Sex, Drugs & Assisted Dying: Introduction

  • August 08, 2016

The boundaries of freedom are difficult to define. Indeed, arguing for “freedom” is complex because freedoms so often collide. When LGBTQ students want to freely attend any Canadian law school, and a new Christian law school wants to freely admit students who share common values, vague references to freedom fail to engage with the nuances involved in these conflicts. Freedom is tough. And tough issues, like tough cases, are best resolved through adversarial discourse.

Many of the most significant conflicts in history relate to freedom. Some of these conflicts – like freedom from slavery – were resolved long ago, though their legacies remain to this day. Other conflicts – like being free to use the washroom that aligns with your gender identity or being free to bear arms – are the most divisive conflicts in our modern society. No matter where you fall on these issues, it is undeniable that freedom is a focal point of controversy.

In the Canadian context, conflicts relating to freedom have been particularly pronounced in recent section 7 Charter decisions. Section 7 provides everyone with a qualified right to “liberty”, and this right has, for better or worse, fundamentally changed the Canadian legal landscape in just the past few years. From sex work to medical assistance in dying, section 7 of the Charter has had a pronounced impact on the Canadian conception of freedom. And this impact has received both warm praise and harsh critique. In our view, both the praise and critique are essential ingredients in a robust legal discourse. 

Like any complex conflict, there are many sides to the story. Our hope is that with this publication – as with our previous edition wholly devoted to the Trinity Western University debate – we can provide you, the reader, with some of those stories. Stories that make you question your assumptions and reflect on your views, thus further informing the Canadian debate on freedom – where it has come, and where it should go next.

The first section of this publication discusses whether section 7 of the Charter should be given a broad or narrow interpretation. As section 7 is the centre of so many legal freedom debates, these two pieces strike at the heart of the recent freedom revolution in Canadian jurisprudence.

The remaining sections discuss three topical examples where freedom is currently in conflict: alternative sexual practices (BDSM), drug regulation, and medical assistance in dying. We have gathered authors from across Canada to passionately argue about these crucial issues. We encourage readers to read all of these articles. Both the ones they agree with, and, more importantly, those that they do not agree with. It is only through challenging our views that we as a society can test the merit of the status quo, and identify opportunities for change.

Freedom is an abstract concept. But its consequences are very, painfully real. In Orlando, too much freedom killed 49 LGBTQ civilians, while too little freedom prevented many LGBTQ civilians from donating blood to mitigate this horrific tragedy. So – read these articles, join the debate, and take part in the Canadian conversation on freedom. It is a conversation worth having.


Joshua Sealy-Harrington articled at the Federal Court for the Honourable Justice Donald J. Rennie, worked as a Litigation Associate for two years at Blake, Cassels & Graydon LLP, a CBA Partner Firm, and will be clerking for the Honourable Justice Clément Gascon at the Supreme Court of Canada this fall. His publications centre on criminal law, the Charter, and critical theories.

Ola Malik is a Municipal Prosecutor with the City of Calgary, a CBA Partner Organization, where he writes frequently on cases involving Charter issues.  Ola is a past co-chair of the Access to Justice Committee, a members of the Editorial Committee, and the incoming Alberta Branch Secretary for 2016-17.