SECTION 7 -LIFE,LIBERTY AND SECURITY OF
THE PERSON - THE GUARANTEE OF
FUNDAMENTAL JUSTICE RECENT DEVELOPMENTS
Gregory Walen
Hnatyshyn Singer Thorstad
601·402· 21stStE.
Saskatoon,Sask•• •S7K OC3
Ph: 65&-5150 Fax: 652·5859
BIOGRAPHICAL INFORMATION
Gregory Walen
( )
\.
Greg receivetj.a B.A. antj his. LL..B.from the University of Saskatchewan in 1980.. He was called to the
Greg's main area of practice are in. Criminal. Law, family Law, and Civil
Saskatchewan Bar in 1981.
. Litigation~ • From 1983 to 1988 he was a Commissioner with the Saskatchewan Legal Aid Commission.
From 1984 to 1987 he lectured althe Bar Admission Course on Family Law and Criminal Law. Greg
practices with the firm Hnatysyn, Singer, Thorstad in Saskatoon.
)
TABLE OF CONTENTS
I.
II.
OVERVIEW
1
1.
2.
3.
4.
1
3
.4
5
SPECIFIC APPLICATI0 NS
1.
2.
3.
III.
Application - To Whom does Section 7 Apply
Section 8 to 14 - Specific Deprivations
Life, Liberty and Security of the Person
Principles of Fundamental Justice
Vaguenss
Fault Requirement
Abuse of Process
CONCLUSION
7
7
9
11
14
)
SECTION 7 - LIFE, LmERTY AND SECURITY OF THE· PERSONTHE GUARANTEE OF FUNDAMENTAL JUSTICERECENT DEVEWPMENTS
Section 7 of the Canadian Charter of Rights and Freedoms states:
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 offundamental justice.
In order to analyze the breadth and scope of this far-reaching section of the Chaner,
a general overview of this right would be helpful to the practitioner prior to assessing
specific applications of this section. Because of the broad application of this section of the
Chaner, I intend to limit discussion to several important developments relating to section
7. Some areas overlapping with section 7 will be covered by other presenters in the
seminar.
Ie
\
1.
OVERVIEW
Application - To Whom Does Section 7 Apply:
(a) Individual v. Corporation.
In Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, the Supreme
Court of Canada held that a corporation could not avail itself of the protection of section
7 as the word "everyone" implied that the right belonged only to human beings and not
corporations. In a prior decision, R. v. Big M Drug Man, [1985] I S.C.R. 295, the Supreme
Court of Canada ruled that it was open to a corporate accused to defend a charge on the
basis that certain legislation was constitutionally invalid and inoperative under section 52.
In R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, the Supreme Court of
Canada ruled that while the rights guaranteed by Section 7 can only be enjoyed by human
beings and, therefore, a corporation is unable to seek a declaration that certain provisions
of a statute infringe Section 7, where there are proceedings of a penal nature pending in the
case, a corporation can challenge the validity of those provisions on the basis that the
2
provision infringes the rights of an individual and can take the benefit from a finding that
the provision violates the human beings' constitutional rights.
(b) Operation of Canadian Law.
In Spencer v. The Queen, [1985] 2 S.C.R. 278, a witness, who was at the relevant time
a bank manager for the branch of the Royal Bank of Canada in the Bahamas, refused to
answer questions relating to certain transactions while he was a bank manager in the
Bahamas. He allege that disclosure of this information could result in criminal prosecution
in the Bahamas.
The Supreme Court, in denying the witnesses application pursuant to section 7 of
the Canadian Chaner of Rights and Freedoms, ruled that the bank manager could not rely
upon section 7 as the infringement of his liberty or security, if any, did not result from the
operation of Canadian law but solely from the operation of Bahamian Law and under those
circumstances the Chaner had no applicability;
(c) Everyone.
In the context of judicial interpretation of the word "everyone" pursuant to section 7,
it is interesting to review a decision of our Saskatchewan Court of Appeal in Borowski v.
Canada (AG) (1987), 59 C.R. (3d) 223, wherein our Court held that a foetus was not
included within the definition of "everyone" in section 7.
