Fundamental Freedoms - The Charter of Rights and Freedoms
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Supreme Court of Canada

Case Law

Section 7 - Right to life, liberty and security of the person

Reference Re: B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (Supreme Court of Canada)
A law said a person could be put in jail for driving when his or her license was under suspension, even if a person did not know the license was suspended. The Court decided that this law violated section 7 rights. It is a principle of fundamental justice that people can only be sent to jail if they knew they did something wrong.

Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 (Supreme Court of Canada)
Ms. Rodriguez had a severe terminal disease and wanted help to end her life. The Criminal Code prevents a person from helping someone commit suicide. The Court said that section 7 protects values of liberty, security of the person and the sanctity of life. By preventing Ms. Rodriguez from getting help to end her life, the law interfered with her right to security of the person. The Court then balanced her personal right to security of the person with society's overall interest in protecting life and the possibilities of abuse of assisted suicide. It decided that ultimately, the law preventing assisted suicide did not violate section 7.

New Brunswick (Minister of Health and Community Services ) v. G. (J.) (Supreme Court of Canada) [1999] 3 S.C.R. 46
The state was taking court action to remove children from their mother. The Court decided that the threat of losing her children risked the mothers security of the person under section 7. The principles of fundamental justice required that the court hearing about the custody of the children be fair. In this case the mother needed legal help to have a fair hearing. Because the mother could not afford a lawyer, the Court decided that fundamental justice required the government to provide her with a state-funded lawyer.

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 (Supreme Court of Canada)
Deporting a person to a country where he or she faces a serious risk of torture can take away rights protected by section 7 (liberty, security of the person and perhaps life).

Regina v. Morgantaler, [1988] 1 S.C.R. 30 (Supreme Court of Canada)
The Court decided that the law preventing women from having abortions violated section 7. By forcing a woman to carry a child to term, the state violated her liberty and her right to security of the person.

Chaoulli v. Quebec (Attorney General), 2005 SCC 35 (Supreme Court of Canada)
A Quebec law prohibited health insurance for private health services if these services were available in the public health care system. The purpose of this law was to discourage a two-tier health care system. The Court decided that the long waiting lists for public health care caused psychological and physical suffering. This violated the security of the person. This section 7 violation was not justifiable under section 1 of the Charter because, for example, no connection was shown between prohibiting private health insurance and having a strong public health care system.

United States v. Burns, [2001] 1 S.C.R. 283 (Supreme Court of Canada)
This case was about removing two people from Canada to face murder charges in the United States. If they were found guilty, they could face the death penalty. The Court decided that, other than in exceptional circumstances, it violated principles of fundamental justice under section 7 to extradite people into a situation where they could face the death penalty.

Regina v. Ruzic, [2001] 1 S.C.R. 687 (Supreme Court of Canada)
Duress can be used as a legal defence by people who were threatened or forced into criminal acts. The Court decided that a law limiting this defence violated the principles of fundamental justice because someone who was not morally blameworthy could be criminally convicted.

For more on principles of fundamental justice see: Regina v. Herbert, [1990] 2 S.C.R. 151 (Supreme Court of Canada) (the right to silence when questioned by police); Regina v. Stinchcombe, [1991] 3 S.C.R. 326 (Supreme Court of Canada) (the right to disclosure of information from the prosecution); Regina v. Seaboyer, [1991] 2 S.C.R. 577 (Supreme Court of Canada) (the right to make full answer in defence); Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6 (Supreme Court of Canada) (section 7 does not protect business rights)

Section 8 - Protection from unreasonable search and seizure

Regina v. Tessling, [2004] 3 S.C.R. 432 (Supreme Court of Canada)
An airplane flew over a house to measure the heat coming from it. This was being done because the police suspected marijuana was being grown in the house. The police did not have a search warrant to measure this heat. The Court decided that a warrant was not needed because the information about the heat was open to the public and did not reveal intimate or biological information about people in the house.

Section 9 - Arbitrary detention or imprisonment

Regina v. Mann, [2004] 3 S.C.R. 59 (Supreme Court of Canada) (Detention for the purpose of investigation is does not violate section 9) Regina v. Therens, [1985] 1 S.C.R. 613 (Supreme Court of Canada) (Psychological compulsion can be detention under section 9) Regina v. Ladouceur, [1990] 1 S.C.R. 1257 (Supreme Court of Canada) (Random spot checks of drivers can violate section 9, but might be justifiable under section 1).

Section 10 - Rights when arrested

Regina v. Orbanski; Regina v. Elias, 2005 SCC 37 (Supreme Court of Canada)
The Court decided that police violated section 10 if they did not tell drivers of the right to counsel before asking drivers whether they had been drinking and doing roadside tests. The Court then decided that this violation was justifiable under section 1 of the Charter because of the importance of roadside tests in reducing harm to society from drunk driving.

Regina v. Brydges, [1990] 1 S.C.R. 190 (Supreme Court of Canada)
If a person who has been arrested is hesitant to speak to a lawyer because of cost, the police must let the person know of free legal help.

Section 11 - Rights when charged with an offence

Regina v. Wigglesworth, [1987] 2 S.C.R. 541 (Supreme Court of Canada)
Section 11 rights will not necessarily apply to professional disciplinary cases. Section 11 only applies where there is a true element of punishment.

Regina v. Askov, [1990] 2 S.C.R. 1199 (Supreme Court of Canada)
It took two years for a case to get to trial. Delay caused by a backlog in courts can violate a persons right to have a trial in a reasonable time.

Regina v. Oakes, [1986] 1 S.C.R. 103 (Supreme Court of Canada)
Under the law being challenged, if people possessed even a small quantity of a drug it was presumed that they had the drug for the purpose of trafficking, unless they proved otherwise (reverse onus). The Court decided that this law violated the right to be presumed innocent until proven guilty, and this limit was not justified under section 1 of the Charter.

Section 12 - Protection from cruel and unusual punishment

Regina v. Smith, [1987] 1 S.C.R. 1045 (Supreme Court of Canada)
A law required a minimum seven year jail term for bringing illegal drugs into Canada. This minimum jail term applied if there was a small amount of drugs for personal use or a large amount for trafficking. This punishment did not take into account individual circumstances. The Court decided that a required minimum jail term of seven years was cruel and unusual under section 12. The punishment could be out of all proportion to the seriousness of an act and outrage society's standards of decency.

Section 13 - Protection from self-incrimination
Regina v. Kuldip, [1990] 3 S.C.R. 618 (Supreme Court of Canada)
The Court decided that at a re-trial, an accused person can be cross-examined on what he or she said at the first trial for the purpose of showing whether the person could be believed, but not to prove guilt.

Section 14 - Right to an interpreter

Regina v. Tran, [1994] 2 S.C.R. 951 (Supreme Court of Canada)
An interpreter in a criminal case gave a summary of testimony to the accused person but did not translate all of it. The Court decided that section 14 guarantees a right to continuous, precise, impartial, competent, and contemporaneous interpreting. A person must know the case against him or her and be able to respond.

Pierre E. Trudeau, 1972. Justice to me is a warm spirit, born of tolerance and wisdom, present everywhere, ready to serve the highest purposes of rational man.  To seek to create the just society must be amongst the highest of those human purposes.
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