supra, at 152; United States of America v. Cobb, [2001] 1 S.C.R. 587 at paragraph 32; Suresh, supra, at paragraph 45). While achieving the “right balance” between individual and societal interests is not in and of itself a principle of fundamental justice (Demers, supra, at paragraph 45; Malmo-Levine, supra at paragraphs 96-97), determining the content and scope of the principles of fundamental justice that apply in a given context to set the boundaries of the rights in question involves the balancing of individual rights and societal interests (R. v. Mills, [1999] 3 S.C.R. 668 at paragraphs 61-68; Malmo-Levine, supra, at paragraphs 98-99; Demers, supra, at paragraph 45; Re Application under section 83.28 of the Criminal Code, supra, at paragraph 78), particularly societal interests that “directly engage the responsibility of judges ‘as guardian[s] of the justice system’” (Burns, supra at paragraph 71). Similarly, where the rights of different parties are at issue (e.g., accused/complainant or parent/child), all must be considered in determining what is in accord with the principles of fundamental justice (G.(J.), supra at paragraph 76; Mills, supra; K.L.W., supra at paragraph 94; R. v. Darrach, [2000] 2 S.C.R. 443).

While national security is a state interest relevant to the determination whether an infringement of life, liberty or security of the person limits the principles of fundamental justice (Charkaoui (2007), supra, at paragraphs 24-25, 27; Suresh, supra, at paragraph 47; Ruby, supra, at paragraphs 39-46; Chiarelli, supra, at pages 745-746), national security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the section 7 stage of the analysis (Charkaoui (2007), supra, at paragraphs 23, 27).

(i) Substantive fundamental justice

The balancing of individual and societal interests within section 7 is relevant when elucidating a particular substantive principle of fundamental justice. However, societal interests or matters of public policy such as health care costs, which are unrelated to a principle of fundamental justice, should be considered under section 1 (Malmo-Levine, supra at paragraph 98; Bedford, supra at paragraphs 125-126).

The principles of fundamental justice include the principles against arbitrariness, overbreadth and gross disproportionality. A deprivation of a right will be arbitrary and thus unjustifiably limit section 7 if it “bears no connection to” the law’s purpose (Bedford, supra, at paragraph 111; Rodriguez, supra at 594-95; Malmo-Levine, supra at paragraph 135; Chaoulli, supra at paragraphs 129-30 and 232; A.C., supra, at paragraph 103). The fact that a government practice is in some way unsound or that it fails to further the government objective as effectively as a different course of action would is not sufficient to meet the claimant’s burden of establishing a lack of rational connection on a balance of probabilities (Ewert v. Canada, [2018] 2 S.C.R. 165 at paragraph 73).

Overbreadth deals with laws that are rational in part but that overreach and capture some conduct that bears no relation to the legislative objective (Bedford, supra, at paragraphs 112-113; Heywood, supra, at 792-93; R. v. Clay, [2003] 3 S.C.R. 735 at paragraphs 37-40; Demers, supra, at paragraphs 39-43). An appropriate statement of the legislative objective is critical to proper overbreadth analysis. The objective must be taken at face value — there is no evaluation of the appropriateness of the objective. The articulation of the objective should focus on the ends of the legislation rather than on the means, be at an appropriate level of generality and capture the main thrust of the law in precise and succinct terms: R. v. Moriarity, [2015] 3 S.C.R. 485 at paragraphs 26-30. Determining legislative purpose involves consideration of legislative statements of purpose and the text, context and scheme of the legislation. Regard may also be had for extrinsic evidence such as legislative history and, where legislation is enacted in the context of international commitments, international law: R. v. Appulonappa, [2015] 3 S.C.R. 754 at paragraph 33.

Gross disproportionality targets laws that may be rationally connected to the objective but whose effects are so disproportionate that they cannot be supported. Gross disproportionality applies only in extreme cases where “the seriousness of the deprivation is totally out of sync with the objective of the measure” (Bedford, supra, at paragraph 120; Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134 at paragraph 133; Malmo-Levine, supra, at paragraph 169; Burns, supra at paragraph 78; Suresh, supra, at paragraph 47; Malmo-Levine, supra, at paragraphs 159-160).

The analysis in relation to arbitrariness, overbreadth and gross disproportionality is qualitative not quantitative — an arbitrary, overbroad or grossly disproportionate impact on one person suffices to establish a breach (Bedford, supra, at paragraph 123). Further, the impugned effect is measured only against the law’s purpose without regard to the law’s efficacy (Bedford, supra, at paragraph 125).

The issue of disproportionate punishment (if it will be imposed by Canadian government action) should generally be approached in light of section 12 of the Charter (protecting against punishments that are grossly disproportionate, and thus “cruel and unusual”), not section 7 (Malmo-Levine, supra, at paragraph 160; R. v. Lloyd, [2016] 1 S.C.R. 130 at paragraph 43; R. v. Safarzadeh-Markhali, [2016] 1 S.C.R. 180 at paragraph 73). However, provisions that impact on sentencing or punishment can potentially be approached through the lens of section 7 overbreadth (see e.g., Safarzadeh-Markhali, supra, in which provisions restricting enhanced credit for pre-sentence custody were found to be overbroad deprivations of liberty).