In Tremblay v. Daigle, [1989] 2 S.C.R. 530, the Supreme Court of Canada refrained
from entering into the question of whether' the term "everyone" in section 7 included a
foetus.
(d) Economic interests and property.
The seminal decision relating to economic interests and property rights pursuant to
economic interests under the Chaner Reference re ss. 193 and 195.1 (l)(c) of the Criminal
Code [1991] S.C.R. 1123 wherein the Supreme Court of Canada held that section 193 and
)
3
195.1 of the Criminal Code which prohibited the keeping of a common bawdy house and
soliciting for the purposes of prostitution were not inconsistent with section 7. The Supreme
Court held that "liberty" under section 7 was concerned with the physical liberty of the
person and did not encompass economic rights such as the right to carryon lawful trade.
Economic rights as generally encompassed by the term "property" are not within the
parameters of the section 7 guarantee: Irwin Toy Ltd. v. Quebec (Attorney General), [1989]
1 S.C.R.927.
Our Court of Queen's Bench in Byn v. Government of Saskatchewan , [1987] 2
W.W.R. 475, recognized that section 7 does not embrace commercial or economic rights.
Likewise in R. v. Pinehouse Plaza Pharmacy Ltd., [1988] 3 W. W.R. 705, the Saskatchewan
Court of Queen's Bench recognized that economic rights are not protected by the Charter.
The concepts of life, liberty and security of the person in section 7 take their meaning from
their association with each other and have to do the bodily well-being of a natural person.
2.
Section 8 to 14 - Specific Deprivations
It is important to recognize that the rights conferred by section 7, that is not to be
deprived of life, liberty and security of the person, are also specifically provided for in
sections 8 through to 14 of the Charter. Contravention of an individuals Charter rights
specifically provided for in section
8
through to 14
would also presumably be a
contravention of one's section 7 protection. In Reference re s. 94(2) ofthe Motor Vehicle Act
(British Columbia), [1985] 2 S.C.R. 486), Mr. Justice Lamer stated:
Section 8 to 14 address specific deprivations of the "right" to
life, liberty and security of the person in breach of the principles
of fundamental justice, and as such, violations of s. 7. They are
therefore illustrative of the meaning, in criminal or penal law, of
"principles of fundamental justice"; they represent principles
which have been recognized by the common law, the
international conventions and by the very fact of eritrenchment
in the Charter, as essential elements of a system for the
administration of justice which is founded upon a belief in the
dignity and worth of the human person and the rule of law.
4
Consequently, the principles of fundamental justice are to be
found in the basic tenets and principles, not only of our judicial
process, but also of the other components of our legal system.
It is important to recognize as well, however, that the Supreme Court has indicated a
preference for dealing with Chaner issues in relation to specific provisions rather than under
section 7 where it is possible: R. v. Heben (1990), 70 C.R. (3d) 145 (S.C.C.).
3.
Life. Liberty and Security of the Person.
In order to establish a violation of one's section 7 right, it is obvious that it must be
established that the individual's right to life, liberty or security of the person either has been
or will be breached. In Motor Vehicle Reference (1985), supra, the Supreme Court held that
the right to liberty may be violated by a potential of imprisonment.
Mr. Justice Lamer
stated at page 319:
Obviously, imprisonment (including probation orders) deprives
persons of their liberty. An offence has that potential as of the
moment is open to the judge to impose imprisonment. There is
no need that imprisonment...be made mandatory.
This view was followed by our Saskatchewan Court of Appeal in R. v. Bun (1987), 60 C.R.
(3d) 372 (Sask. C.A.), wherein Mr. Justice Wakeling speaking for the majority of the Court
stated:
With reference to the application. of s. 7, is there a basis to.
distinguish a sentence which is restricted to payment of a fine,
with imprisonment for non-payment, from one where the
sentence is for imprisonment in the first instance? To the
person in prison, it is of little consequence to have it said that
the original sentence only required payment of a fine and he is
in jail because of his failure to do so. The prisoner will surely
be convinced that he is in jail because he was found guilty of the
original offence and will be inclined to accuse judges and lawyers
who say otherwise of exercising their legal skills to distinguish
where no real difference exists.
