Constitutional Law – Right to Life, Liberty and Security of Person

By: Marian E. Bryant, B.A. (Hons.), LL.B. of the Alberta, Nunavut and Ontario Bars

X.1(e)(ii): Charter of Rights and Freedoms – Legal Rights – Right to Life, Liberty and Security of Person

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X.1(e)(ii): Right to Life, Liberty and Security of Person

See Canadian Abridgment: CNL.XI.3.f Constitutional law — Charter of Rights and Freedoms — Nature of rights and freedoms — Life, liberty and security; CRM.IV.12 Criminal law — Charter of Rights and Freedoms — Life, liberty and security of person [s. 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.

The principles of fundamental justice found in the basic tenets of our legal system. They may be distilled from the legal principles which have historically been reflected in the law of this and other similar states. The principles must be capable of being articulated with some precision; they must be more than broad generalizations about ethical or moral beliefs.

Liberty does not mean unconstrained freedom. Freedom of the individual to do what he or she wishes must be subjected to numerous constraints for the common good. The state has the right to impose many types of restraints on individual behaviour, and not all limitations will attract Charter scrutiny. However, liberty does not mean mere freedom from physical restraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

The liberty interest is engaged when state compulsions or prohibitions affect fundamental life choices. There can be no doubt that the right to liberty includes the right to conceive a child with the person of a woman's choice.

The principles of fundamental justice include procedural fairness. The "most important factors in determining the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned". Section 7 "must be interpreted purposively, bearing in mind the interests it was designed to protect". The Supreme Court of Canada has frequently asserted the need to interpret the principles of fundamental justice within the "specific context in which section 7 is being asserted".

A determination of whether section 7 has been infringed consists of three main stages: (a) whether there is a real or imminent deprivation of life, liberty, and security of the person or a combination of those interests; (b) identifying and defining the relevant principle or principles of fundamental justice; and (c) whether the deprivation has occurred in accordance with the relevant principles or principles. In theory, if a breach of section 7 is found, the analysis then turns to a consideration of section 1 of the Charter, as it is true for all other sections of the Charter. However, the Supreme Court of Canada has repeatedly noted that a breach of section 7 can only be saved by section 1 in extraordinary situations. Thus, the analysis is really confined to a consideration of the section itself.

Section 7 of the Charter requires a two-step analysis to determine whether legislation or other state action infringes a protected Charter right: (i) is there an infringement of the right to "life, liberty and security of the person"; and (ii) if so, is the infringement contrary to the principles of fundamental justice. A section 7 analysis must be a contextual one.

Security of the person, by its nature, cannot encompass a right to take action that will end one's life as security of the person is intrinsically concerned with the well-being of the living person. Sanctity of life has been understood historically as excluding freedom of choice in the self-infliction of death and certainly in the involvement of others in carrying out that choice.

The broad protection afforded to accused persons is perhaps best described in terms of the overarching principle against self-incrimination, which is firmly rooted in the common law and is a fundamental principle of justice under section 7. The presumption of innocence and the power imbalance between the state and the individual are at the root of this principle and the procedural and evidentiary protections to which it gives rise.

It is a principle of fundamental justice that only voluntary conduct should attract criminal liability: depriving a person of liberty and imposing the stigma of criminal liability would infringe the principles of fundamental justice if the defendant did not have any realistic choice.

The proposition that the "harm principle", the idea that conduct must not attract imprisonment absent clear harm to a person other than the person performing the conduct, is a principle of fundamental justice is not valid. To be considered a principle of fundamental justice, the principle must be founded on a broad social consensus which says that the principle is an essential element of the criminal law and the administration of justice cannot function fairly and properly without resort to and consideration of the principle. It must also provide an articulable standard of measurement by which an impartial observer could determine whether or not the principle was being satisfied.

Section 7 of the Charter does not defeat all absolute liability offences but any absolute liability offence exposing a defendant to a risk of imprisonment will fall as violating fundamental justice.

A party has a right to a fair hearing, not a freestanding right to counsel. The right to state-funded counsel may not include the right to counsel of choice.

The Constitution does not guarantee access to courts with legal representation when rights or obligations are at stake. Such a right would result in constitutionally mandated legal aid except where the state could show that effective access to justice was not necessary. Many persons represent themselves in court proceedings. Not every limit on access to the courts is unconstitutional, and general access to legal services is not an aspect of rule of law. The right to counsel as an aspect of procedural fairness where life, liberty and security of the person are affected does not support a general right to legal assistance where rights or obligations are before a court or tribunal.

