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Lecture 13

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McMaster University
Political Science
Greg Flynn

Life, Liberty and Security of the Person 1. Section 7 – everyone has the right to life, liberty and security. 2. Who Can claim benefit? a. Everyone – which means everybody, however the courts have interpreted section 7 differently than other rights. Normally this will include corporations but in the context of section 7 because only those with a living physical life are entitled to this right. b. Corporations Irwin Toy v. Quebec –all artificial persons is incapable of possessing life, liberty and security of the person (corporations, unions, political parties, etc). However, courts can employ section 7 in a negative sense that they can argue the law infringes upon the rights of an individual person and therefore is not constitutional. They can regulate criminal charges on this basis. R v Wholesale Travel [1991] SCR 177 – advertised that it sold travel packages at a wholesale price – you are buying from the middle price. Wholesale travel group was saying that you can go with the usual agency or go with us and pay less. In fact they were selling the packages at retail price. They were charged for false and misleading advertising under competition act. They court held it since the charge in the act can also be brought against an individual and the corporations can contest it on the constitutionality of it. this is where you can see a corporation asserting a negative right, false and misleading advertising can be applied to a person, and section 7 applies to a person therefore it does not apply to us. c. Non- Canadians – can claim benefits of section 7. This is the right under which positive law was determined. Singh v. Min. Emp. & Immigration – 7 individuals who were not Canadians and have applied under refugee claim to stay in Canada, back then the statute required that the people claiming should file a case and if it is good enough there will be a hearing. The court held it saying it infringes upon the rights of the people. The decision said that, ‘every human being who physically present in law…is able to claim the benefits of the charter’. 3. Limitations of LLSP a. Section 33 – can be overridden by the government using the notwithstanding clause. b. Section 1- government can violate section 7 rights if they can justify it in a free and democratic society. c. Section 7 – ‘except’- the right to life, liberty and security of the person, all 3 of those are subject to qualifier after the words except to the principles of fundamental justice. If your life, liberty and security of the person are done so with fundamental justice then your rights have not been violated.Any law that physically incarcerates you, that is, the entire criminal code would violate the entire section 7 if not for this qualifier. There are no other rights in the charter that contain this limitation. That the government can justify its limitation of the right by the right itself. If the government does violate this right, it can still justify it under section 1. Ultimately the individuals who has to proof whose right has been violated that is life, liberty and security of the person and that right is contrary to principles of fundamental justice. To determine this we do the following: Section 32 (33) – right violated? Right violated (onus on the person to proof the right violated is contrary to principles of fundamental justice) Section 7  life, liberty and security of the person  contrary to principles of fundamental justice Section 1 – reasonable limits justifiable in a free and democratic society (onus on the government) 4. Definitions a. Life – fairly clear, you have the ability to claim right to life if you are alive. There is some ambiguity when we being to look at the end of the spectrum: when does life began or when it ends? R v Morgentaler (No.2) 1988 – the case that struck down our abortion laws. In this case the majority held that the term everyone does not include a fetus and that is where the Supreme Court stops. They didn’t say whether the fetus has rights under the Charter or not. In a general sense, the Supreme Court does not want to give a definitive answer as to when life begins. Tremblay v. Daigle [1989] 2 SCR 530- couple that found themselves in a situation, Ms. Daigle was pregnant but did not want the child. Mr. Tremblay wanted the child and was happy to take care and provide for it but that would require Ms. Daigle to carry the children. He entered an injunction in the Court to uphold her abortion. Ms. Daigle appealed it. During the case, Ms. Daigle went to US and got the abortion. Under different circumstances the court doesn’t hear about cases that do not stand anymore, as in, the issue is not present anymore. The case was still heard, but under Quebec Charter of rights and freedom (ordinary statute that contains all the rights in the Canadian charter but it is broader). The issue in this case was the meaning of life under Quebec charter of rights, the court held that the fetus is not a human being for the purposes of th
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