5
More recently, the Supreme Court of Canada in R. v. Pontes (1995),41 C.R. (4th) 201
reaffirmed this approach. This case and as well Motor Vehicle Reference 1985, supra will be
dealt with later in this paper in the context of the fault requirement.
Although Beare v. R. and Higgins v. R. (1987), 57 C.R. (3d) 193 were both reversed
by the Supreme Court of Canada (see Beare v. R. (1987), 61 C.R. (3d) 303), these cases
are useful as Bayda, C.J. fully analyzes the scope of "life, liberty and security" as protected
by section 7. The Supreme Court of Canada did not directly repudiate this analysis. In
Beare, supra, Chief Justice Bayda stated:
"When the Chaner speaks of "the person", it speaks of the
whole person and thus when it speaks of the "life, liberty and
security of the person", it speaks of the life of the body and the
life of the mind; the liberty of the body and the liberty of the
mind (Le. the freedom of the will to choose and the intellect to
reason); the security of the body and the security of the mind
(Le. the integrity of those attributes of the mind ... that,
speaking generally, are subsumed in the phrase "the dignity and
worth of human person")."
It is clear that the Supreme Court of Canada
S.C.R. 30 has upheld the view that
10
Morgentaler et al v. R. (1988), I
"security" of the person under section 7 covers
psychological as well as physical health.
In that decision, Chief Justice Dickson
characterized the infliction of emotional stress as a violation of security of the person.
4.
Principles of Fundamental Justice.
This is perhaps one of the more nebulous concepts of the Charter. In my view this
particular provision will continue to receive extensive judicial interpretation in the future.
As stated above, Mr. Justice Lamer in Motor Vehicle Reference 1985, supra, viewed
the principles of fundamental justice as "a qualifier of the right not to be deprived of life,
liberty and security of the person".
He noted that while the phrase "principles of
fundamental justice" served to establish the "parameter of the interests" it could not be
"interpreted so narrowly as to frustrate or stultify". He went on to note that the principles
6
of fundamental justice are not restricted to procedural content and indicated that the
principles could have substantive application.
He went on to note at page 513:
"Whether any given principle may be said to be a principle of
fundamental justice within in the meaning of section 7 will rest
upon an analysis of the nature, sources, rationale and an
essential role of that principle within in the judicial process and
in our legal system, as it evolves.
Consequently, those words cannot be given any exhaustive
content or simple enumerative definition, but will take on
concrete meaning as the courts address alleged violations of
section 7".
The principles of fundamental justice identified in section 7 include, but are not
limited to, the rules of natural justice and the duty to act fairly.
They include the
requirement of a procedurally fair hearing before an impartial decision maker: Pearlman
v. Manitoba Law Society Judicial Committee [1991] 2 S.C.R.869.
In Singh et al v. Minister of Employment and Immigration [1985] 1 S.C.R. 177, the
Supreme Court indicated that "fundamental justice" includes, as a minimum, the notion of
procedural fairness. Procedural fairness may demand different things in different context.
While in some circumstances written submissions may be an adequate substitute for an oral
hearing, fundamental justice requires an oral hearing where serious issues of creditability
are involved.
In Motor Vehicle Reference 1985, supra, the Supreme Court held that section 94 of
the British Columbia Motor Vehicle Act violated the principle that an individual should not
be deprived of his liberty as punishment for an offence which had no mens rea.
7
)
ll.
1.
SPECIFIC APPLICATIONS
Vagueness
It is a principle of fundamental justice that laws may not be too vague. The concept
of vagueness can accordingly be raised in the context of a section 7 argument.
In R. v.
Nova Scotia Pharmaceutical Society (1992), 74 C.C.C. (3d) 289, the Supreme Court of
Canada determined that the doctrine of vagueness is founded on the principle of fair notice
to citizens and limitation of enforcement discretion. The substantive aspect of fair notice
requires an understanding that certain conduct is the subject of legal restrictions. A law will
be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance
for legal debate.
