Deprivations of Liberty: The Impact of the Charter on Substantive Criminal Law

Canadian jurisprudence recognizes that the right to liberty enshrined in section 7 of the Charter includes the right to make fundamental personal decisions free from state interference. In a similar vein, American jurisprudence recognizes that substantive due process under the Fifth Amendment includes certain unenumerated fundamental freedoms which can be exercised free from state interference. Both jurisdictions apply a form of strict scrutiny when fundamental freedoms are at stake, and this scrutiny requires the state to advance a narrowly tailored and compelling interest to override the exercise of a fundamental personal decision. This paper explores whether the development of substantive review under section 7 of the Charter, and the American Fifth Amendment, has led to a definable zone of self-sovereignty that is beyond the scope of the state’s criminal law power. It is argued that this zone of self-sovereignty has not clearly emerged in Canada with the exception of strong Charter protection for medical choices. The courts have not consistently and clearly defined the types of choices that can be characterized as a fundamental personal decision, and in cases in which the impugned conduct has been characterized as fundamental, the courts have often applied a highly deferential standard of review to the state’s justificatory claims in support of the need to criminalize the conduct in question. Substantive review under section 7 of the Charter can be a powerful tool for the review of public policy decisions to criminalize conduct, but the power is sparingly used and its potential remains underdeveloped and uncertain