View cases - Stewart McKelvey

person is free or at liberty when there is an absence of obstacles or impediments. Nothing furtheris required beyond this absence. However, to say that a person has a “right” is to implysomething further. It suggests that a claim can be made on someone else in order to be providedwith the object of the right.[191] It is possible to describe a freedom in terms of rights, but this may only serve to blurthe distinction between what is being protected in either case. A freedom exists to protect a2011 SCC 20 (CanLII)sphere of autonomy, an area within which the individual will encounter no obstacles. A right, onthe other hand, exists to provide an individual with a claim to some specific thing. Generally, afreedom can be described as a right only if it is recognized that the right is “negative” incharacter, that is, only if it is described as an entitlement to be free of restriction or prohibition.[192] An example of how a freedom can sometimes be described using the word “right”can be found by examining ss. 7 to 12 of the Charter. When the Charter uses the term “right”,as it does in ss. 7 to 12, either a positive entitlement is introduced, or a right to be free of somerestriction or prohibition (i.e. a freedom) is introduced. For the positive rights, an individual isgiven a right to some form of state action, e.g. to be advised of a right to counsel upon arrest.For the negative rights, the individual is given a right to be free from some form of restriction orprohibition, e.g. a right not to be arbitrarily detained or imprisoned. As discussed above, theright to be free of a restriction or a prohibition is a description that encompasses the “negative”character of the right, and is simply another way to describe a freedom.