Vagueness offends the principles of fundamental justice where the law, considered in its full interpretative context, is so lacking in precision that it does not provide sufficient guidance for legal debate as to the scope of prohibited conduct or of an “area of risk” (R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at 626-627 and 643; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1028 at 1070-72; R. v. Levkovic, [2013] 2 S.C.R. 204 at paragraphs 47-48). The doctrine of vagueness is directed at ensuring fair notice to citizens and limiting enforcement discretion of officials. (Nova Scotia Pharmaceutical, supra; Canadian Foundation for Children, Youth and the Law, supra at paragraphs 15-18). Where the state seeks to impose a criminal sanction, negligence is required as a minimum level of mens rea, in that at least a defence of due diligence must be open to an accused, for an offence to accord with the principles of fundamental justice (Re B.C. Motor Vehicle Act at 492; Wholesale Travel Group Inc., supra). However, for some crimes, because of the special stigma attached to a conviction or the available penalties upon conviction, the principles of fundamental justice will require a higher level of mens rea (Vaillancourt, supra, at 653-54; R. v. Martineau, [1990] 2 S.C.R. 633 at 646-47). It is a principle of fundamental justice that "morally involuntary" conduct should not attract criminal liability (R. v. Ruzic, [2001] 1 S.C.R. 687, at paragraph 47).

It is a principle of fundamental justice that young persons are entitled, on sentencing, to a presumption of diminished moral culpability (R. v. D.B. supra at paragraphs 45-69).

It is a principle of fundamental justice that the Crown is obliged to prove, beyond a reasonable doubt, any aggravating factors in sentencing on which it relies (D.B., supra at paragraphs 78 and 124).

It is a basic tenet of our legal system that an accused must be tried and punished under the law in force at the time the offence is committed (R. v. Gamble, [1988] 2 S.C.R. 595 at 647; Prostitution Reference, supra, at 1152; R. v. Johnson, [2003] 2 S.C.R. 357 at paragraphs 41-46).

The independence and impartiality of the judiciary is a principle of fundamental justice (Re Application under section. 83.28 of the Criminal Code, supra, at paragraph 81; Charkaoui (2007), at paragraph 32). Section 7 also protects a residual presumption of innocence outside criminal proceedings, although it does not necessarily require proof beyond reasonable doubt where the process in question does not involve a determination of guilt (Pearson, supra at 685; Demers, supra at paragraphs 33-34).

“Interrogation of a youth, to elicit statements about the most serious criminal charges” while the youth was detained in conditions that included scheduled sleep deprivation and no access to counsel, “and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects” and therefore unjustifiably limited the principles of fundamental justice (Khadr 2010, supra, at paragraph 25).

The lawyer’s duty of commitment to the client’s cause is a principle of fundamental justice. This means that where section 7 interests are engaged, the state cannot impose duties on a lawyer that undermine the lawyer’s compliance with that duty, either in fact or in the perception of a reasonable person (Canada (Attorney General) v. Federation of Law Societies, [2015] 1 S.C.R. 401 at paragraph 103).

The professional secrecy of lawyers and notaries is a principle of fundamental justice and must remain as close to absolute as possible (Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209 at paragraphs 36-37; Canada (Attorney General) v. Chambre des notaires du Québec, [2016] 1 S.C.R. 336 at paragraph 28). However, the proper approach to constitutional issues arising from state interference with solicitor-client privilege is under s. 8 of the Charter (Lavallee at paragraph 34).

In the extradition and deportation contexts, both the governing legislation and exercise of discretion thereunder must accord with the principles of fundamental justice, although the exercise of discretion will attract considerable deference (Suresh, supra at paragraphs 39-41; Burns, supra, at paragraph 32; Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, at paragraph 34).

A particular extradition or deportation can be contrary to the principles of fundamental justice because of risks the individual would face in a foreign state post-removal. Generally, the test is whether the risks are so severe that the extradition or deportation would “shock the conscience” of Canadians. The phrase “shocks the conscience” should not be equated with an opinion poll but is intended to underline the very exceptional circumstances that would constitutionally limit the scope of permissible government action in removal cases (Burns, supra at paragraph 67; United States v. Ferras, [2006] 2 S.C.R. 77 at paragraph 85). An extradition that limits the principles of fundamental justice will always shock the conscience (Burns, supra, at paragraph 68).

The assessment involves a flexible, context-specific, and evolving balancing process that can be informed by international law. What will be judged as contrary to the principles of fundamental justice in a particular case varies considerably depending on the factors taken into account and their relative influence (Kindler, supra at 848; Burns, supra at paragraph 65; Suresh, supra at paragraphs 45-46; Lake, supra at paragraphs 31-32, 38-39; Canada (Attorney General) v. Barnaby, [2015] 2 S.C.R. 563 at paragraph 2).

Barring as yet unspecified exceptional circumstances, it would “shock the conscience” for Canada to extradite an individual to a State that may impose the death penalty, unless sufficiently reliable assurances that the death penalty will not be sought or carried out are first obtained (Burns, supra at paragraph 65). Similarly, deportation or expulsion to a substantial risk of torture will generally unjustifiably limit the principles of fundamental justice, subject to a potential allowance for “exceptional circumstances”, the ambit of which has not yet been defined (Suresh, supra at paragraph 78). Note, however, that in India v. Badesha, [2017] 2 S.C.R. 127 at paragraphs 38, 42, the Supreme Court simply stated that extradition to a substantial risk of torture or mistreatment “will violate the principles of fundamental justice”.

For a discussion of factors that inform the content of the principles of fundamental justice in the extradition context, see: Burns, supra at paragraphs 72; Lake, supra at paragraphs 38-39. See also France v. Diab, 2014 ONCA 374 at paragraphs 237-238, leave to appeal to SCC refused, [2014] S.C.C.A. No. 317 (discussing the use of torture-derived evidence in the prosecution by the requesting state).

Here is the link to the site https://canada.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art7.html

Enjoy the read. Its time that everyone started reading our rights so we can stop these corrupt politicians that are dictating to us, and telling us they know better than we do.



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