A corporation cannot avail itself of the protection offered by section 7. However where a corporation is a criminal defendant it can defend on basis the charging statute is void for offending section 7.

The right to silence is based on the notion that the person whose freedom is placed in question by the judicial process must be given the choice of whether or not to speak to authorities; an inculpatory statement by a defendant elicited by the Crown or Crown agent deception offends section 7. Where an accused is under a form of detention by the state, the state must ensure the detainee's Charter rights are respected. Mandatory fingerprinting of an accused person does not offend section 7.

In criminal matters, the Crown must disclose all information about a charge, inculpatory and exculpatory, unless the information is irrelevant; disclosure is relevant if there is a reasonable possibility withholding it will impair the defendant's right to full answer and defence. However, privilege against the disclosure of the identity of the police informant did not infringe section 7 of Charter because the privilege was imposed for valid social reasons. The obligation to disclose is not absolute.

The entitlement of an accused person to production either from the Crown or third parties is a constitutional right. Breach of this right entitles the defendant to a remedy under section 24(1) of the Charter. Remedies range from one or several adjournments to a stay of proceedings. To require a defendant to show that the conduct of his or her defence was prejudiced would foredoom any application for even the most modest remedy where the material has not been produced. It would require a defendant to show how the defence would be affected by the absence of material which has not been seen.

The principles of fundamental justice provided by section 7 must reflect a diversity of interests, including the rights of an accused, as well as the interests of society. While the objective of the judicial process is the attainment of truth the principles of fundamental justice require that the criminal process be a fair one. It must enable the trier of fact to "get at the truth and properly and fairly dispose of the case" while at the same time providing the accused with the opportunity to make a full defence. The fact that the complainant's giving of evidence may be facilitated by the use of a screening device in no way restricts or impairs a defendant's ability to cross-examine the complainant. Ability to see a witness's face is an important feature of a fair trial.

A principle of fundamental justice must fulfil the following criteria: (1) it must be a legal principle that provides meaningful content for the section 7 Charter guarantee while avoiding adjudication of public policy matters; (2) there must be a significant societal consensus that the principle is "vital or fundamental to our societal notion of justice"; and (3) the principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. The principles are grounded in Canada's legal traditions and understanding of how the state must deal with its citizens. They are regarded as essential to the administration of justice.

Three principles of fundamental justice are implicated in cases where crime-creating provisions are challenged on the basis of section 7 of Charter. These principles are arbitrariness, overbreadth and gross disproportionality. The constitutional measurements required by at least one of those concepts — gross disproportionality — inevitably draw the court into an assessment of the merits of policy choices made by Parliament as reflected in legislation.

A defendant has a constitutional right to have the evidence of prior testimony obtained in the absence of a full opportunity to cross-examine the witness excluded. When the evidence is sought to be introduced in order to obtain a criminal conviction which could result in imprisonment, a defendant faces a deprivation of his or her liberty and security of the person which may only be done in accordance with the principles of fundamental justice; it is a principle of fundamental justice that a defendant have a full opportunity to cross-examine the adverse witness.

When the Crown seeks to tender evidence in a criminal proceeding in Canada that has been gathered in a foreign jurisdiction, which does not engage another right under the Charter, it may be subject to exclusion pursuant to section 7 if it was obtained in a manner that violated the accused's right to fundamental justice and would therefore render the accused's trial unfair. Even though the collection of evidence outside Canada may not be subject to the Charter, its reception into evidence in a criminal trial in Canada may violate the principles of fundamental justice if it was obtained in an abusive manner. It is said in those cases that the gathering of evidence in the foreign state should at least conform with its domestic law. Compelling a witness to testify in breach of Bahamian law not infringement of section 7 of Charter.

The secrecy of the jury deliberation process, both during and after the conclusion of the trial, is a vital and necessary component of the jury system. The principles of fundamental justice require that the integrity of the jury be preserved. The common law rule of jury secrecy, in combination with the mirror prohibition on disclosure under the Criminal Code, serves to further the policy goals of promoting free and frank debate among jurors, protecting jurors from harassment, and preserving public confidence in the administration of justice.

The principles of fundamental justice both reflect and accommodate the nature of the common law doctrine of abuse of process. Although the focus of the common law doctrine of abuse of process has traditionally been more on the protection of the integrity of the judicial system whereas the focus of the Charter has traditionally been more on the protection of individual rights, the overlap between the two has now become so significant that there is no real utility in maintaining two distinct analytic regimes.

