Guide Liberty Against The Law

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Contents:
  1. MORE BY CHRISTOPHER HILL
  2. KIRKUS REVIEW
  3. The Perfect Law of Liberty
  4. Cultivating Virtuous Citizenship?: A Law and Liberty Symposium on American National Character

Minister of Employment and Immigration , [] 1 S. Hape , [] 2 S. Khadr , [] 2 S. Khadr , [] 1 S. Harrer , [] 3 S.

MORE BY CHRISTOPHER HILL

Terry , [] 2 S. Canada Attorney General , [] 1 S. Burns , [] 1 S. Canada M. For the extra-territorial application of the Charter more generally, see discussion under section Corporations do not have individual rights protected under section 7 and therefore cannot claim the benefit of section 7 in the same way that individuals can Irwin Toy Ltd.

Quebec Attorney General , [] 1 S. Branch , [] 2 S.

However, a corporation that is accused of a criminal offence, or that is a defendant in a civil proceeding initiated by the state, may raise the Charter in its defence whether or not it enjoys the particular right or freedom in question R. Big M Drug Mart Ltd. Wholesale Travel Group Inc. See discussion under section 52 for more on the circumstances in which corporations may invoke Charter rights as a basis for invalidating legislation.

The administration of justice includes processes operating in the criminal law Gosselin at paragraphs , as well as a variety of other circumstances including child protection proceedings and immigration proceedings where section 7-protected rights are at stake Blencoe; G. Canada Citizenship and Immigration , [] 1 S. Harkat , SCC 37 , at paragraph Quebec A.

To date, section 7 has not been interpreted as imposing a positive obligation on the state to ensure the enjoyment of life, liberty and security of the person, but the Court has not foreclosed this possibility Gosselin at paragraphs Although the government action need not be the only or the dominant cause of the limit, there must be a real, as opposed to a speculative, link.

This standard is satisfied by a reasonable inference, drawn on a balance of probabilities Bedford v. Canada A. The right to life is engaged where the law or state action imposes death or an increased risk of death, either directly or indirectly Carter v. Concerns about autonomy and quality of life are properly treated as liberty and security interests Carter at paragraph Although the sanctity of life is a fundamental societal value, the right to life does not give rise to a duty to live.

Like other rights, the right to life can be waived Carter at paragraph 63; Rodriguez v.

A Legislative and Judicial Analysis from the Perspective of the Individual

British Columbia Attorney General , [] 3 S. The liberty interest protected under section 7 has at least two aspects. The first aspect is directed to the protection of persons in a physical sense and is engaged when there is physical restraint such as imprisonment or the threat of imprisonment R.

Vaillancourt , [] 2 S.

KIRKUS REVIEW

Swain , [] 1 S. Demers , [] 2 S. Ferndale Institution , [] 3 S. Canada Minister of Justice , [] 2 S. Canada , [] 2 S. Heywood , [] 3 S. The physical restraint can be quite minor to engage the liberty component, such that compelling a person to give oral testimony constitutes a deprivation of liberty Thomson Newspapers Ltd.

Canada , [] 1 S. Beare , [] 2 S.

Deportation per se will not engage the right to liberty Charkaoui , supra , at 17; Medovarski v. Canada Minister of Citizenship and Immigration , [] 2 S. Canada Minister of Citizenship and Immigration , [] 1 S. Longueuil City , [] 3 S. Where state compulsions or prohibitions affect such choices, s.

Manitoba Attorney General , [] 1 S.

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The Perfect Law of Liberty

Smith , SCC 34 at paragraph It may also include the ability to choose where one intends to live Godbout, supra , as well as a protected sphere of parental decision-making for parents to ensure their children's well-being, e. It does not, however, encompass lifestyle choices such as the smoking of marihuana R. Malmo-Levine ; R. Caine , [] 3 SCR at paragraphs ; R.

Cultivating Virtuous Citizenship?: A Law and Liberty Symposium on American National Character

Clay , [] 3 S. Conditions of employment requiring employees to be on standby duty, and therefore less available to their families for several weeks a year, do not engage the s. While some lower court decisions have held that liberty in this context includes the right to work or do business Wilson v. QL , the Supreme Court has said that section 7 does not protect freedom to transact business whenever one wishes R.

Edwards Books and Art Ltd. See also Walker v. Prince Edward Island , [] 2 S. Similarly, liberty under section 7 does not appear to protect freedom to contract or the freedom to choose a particular career Chaoulli, supra , at paragraphs Privacy is constitutionally protected primarily under section 8 but it is generally understood that section 7 can offer a residual protection. The Supreme Court has not yet fully explored or developed the contours of a distinct privacy protection under section 7, other than to accept that privacy can be a protected component of the "liberty" and "security of the person" interests.

Although there may be scope for potentially distinct privacy protection under section 7, courts have typically performed the requisite privacy analysis under section 8 see e. Rodgers , [] 1 S. Canada , [] 4 S. Mills , [] 3 S. O'Connor , [] 4 S. A right to privacy under section 7 has, however, been directly applied in lower court jurisprudence See: Cheskes v.

Ontario Attorney General , 87 O. Security of the person is generally given a broad interpretation and has both a physical and psychological aspect. The right encompasses freedom from the threat of physical punishment or suffering e. It is not engaged, however, by the determination of exclusion from refugee protection because the potential risks to health and safety are too remote given the availability of further proceedings prior to removal in which section 7 interests will be considered Febles v.

It will be engaged where the state interferes with personal autonomy and a person's ability to control his or her own physical or psychological integrity, for example by prohibiting assisted suicide or regulating abortion or imposing unwanted medical treatment R. Morgentaler , [] 1 S. Where a criminal prohibition forces a person to choose between a legal but inadequate treatment and an illegal but more effective choice, the law will infringe security of the person Smith , supra , at paragraph Monney , [] 1 S.

Parker , 49 O. State action that prevents people engaged in risky but legal activity from taking steps to protect themselves from the risks can also implicate security of the person Bedford , supra , at paragraphs , 64, 67, In addition, the right is engaged when state action causes severe psychological harm to the individual G. The psychological harm need not necessarily rise to the level of nervous shock or psychiatric illness, but it must be greater than ordinary stress or anxiety.

The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility G. The prohibition of marihuana does not generate a level of stress which engages section 7 Malmo-Levine, supra at paragraph The Court has signaled the possibility that victims of torture and their next of kin have an interest in finding closure that may , if impeded, be sufficient to cause such serious psychological harm so as to engage the security of the person Kazemi Estate v.

It is unclear whether security of the person encompasses the right to privacy comprising a corollary right of access to personal information Ruby, supra. Property or economic rights are not generally included under security of the person insofar as the deprivation does not fundamentally deprive a person of the ability to earn a livelihood.