Life, liberty and fundamental justice: section 7

Desjardins opens Lesson 3 with a story most of the class already knows from the news: a man who spent more than a decade in prison for a crime he did not commit, convicted on the strength of a confident eyewitness and a jailhouse informant, freed only when DNA testing pointed to someone else. He asks the class what went wrong. Priya Sandhu says the eyewitness was mistaken. Jesse Morningstar says the informant lied. Desjardins agrees, then adds a third answer that unsettles them: the police procedures made both errors more likely. The lineup was built around the suspect, the officer running it knew which photo was the suspect's, and the informant was promised a deal that the defence never heard about. Each step was a failure of what section 7 of the Charter calls fundamental justice.

What section 7 protects

Section 7 says that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Liberty is engaged whenever the state threatens imprisonment, which means every criminal prosecution that can lead to jail. Security of the person covers bodily integrity and serious state-imposed psychological stress. The principles of fundamental justice are the basic tenets of the legal system. The Supreme Court has recognized many of them, including the right to silence, the right to full answer and defence, the requirement that laws not be arbitrary, overbroad or grossly disproportionate, and the rule that morally innocent people should not be punished.

Section 7 is broad and works partly as a reservoir: the specific rights in sections 8 to 14 are examples of the principles of fundamental justice, and when a situation is not covered by one of them, section 7 can fill the gap. For police, section 7 matters most in four areas: how they gather and preserve evidence, how they disclose it, how they question people, and how they conduct undercover and sting operations.

Fair identification procedures

Mistaken eyewitness identification is the leading factor in wrongful convictions that DNA evidence later overturned. The Sophonow inquiry in Manitoba in 2001, chaired by former Supreme Court Justice Peter Cory, examined how Thomas Sophonow came to be convicted of a murder he did not commit, and made recommendations that most Canadian police services now follow. The Supreme Court has also cautioned courts repeatedly about the frailties of identification evidence, noting that a witness's confidence says little about accuracy.

Good practice, drawn from both research and the inquiry recommendations, now looks broadly the same on both sides of the border. The lineup should be administered blind, by an officer who does not know which person is the suspect, so that the officer cannot give cues, even unconsciously. The witness should be told that the person may or may not be present and that the investigation will continue either way. Fillers, the non-suspects, should match the witness's description so the suspect does not stand out. Photos should be shown in a way that prevents comparison shopping, often one at a time. And the witness's confidence should be recorded in their own words immediately, before any feedback, because confidence grows after a witness is told they picked the right person.

A simple measure of lineup fairness is the mock witness test. People who never saw the crime are given only the witness's description and asked to pick who matches best from the lineup. If the lineup is fair, their picks should be spread across all the faces. If most of them pick the suspect, the lineup is suggestive, because the suspect is the only one who fits. Researchers summarize this with a number called the effective size: roughly how many faces in the lineup are real choices.

# Mock witness test for two six-person photo lineups.
# 60 people who never saw the crime read the description and pick the best match.
lineups = {
    "lineup A": [11, 9, 12, 8, 10, 10],    # suspect is position 3
    "lineup B": [4, 3, 38, 6, 5, 4],       # suspect is position 3
}
for name, picks in lineups.items():
    total = sum(picks)
    shares = [p / total for p in picks]
    # Effective size: 1 / sum of squared shares (equals 6 when picks are spread evenly)
    effective = 1 / sum(s * s for s in shares)
    suspect_share = shares[2]
    print(f"{name}: suspect chosen {picks[2]} of {total} ({suspect_share:.2f}), effective size {effective:.1f}")

lineup A: suspect chosen 12 of 60 (0.20), effective size 5.9
lineup B: suspect chosen 38 of 60 (0.63), effective size 2.3

In lineup A the picks are spread out, the suspect is chosen about one time in six, and the effective size is close to the full six faces. In lineup B the suspect draws 38 of 60 picks and the effective size is about 2.3: for practical purposes, the witness had only two real choices. An identification from lineup B would be weak evidence, and a court could give it little weight or find the procedure unfair.

Preserving and disclosing evidence

The Supreme Court held in R. v. Stinchcombe in 1991 that the Crown must disclose all relevant information in its possession to the defence, whether it helps or hurts the prosecution, as part of the right to make full answer and defence under section 7. Police have a corresponding duty to give the Crown everything relevant from the investigation, including notes, recordings, witness statements, and information that undermines their own theory. In R. v. La in 1997, the Court held that lost or destroyed evidence can breach section 7 if the loss was the result of unacceptable negligence, and in R. v. McNeil in 2009 it extended disclosure to records of serious police misconduct that could affect a case.