More recently, in R. v. Canadian Pacific Ltd. (1995),41 C.R. (4th) 147, the Supreme
Court recognized that the principles of fundamental justice in section 7 require that laws
provide the basis for coherent judicial interpretation and sufficiently delineate an area of
risk. Mr. Justice Gonthier states at page 175:
"Vagueness must not be considered in abstracto, but instead
must be assessed within a larger interpretive context developed
through an analysis of considerations such as the purpose,
subject matter and the nature of the impugned provision, societal
values, related legislative provisions and prior judicial
interpretations of the provision. Only after exhausting its
interpretative role will a court then be in a position to determine
whether an impugned provision affords sufficient guidance for
legal debate".
In addition to the vagueness concept, the Canadian Pacific, supra also analyzed the
concept of overbroad laws as contravening section 7 protection. In doing so, Chief Justice
Lamer referred with approval from a previous Supreme Court of Canada decision, R. v.
Heywood, [1994] 3 S.C.R. 761. In Heywood, Cory, J. speaking for the majority stated at
page 792-793:
"Overbreadth analysis looks at the means chosen by. the state in
relation to its purpose. In considering whether a legislative
provision is overbroad, a court must ask the question:
8
Are those means necessary to achieve the State objective? If the
State, in pursuing a legitimate objective, uses means which are
broader than is necessary to accomplish that objective, the
principles of fundamental justice will be violated because the
individual's rights will have been limited for no reason. The
effect of overbreadth is that in some applications the law is
arbitrary or disproportionate".
\
In Heywood, supra, the Supreme Court of Canada ruled that section 179( I )(b) of the
Criminal Code contravenes section 7
of the Chaner as it infringed the principles of
fundamental justice because of its overbreadth.
That provision of the Criminal Code
provided that everyone commits vagrance who, having at any time been convicted of certain
offenses, including sexual assault, loiters in or near a school ground, playground, public park
or bathing area. The Supreme Court ruled that wh'ile a prohibition on attending at certain
places for the purpose of protecting the public does not per se infringe the principles of
fundamental justice, the section applied without prior notice to the accused, applied to too
many places and to too many people for an indefinite period with no possibility of review.
The Supreme Court ruled that the legislation limiting the liberty of an individual in order
to protect the public should not go beyond what is necessary to accomplish that goal. The
Court ruled that that particular section was overly broad in its geographical ambit. It was
a life time prohibition without a review· process. As the Supreme Court found that section
179(1)(b) was overly broad and contravene section 7, it failed the minimal impairment
branch of the section 1 analysis. It is important to note that it was a five-four decision in
ruling that that particular section infringed the principles of fundamental justice guaranteed
by section 7.
More recently our Saskatchewan Court of Appeal in R. v. Warren (1994), 95 C.C.C.
(3d) 86, ruled that section 741.2 of the Criminal Code of Canada which allowed for the
increase of parole ineligibility was not inconsistent with section 7 of the Chaner. The Court
ruled that the considerations as outlined in that particular section were well understood,
having long been common to the imposition and administration of sentences and were
capable of meaningful and rational application in both achieving the objectives of a fixed
)
9
sentence and then in preserving their integrity.
2.
Fault Requirement
The Motor Vehicle Act Reference (1985), supra recognized that a law that has the
potential to convict a person who has not really done anything wrong, offends the principles
of fundamental justice and, if imprisonment is available as a penalty, such a law then
violates a person's right to liberty under section 7 of the Charter. The Supreme Court ruled
that absolute liability in penal law offends the principles of fundamental justice and a law
which creates an absolute liability offence will offend section 7 only if and to the extent that
it has the potential of depriving an individual of life, liberty or security of the person.
In Regina v. Vaillancoun, [1987] 2 S.C.R. 636, the Supreme Court of Canada held
that section 213(d) of the Criminal Code had contravened section 7 of the Charter. That
section of the Criminal Code defined culpable homicide as murder where a person causes
the death of a human being while committing or attempting to commit certain offenses, such
as robbery, if he uses a weapon or has it upon his person during or at the time he commits
or attempts to commit the offence, or during or at the time of his flight after committing or
attempting to commit the offence, and the death ensues as a consequence.
