DCC Final 2119 - Week 8: Life, Liberty, and Security

Provisions:

  • Canadian Charter of Rights and Freedoms (CCRF):

    • Section 7: everyone has the right to life, liberty, and security, subject to principles of fundamental justice. (not a positive right)

    • Section 1: Allows reasonable limits on rights and freedom, justified in a free and democratic society.

  • Charter of Human Rights and Freedoms (Quebec):

    • Section 1: Every human being has a right to life, and to personal security, inviolability, and freedom

    • Section 9.1: Rights and freedoms are exercised in regards to democratic values, state secularism, public order, and well-being.

Application of Section 7 :

  • The Canadian Charter applies only to government actions, not private entities while the Quebec Chacter applies to private entities

  • Purpose: Protects rights and freedoms while preventing infringement by government policies

  • Prevents laws that put minority groups at a disadvantage

    • Article 23: minority language

      Section 25: aboriginal people's rights

      Section 29: denominational schools

  • Section 7 ensures rights can only be deprived in accordance with principles of fundamental justice:

    • Applies to everyone

    • Protects individual autonomy and person's legal right from government actions

    • Both substantial and procedural rights

    • Have broad applications in national policy, social assistance, and public health

    • While primarily aimed at government actions, these rights can also be violated by non-governmental parties, with government involvement often required for resolution

    • Hasnt been interpreted to confer rights directly or impose positive obligations on the government, but the Supreme Court of Canada hasn't ruled out these possibilities.

International Covenant on Civil and Political Rights: (MAYBE DONT NEED TO KNOW)

  • Article 9: Right to liberty and security of person, protection against arbitrary arrest or detention, prompt notification of reasons for arrest, right to trial within a reasonable time or release, entitlement to compensation for unlawful arrest or detention.

  • Various international agreements outline rights and obligations:

    Universal Declaration of Human Rights, European Convention on Human Rights, American Convention on Human Rights, Convention on the Rights of Persons with Disabilities, etc.

Distinction Between Right to Life and Privacy

  • Section 8 of the CCRF: Everyone has the right to be secure against unreasonable search and seizure

    • Applies to corporations as legal persons, unlike Section 7 which only to human beings and not corporations

    • Prevents unjustified searches, requiring reasonable grounds and warrants.

  • Section 8 two-step analysis:

    1. Was there a search or seizure

    2. If there was, was it justified or reasonable

Federal Privacy Act and Private Sector Laws

  • Federal Privacy Act protects and governs the collection, use, disclosure, retention, and disposal of personal information within the federal government.

  • Personal Information Protection and Electronic Documents Act (PIPEDA) and provincial legislation protect privacy in the private sector.

Invoking Section 7 :

  • The applicant must prove

    1. an infringement of either life, liberty, or security

    2. how the infringement went against the principle of fundamental justice

  • The defendant

    • must prove the absence of a violation of these fundamental freedoms

  • The court evaluates the circumstances and If a violation is found, the court assesses if it can be justified under Section 1 of the Charter

    • Note: There will be a presumption of violation, and the court must assess if the violation can be justified under Section 1 of the Charter. If justified, there is no violation.

      In the Beare case, the court emphasized that Section 7 should be interpreted generously but should not exceed its intended purpose.

  • Challenges

    • Lack of definition for life, liberty, and security so the court needs to decide based on the circumstance and evidence (case by case bases)

  • As the purpose is to

    • Safeguard individuals within the legal system

    • Ensure that laws or state actions adhere to life, liberty, and security in the name of fundamental justice throughout the process

      • such as the right to counsel and fair hearings after the actions

Examples of Limitations on Rights

  • Government actions such as land expropriation, compulsory photography for security, mandated education, union membership, and substance restrictions may limit life, liberty, and security.

  • A causal link of governmental actions to harmful consequences can not invoke Section 7 as there must be a real connection

    • example: increase of taxes (high level) that causes a specific family to not have enough money to survive


Scope and Justification

  • Section 7 is not absolute, subject to justification under Section 1.

  • Violations must be justified according to fundamental justice or Section 1.

  • Criminal Code and immigration laws provide examples where Section 7 rights may be infringed but justified for security or safety reasons.

    • note: if a person’s life depended on them entering Canada then it would against international refugee laws to not let them in