Sullivan: Can a Section 7 Violation Ever Be Saved Under Section 1?

It should not be a great surprise to anyone that s 33.1 of the Criminal Code violates ss 7 and 11(d) of the Charter : Bill C-72, the legislation introducing the section, implicitly acknowledged that result by setting out, in its preamble, the substance of the eventual s 1 argument that would need to be made. It is bit of a surprise that it took 25 years before that s 1 argument was tested in a Court of Appeal, but even there it can be noted that, by design, the circumstances in which the defence removed by s 33.1 would even be potentially applicable are extremely unlikely to arise. The section has been challenged 13 times in superior courts since 1995-- "only" 13 times, one might say-- and in every instance the section has been found to violate a Charter section. On the question of whether that violation was saved, however, courts have been more or less equally divided.