I want to come back to Carter v. Canada (Attorney General), 2015 SCC 5, the Supreme Court’s decision striking down an absolute prohibition on assisting a person to commit suicide, to comment on an aspect of the Court’s reasoning that seems, as best I can tell, to have attracted little attention. The Court found that, as applied to “physician‑assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering,” the prohibition is contrary to section 7 of the Charter. Over at ABlawg, Jennifer Koshan has pointed out that “the Court’s reasons do not add much to the existing jurisprudence defining the scope of section 7.” That is true, so far as it goes. But Carter is a very unusual section 7 case all the same ― not because of what the Court says about section 7 itself, but because of what it says, and does, about the interaction between section 7 and section 1.
In Re B.C. Motor Vehicle Act,  2 S.C.R. 486, Justice Lamer (as he then was) alluded to “war, natural disasters or epidemics” as circumstances in which section 1 could justify infringements of section 1 (albeit that Justice Lamer was specifically discussing infringements motivated by “administrative convenience,” and not some weightier objective). We have (mostly) escaped such ordeals, and all the way up to the (relatively) recent landmark decisions in the Insite case, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44,  3 S.C.R. 134, and Canada (Attorney General) v. Bedford, 2013 SCC 72,  3 S.C.R. 1101, section 1 has played virtually no role in section 7 cases. Unlike with most other provisions of the Charter, a finding that section 7 is infringed is as good as the end of the matter. Often, the government will not even make more than a perfunctory attempt to invoke section 1.
Carter changes that. The Court points out that
It is difficult to justify a s. 7 violation … . The rights protected by s. 7 are fundamental, and not easily overridden by competing social interests … . And it is hard to justify a law that runs afoul of the principles of fundamental justice and is thus inherently flawed. [95; internal quotation marks omitted]
Nevertheless the Court says that
in some situations the state may be able to show that the public good — a matter not considered under s. 7, which looks only at the impact on the rights claimants — justifies depriving an individual of life, liberty or security of the person under s. 1 of the Charter. 
Indeed, the Court embarks on a section 1 analysis which, although in some ways conclusory (as I have argued here), is unusually lengthy by the standards of previous section 7 jurisprudence. More importantly, it states that
The question in this case comes down to whether the absolute prohibition on physician-assisted dying, with its heavy impact on the claimants’ s. 7 rights to life, liberty and security of the person, is the least drastic means of achieving the legislative objective. … This question lies at the heart of this case. [103-104]
And so we must ask the question: is the Court is really opening the door to violations of section 7 being justified under section 1? This would be a big deal, and would force us to revise some widely held assumptions ― for example, about the unconstitutionality of the former Bill C-36, the anti-sex-work legislation Parliament enacted in response to the Court’s judgment in Bedford. (Though Michael Plaxton, for one, had cautioned against making such assumptions well before Carter.)
In Carter, the Court suggested that section 1 might save a law that infringes section 7 “particularly in cases … where the competing societal interests are themselves protected under the Charter”  ― Carter being one such case of course. This is, arguably, a logical line to draw. To violate “principles of fundamental justice” in the name of administrative convenience is one thing; to do it in order to protect life, liberty, or the security of individuals is something different.
Perhaps remarkably, few if any of the big section 7 cases actually dealt with laws that aimed squarely at protecting Charter rights rather than at some other, more pedestrian objective. At best, they aim at furthering diffuse interests such as “public health” and “public safety” ― not the individual health and safety of the people whose rights they restrict. (Criminal law would usually fall in that category. It does protect our right to the security of the person, and even our rights to life and liberty in some cases, but only indirectly, mostly through the rather uncertain mechanism of deterrence.) At worst, they are justified by administrative convenience. The restrictions on sex work struck down in Bedford, which the Court found sought to prevent nuisances, were arguably somewhere in the middle of that spectrum.
Assuming, then, that section 1 will (mostly?) be used to justify infringements of section 7 where the purpose is to protect defined rights of specific persons (and perhaps especially, the rights of more or less the same persons whose rights are being infringed), how common will such cases be? The experience of the last 30 years suggests that they will be few and far between. But at least one such future case readily comes to mind ― that of C-36, which ostensibly aims at protecting sex-workers from exploitation and violations of their dignity.
Carter may, thus, prove a rather more significant part of the Supreme Court’s section 7 jurisprudence than we originally supposed. It calls into question what used to be a safe assumption about that jurisprudence ― that section 1 was not really relevant to it. Of course, in Carter, the Court found that even a full-scale application of section 1 was not enough to save the infringement of section 7. Still, this innovation may yet have consequences ― not very positive consequences, either ― in important future cases.