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C LASS N OTES FOR : P OLI S CI 3NN6
McMaster University, Winter 2014
M ONDAY , FEBRUARY 24, Y
Life, LiberAND Security of the Person
1. Section 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
- Applies to all natural persons within the country itself.
2. Who can claim benefit?
- Section 7; while everyone would include things like corporations,
- The only claimants are actually natural persons
- Only individuals who can assert “life”
• Artificial persons are incapable of possessing any of these meanings of
• Modified however in the case of R.V wholesale travel group
Irwin Toy v. Quebec
R v. Wholesale Travel
- Corporation can assert a section 7 claim, but primarily as a defendant to
- Corporation can use a right in the negative sense
- FACTS: Wholesale travel group is a travel agency, sold travel packages as
“wholesale”, but were not “wholesale” but instead were retail
a. Charged with false and misleading advertisement, contrary to the
b. Said that this violated their right of liberty.
c. If a law is solely applicable to corporations and artificial persons have
nothing on section 7.
d. Corporate tax act, cannot assert that this violates section 7, because
individuals are not subject to this act, but only corporations.
Singh v. Min emp. & Immigration
- This is the case where 7 individuals were asserting the rights to have hearing
- Argument: “These are people who are not Canadian citizens, who are illegal
and should not get the same benefits”
a. IF YOU ARE within the four walls of Canada, you can claim the benefit
of the charter rights.
3. Limitations of LLSP
a. Section 33
• If gov’t of Canada uses the notwithstanding clause can infringe upon
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• Esoteric: locking people up without cause. Assuming you used the
notwithstanding clause. Significant power that the gov’t has if they
choose to use it!
b. Section 1
• Right can be violated if it’s justifiable in a free and democratic society to
c. Section 7 - “except”
• If gov’t deprives you of your rights, liberty and security of person in
accordance with principles of fundamental justice, then this is OK.
• Act of gov’t that seeks to impose some form of incarceration is a
limitation on liberty!
• As long as they have due process in place, it’s OK to infringe on
• It is a limitation to our rights, liberties and securities of person.
• Ambiguity of this concept when get to the beginning and endings of life
R. V. Morgentaler (No.2)
- Advocate and performer of abortion procedures in Canada
- Right of a woman to choose her reproductive outcomes
- In the 1970s, Dr. Morgentaler was performing abortions, charged criminally
- Supreme court of Canada upheld conviction against Morgentaler:
- Again performing abortions, Acquitted and sent back and Supreme Court of
Canada struck down abortion laws. It is unregulated and no restrictions.
- SUPREME COURT: The term everyone does not include a FETUS and
therefore a fetus does not claim rights under section 7, however the Supreme
Court was ambiguous whether the fetus could have any other rights under the
charter of rights and freedoms.
Tremblay v. Daigle 
- Daigle got pregnant and decided to have an abortion, and Tremblay went
to the court and decided to have an injunction to prohibit her from having an
- The injunction prohibits me from having an abortion in Canada, and she
went to have an abortion in the United States.
- Issue was now rendered irrelevant and the Supreme Court decided to
hear this case and said that a fetus was not a human being.
R .V Sullivan
- Midwives, something went wrong and ended up in partial birth
- Mother was rushed to the hospital
- Midwives were both charged with criminal negligence causing death
- A child has to be born alive and be separated from the mother alive.
- It is only on
Rodriguez V. BC 
- What about the end of life?
- The right to die does not include the right to have assistance in death?
- Someone physically unable to commit suicide is not allowed to have
someone help him or her commit suicide.
• Freed from physical restraint
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i. Freedom from physical restraint
a. Any law that imposes a penalty if imprisonment whether
mandatory or optional, liberty into question, viewed as an
interference in liberty.
b. Freedom from physical restraint
Re: B.C Motor Vehicles Act
- Sought to amend the statute a number of ways
- Instead of going through the court cases, it referred to the legality of
the act itself
- True reference where the gov’t was seeking the court’s opinion on the
constitutionality of the legislation
- FREEDOM from physical restraint is not just incarceration, but any
form of punishment that goes to constraints an individual behaviour or
compels them to act in a particular fashion. It’s not just incarceration,
but a broader perception of liberty.
What about a fine?
A fine is not a depravation of liberty
Once a person has been convicted and sentenced to a term of
imprisonment, anything to alter such as increasing it beyond what
the court initially imposed.
• Two exemptions
o Dangerous offenders designation
Allows the crown to apply after someone
has served their sentence that the individual
is a dangerous offender, and if they’re found
to be a dangerous offender they stay in jail.
Protected under section 1
Intent to kill or dangerous
o Long term offender
o Two provisions in the criminal code,
ii. Freedom from interference with fundamental personal choices
R. v. Morgentaler (No.2)
- Madam Justice Liberty expressed a larger view of “liberty”
- Statement of the law persuasive it wasn’t binding
- Liberty also included interference from fundamental choices,
- The personal choice as to whether end a pregnancy or to go through
Blencoe v. B.C (2000) 2SCR 307
- FACTS: Blencoe was a cabinet minister in the B.C cabinet who
was accused of sexual harassment, and created all kinds of media
interest and scandal with a cabinet minister being accused of sexual
harassment and then resigned.
o Until the human rights commission could deal with the
o Slow to hear the complaints levied against him
- Blenco had a motion to move the hearing, and filed a complaint
that this was a violation against his liberty and was suffering due to
the delay in decision
- Court disagreed Decision to sit in Cabinet is not of Blenco, but of
the minister. It was not his choice.
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o Did adopt the idea that liberty was more than physical
restraint, it applies whenever the law prevents someone
from making fundamental personal choices
o TWO TESTS
FREEDOM FROM PHYSICAL RESTRAINT
FREEDOM FROM INTERFERENCE FROM
FUNDAMENTAL PERSONAL CHOICES
• We do not know what constitutes a
fundamental personal choice. (right to
have an abortion, right to end your own
iii. Economic liberty
- Liberty from interference from your property.
- Definition does not include property or freedom of contract, as
such as rights from section 7 do not contain economic liberty whatsoever.
Prostitution Reference 1990
- Supreme court of Canada said no; there is no inherent right to
contract in the charter
c. Security of the Person
R. v. Morgentaler (No.2)
- Case where the limits around abortion rights were struck down,
- Criminal codes provisions imposed restriction on abortion - required that a
woman, obtained an approval from a therapeutic abortion committee from an
approved hospital and once she had this certificate, she was free to obtain an
- Problem; was that she could only obtain an abortion in the first
- Some hospitals refused to set up a therapeutic committee and