Section 7 of the Charter and National Security: Rights Protection and Proportionality versus Deference and Status

31 Pages Posted: 24 Aug 2012

See all articles by Kent Roach

Kent Roach

University of Toronto - Faculty of Law

Date Written: 2012

Abstract

This paper examines section 7 jurisprudence in the context of national security cases involving collective security considerations and/or Canada’s interactions with other states on security-related matters. National security, like section 7 of the Canadian Charter of Rights and Freedoms, spans the traditional divides between administrative, criminal, extradition and international law. The paper identifies two distinct strands in the jurisprudence: one associated with rights protection and a requirement that any limits on rights be justified as proportionate, and another based on an a priori deference to governments, consideration of the status of individuals — notably non-citizens — and respect for the sovereignty of other nations. The paper concludes that despite some post-9/11 attraction to deference and status concerns, rights protection and proportionality concerns may eventually win out, especially when supported by concerns about compliance with international human rights commitments and the reconciliation of rights protection with the fulfillment of various national security goals.

Keywords: Charter, national security, rights protection

Suggested Citation

Roach, Kent, Section 7 of the Charter and National Security: Rights Protection and Proportionality versus Deference and Status (2012). Ottawa Law Review, Vol. 42, No. 3, p. 337, 2012. Available at SSRN: https://ssrn.com/abstract=2135169

Kent Roach (Contact Author)

University of Toronto - Faculty of Law ( email )

Toronto, Ontario M5S 1A1
Canada
416-946-5645 (Phone)
416-978-2648 (Fax)

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