A third trial will not, without more, constitute an abuse of process. A stay of proceedings should only be entered in the "clearest of cases".Where a claim of abuse of process is made, it is necessary to examine the particular facts of the case in order to determine whether, in all the circumstances, it would offend the principles of fundamental justice to proceed further. In sum, a stay of proceedings remains a remedy of last resort.

The liberty interest involved in not continuing period of parole ineligibility may be protected by section 7 of the Charter. The only questions which arise under the Charter are whether a protected liberty interest is limited, and if so, whether that limitation accords with the principles of fundamental justice. Qualification of a prisoner's expectation of liberty does not necessarily bring the matter within the purview of section 7 of the Charter. The qualification must be significant enough to warrant constitutional protection. To require that all changes to the manner in which a sentence is served be in accordance with the principles of fundamental justice would trivialize the protections under the Charter.

Section 7 has a broader ambit than just criminal matters. Section 7 rights can at least extend beyond the sphere of criminal law where there is "state action which directly engages the justice system and its administration".The interests protected by section 7 should be broadly defined.

Applicants have a Charter-protected right to privacy in circumstances where confidential, personal information is about to be released by the government, retroactively and without their permission, to persons whom they would not want to have it.

The removal of a child from a parent's custody by the state infringes the parent's right to security of the person, as protected by section 7. Principles of fundamental justice have both a substantive and a procedural component in the child protection context. Parents may not, in the exercise of their rights to nurture their children, refuse them medical treatment that is necessary and for which there is no reasonable alternative. That conclusion is clearly contemplated bysection 1 of the Charter, which is the provision that "guarantees the rights and freedoms set out in it", but it does so "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society", and as far as section 7 is concerned by the requirements of fundamental justice.

Legislation allowing teachers or parents to use reasonable force in correcting a child does not violate section 7 of the Charter.

Although the Supreme Court of Canada has left open the possibility that section 7 of the Charter might one day be interpreted as including positive obligations, to date, that provision has been interpreted only as restricting the state's ability to deprive individuals of life, liberty or security of the person.

The concept of security in section 7 has a psychological dimension. Both the stigmatization and labelling that could result from publication of identity and an adult sentence presumption in young offender legislation could compromise the young person's psychological security. The principles that any decision made concerning young persons must be in their best interest, that the juvenile criminal justice system must be separate from the adults' system, and that the social reintegration of young persons must be part of that system's purposes, are more than public policy objectives, they are substantial principles of fundamental justice.

"Liberty" under section 7 of the Charter is not synonymous with unconstrained freedom and does not give an unconstrained right to transact business whenever one wishes. Further, the right to hold more than one job is not a fundamental right protected by section 7.

It has generally been held that section 7 of the Charter does not protect property rights or purely economic rights.

The recognition and enforcement of a foreign judgment by a Canadian court does not violate section 7 of the Charter.

Section 7 applies to extradition hearings and a refusal by the Minister to ask for assurances that the death penalty will not be exacted breaches section 7; section 7 is the appropriate place for debate about "state responsibility".

Deportation to torture will generally violate section 7 of the Charter, although in exceptional circumstances it may be justified.

The deportation of the parents of Canadian-born children does not violate the section 7 rights of either the parents or their children, since the separation of the parents from their children is the result of the parents' decision not to take the children with them when removed from Canada.

The Immigration and Refugee Protection Act allows the appropriate ministers to issue a certificate of inadmissibility leading to the detention of a permanent resident or foreign national who is deemed to be a threat to national security. The deportation of a non-citizen in the immigration context may not in itself engage section 7 of the Charter, but some features associated with deportation, such as detention in the course of the certificate process or the prospect of deportation to torture, may do so. The challenge to the fairness of the process leading to possible deportation and the loss of liberty associated with detention raises important issues of liberty and security and engages section 7 of the Charter. The certificate provisions issued under the Immigration and Refugee Protection Act deprive detainees of their liberty. A detainee could be removed to a place where his or her life or freedom would be threatened. A certificate might bring an accusation that one was a terrorist, which could cause irreparable harm.

National security concerns cannot excuse procedures not conforming to principles of fundamental justice. The state can detain people for significant periods of time; however, it must provide a fair judicial process. There must be a hearing before an independent and impartial magistrate, and a decision by the magistrate on the facts and the law. The detainee must have the right to know the case put against him or her and the right to answer that case.

The doctrine of vagueness may be raised pursuant to s. 7 and the appropriate test is whether a statute is so pervasively vague that it permits a "standardless sweep"; section 7 liberty applies only to physical liberty not economic liberty.

Independence of the bar and self-governance by provincial law societies is a principle of fundamental justice protected by section 7 of the Charter.