Although four
different sets of reasons for judgment were delivered in Vaillancoun, Lamer, J., was of the
view that there are certain crimes where, because of the special nature of the stigma
attached to a conviction therefore or the available penalty, the principles of fundamental
justice require a mens rea reflecting the particular nature of that crime. Lamer, J. (Dickson
C.J. and Wilson, J. concurring), was of the view that it is a principle of fundamental justice
that a conviction for murder cannot rest on· anything less than proof beyond a reasonable
doubt of subjective foresight of death. This was so as it was death which was the special
mental element which gave rise to the moral blameworthiness which justified the stigma and
sentence attached to a murder conviction.
It is well settled law that since Motor Vehicle Act Reference (1985), supra, all absolute
liability offenses wherein imprisonment
is a possible result, are unconstitutional
as
10
contravening section 7. As a result, vicarious liability provisions of statute have also been
struck down as being unconstitutional.
In Regina v. Bun (1987), 38 C.C.C. (3d) 299, our Saskatchewan Court of Appeal
struck down section 253 of the Vehicles Act which rendered the owner of a motor vehicle
liable for the violation of any provision of the Act unless the owner proved to the
satisfaction of the Court that at the time of the offence the vehicle was not being operated
by him, or by any other person with his consent. The Court ruled that absolute liability in
a penal law is contrary to the principles of fundamental justice and violated section 7 to the
extent that it had the potential of depriving the person of life, liberty or security of the
person. The Court further ruled that that particular section of the Vehicles Act was not a
reasonable limit within the meaning of section 1 of the Charter.
Similarly, our Court of Queen's Bench in R. v. Holizki (1990), 79 C.R. (3d) 80, ruled
that a provision imposing absolute liability for a parking violation vicariously on the owner
offended section 7
but only to the extent that it allowed imprisonment in default of
payment of a fine.
In R. v. Pontes (1995), 41 C.R. (4th) 201, the Supreme Court of Canada, by slim
majority, upheld a decision of the British Columbia Court of Appeal striking down an
offence of driving a motor vehicle while prohibited where the accused's driving prohibition
for 12 months had arisen "automatically and without notice" under section 92 of the British
Columbia Motor Vehicle Act. While the majority and the dissenting opinions differed on the
issue of whether or not section 94 of the British Columbia Motor Vehicle Act in combination
with section 92 of the Act created an absolute liability offence or a strict liability offence,
the case is very useful in its analysis of absolute and strict liability offenses and the law since
Saulte Ste. Marie.
In my view, it appears that any law passed by a legislature or parliament which has
the potential for imprisonment as a penalty for the breach thereof must, at a minimum, have
11
the defence of due diligence available to it.
Otherwise that law would be declared
inoperative.
3.
Abuse of Process
In Connelly v. Director of Public Prosecutions, [1964] A.C. 1254, the British House of
Lords recognized that the discretion at common law to stay proceedings for abuse of process
arose out of the inherent jurisdiction of the Court to control its own process. The Supreme
Court of Canada in R. v. Jewitt, [1985] 2 S.C.R. 128, recognized the common law doctrine
of abuse of process in Canada.
The Supreme Court of Canada in R. v. Keyowski (1988), 40 C. C. C. (3d) 481 set out
guiding principles for the common law doctrine of abuse of process. Madam Justice Wilson,
speaking for the majority, stated:
"A stay should be granted where "compelling an accused to
stand trial would violate those fundamental principles of justice
which include the community's sense of fair play and decency",
or where the proceedings are "obtrusive or vexatious"."
In R. v. Leduc, [1993] 3 S.C.R. 641, Mr. Justice Sopinka, speaking on behalf of the
Supreme Court, stated at page 641:
"The power
process must
it is shown
fundamental
community's
to stay proceedings on the ground of abuse of
only be exercised in the clearest of cases and when
that the conduct complained of violated those
principles of justice which underlies the
sense of fair play and decency."
In R. v. Dyrland (Q.B.C.N.J. 61 A.D. 1993), our Court of Queen's Bench applied
those principles in entering a stay of proceedings where the court found that there was an
agreement made approximately ten years earlier between police officials and the Attorney
General's Department with the accused that charges would not be laid of the accused had
attended counselling.
12
On December 14, 1995, the Supreme Court of Canada in R. v. O'Connor, S.C.C.