For officers, the practical rule is simple: everything goes in the file. Desjardins tells the class about a case in which an officer left out a witness's statement that the suspect was 'shorter than me', because the officer thought the witness was confused. Months later the statement surfaced, the defence argued the investigation had been shaped to fit the suspect, and the case fell apart. If the officer had included the note and explained it, there would have been nothing to argue about. Disclosure failures are rarely about hiding the truth deliberately; they are usually about an officer deciding, alone, what is relevant.

Questioning and the principle against self-incrimination

The Supreme Court held in R. v. Hebert in 1990 that the right to silence is a principle of fundamental justice under section 7. Police may not use tricks that effectively override a detained person's choice to remain silent, such as placing an undercover officer in the cell to actively elicit statements. The common law confessions rule, restated in R. v. Oickle in 2000, separately requires the Crown to prove beyond a reasonable doubt that a statement to a person in authority was voluntary. Lesson 8 covers both in detail. Section 7 also governs the so-called Mr. Big technique, in which undercover officers invite a suspect into a fictitious criminal organization; in R. v. Hart in 2014, the Court held that confessions obtained this way are presumptively inadmissible unless their probative value outweighs their prejudicial effect, and that abusive tactics can amount to an abuse of process.

Undercover work, informants and entrapment

Entrapment in Canada is part of the abuse of process doctrine under section 7. In R. v. Mack in 1988, the Supreme Court held that police entrap when they offer someone the opportunity to commit a crime without reasonable suspicion that the person is already involved in that kind of crime, or when, even with that suspicion, they go beyond providing an opportunity and induce the crime. In R. v. Ahmad in 2020, the Court applied the rule to dial-a-dope investigations, holding that police need reasonable suspicion about the particular phone number or person before offering to buy drugs, though they may investigate a specific, well-defined location where crime is reasonably suspected. The remedy for entrapment is a stay of proceedings.

Informants raise their own due process issues. Jesse asks why police use people who might lie. Desjardins answers that informants often have information no one else can get, but their motives, whether money, leniency or revenge, have to be recorded and disclosed. Every promise, payment and prior unreliable tip belongs in the file. The Crown must disclose them subject to informer privilege, which protects the informant's identity except where innocence is at stake. An informant whose deal is hidden is the kind of witness who produces wrongful convictions.

Vague laws and police discretion

A law that is so vague that it fails to give fair notice or limit enforcement discretion violates section 7. The Supreme Court has set a high bar, saying a law is unconstitutionally vague only if it does not provide an adequate basis for legal debate, but the principle explains why police powers must be defined in terms a court can review. The lesson for officers is that a power which depends entirely on the officer's personal view of who seems suspicious is exactly the kind of power courts distrust.

Tunnel vision and the duty to investigate fairly

Fundamental fairness also shapes how investigations are run, not only how evidence is handled at the end. Inquiries into wrongful convictions on both sides of the border have identified tunnel vision as a recurring cause: investigators settle on a suspect early and then interpret every new fact as confirming their theory, while ignoring or explaining away facts that point elsewhere. Commissions in Canada, including the inquiries into the wrongful convictions of Guy Paul Morin and David Milgaard, recommended training on tunnel vision and policies requiring investigators to record and follow up alternative suspects.

Desjardins gives the class three habits that guard against it. First, write down every lead, including the ones that seem to point away from the suspect, and record what was done with each. Second, ask a colleague who is not invested in the case to argue the other side before charges are laid. Third, treat disconfirming evidence as just as important as confirming evidence: a witness who says the suspect was elsewhere, a fingerprint that does not match or a timeline that does not fit deserves the same effort as a piece of evidence that supports the theory. These habits are not legal requirements in themselves, but they are what fair process looks like in practice, and they produce the kind of complete file that disclosure obligations demand.

Jesse asks whether these habits slow investigations down. Desjardins concedes that they take time at the start but says they save far more at the end, because a case built on a tested theory survives cross-examination and a case built on an untested one often does not. He also points out that wrongful convictions leave the real offender free to harm someone else, so fairness to suspects and protection of the public turn out to be the same goal.