December 14, 1995 No. 24114, ruled that there is no need to maintain any type of
distinction between the common law doctrine of abuse of process and Charter requirements
regarding abuse of process. Effectively, our Supreme Court has removed the distinction
between the common law doctrine of abuse of process as described above and an abuse of
process leading to a section 7 violation. This is important as the case law suggested a
different onus of proof when one was alleging a violation at common law on the basis of
abuse of process or pursuant to the Charter.
One other aspect of 0 'Connor, supra, that is important that the direction our Supreme
Court has taken with respect to remedies associated with abuse of process. It appears that
a stay of proceedings may not be the only remedy available in cases of abuse of process.
Madam Justice L'Heureaux-Dube stated in O'Connor at page 59:
"Remedies less
available under
cases threshold
of probabilities,
drastic than a stay of proceedings are of course
section 24(1) in situations where the clearest of
is not met but where it is proved, on a balance
that section 7 has been violated".
Madam Justice L'Heureaux-Dube went on to state that to meet this threshold there
must be evidence of irreparable prejudice if not to an accused's right to a fair trial then to
the integrity of the judicial system where the prosecution to continue.
It is not the intention of the writer to exhaustively analyze O'Connor and its
implications as I understand that O'Connor will be dealt with extensively in the context of
the "investigative process".
13
Lack of disclosure by the Crown is not the only area where abuse of process
arguments arise. The following is obviously not an exhaustive list of cases where other
abuse of process arguments have been raised. They do, however, illustrate that our Courts
are clearly open to accept arguments where the integrity of the judicial system is called into
question:
R. v. O'Connor S.C.C. December 14, 1995 No. 24114: Failure of Crown to
disclose complainants entire medical, counselling and school records
R. v. McArthur, [1995] S.l. 503: In this case the Crown elected to proceed by way of
summary conviction against an accused charged with sexual assault. He pleaded not
guilty and eventually the Crown directed a stay of proceedings and laid a new
information charging the accused with an identical offence. The Crown elected to
proceed by way of indictment. Our Saskatchewan Court of Appeal ruled that the
accused failed to establish the deprivation of his right to life, liberty and security of
the person was not in accordance with the principles of fundamental justice. The
Court held that there was no bad faith or improper motive on the part of the Crown
and it was further judicially recognized that the existence of prosecutorial discretion
did not offend the principles of fundamental justice. This case is helpful in analyzing
the distinction between the common law right of abuse of process and the Chaner
issues surrounding the abuse of process.
R. v. Mitchelson (1992),71 C.C.C.(3d) 471: The Manitoba Court of Appeal upheld
an order staying of proceedings during a trial of an accused for a fourth time on a
charge while driving over .08. The Court ruled that considering the time that the
offence had been in the system, the fact that the Crown had chosen to proceed
summarily and stigmatization of the accused as a result of the publicity, requiring the
accused to stand trial for a fourth time would constitute an abuse of process.
R. v. R. (W.A.) (1993), 20 W.C.B. (2d) 391: The British Columbia Supreme Court
found an abuse of process and rather than ordering a stay of proceedings, ordered
the Crown to carry out its original undertaking with respect to the plea agreement
that the Crown was attempting to withdraw from. In this case, the accused had
executed an Agreed Statement of Facts prior to the Crown withdrawing its
agreement. The court held that the accused had suffered prejudice as a result of the
Agreed Statement of Facts even though the Crown could have been precluded from
using the statement.
14
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ID.
CONCLUSION
The writer has not attempted to provide a complete overview of the application of
section 7. To do so would be a mammoth undertaking.
It is my view that the courts will
for many years be interpreting the broad implications of this section and accordingly, the
applications of this section are as far reaching as imaginitive counsel will allow them to be. .
Chief Justice Dickson of the Supreme Court in Morgentaler et al v. R., supra stated at page
461:
".. .It is neither necessary nor wise in this appeal to explore the
broadest implications of section 7 as counsel would wish us to
do. I prefer to rest my conclusions on a narrower analysis than
that put forward on behalf of the appellants. I do not think it
would be appropriate to attempt an all-encumpassing explication
of so important a provision as section 7 so early in the history of
Charter interpretation. The court should be presented with a
wide variety of claims and factual situations before articulating
the full range of section 7 rights ... "