Engaging Section 7

• Author: Hamish Stewart
• Pages: 22-112

22

CHA PTER 2

ENGAGING SECTION 7

A. INTRODUC TION

To show that his or her section 7 rights have been violated, a Charter

applicant must f‌irst show that section 7 applies to his or her claim, or,

put another way, that the claim engages section 7 of the Charter. This

chapter is concerned with t hat issue: specif‌ically, with the kind of state

action that engages section 7, with the meaning of the word “everyone,”

and with the meaning of the phrase “life, liberty and security of the

person.” The chapter also considers the structura l relationship between

the two parts of sect ion 7: “life, liberty and securit y of the person” on the

one hand and “the principles of fundament al justice” on the other. The

content of the principles of fundamental just ice themselves is the topic

of Chapters 3 through 5.

By the mid-1980s, the Supreme Court of Canada had decided three

issues that are ver y basic to the application of section 7 of the Charter.

First, the Court held that while t he Charter applied to “state action”

of several type s, it did not apply to disputes between private parties

that relied wholly on the common law. Second, the Court held that

section 7 rights, though available only to natural persons and not to

corporations, are available to all n atural persons who are subject to

Canadian law. Third, the Court rejected the view that section 7 created

two distinct right s (a right to life, liberty, and security of the person

and another right to be treated in accordance with the principles of

fundamental justice); i nstead, it interpreted section 7 as guaranteeing

Engaging Sect ion 7 23

the single right not to be deprived of life, libert y, and security of the

person except in accordance with t he principles of fundamenta l justice.

Thus, to demonstrate a violation of her section 7 rights, a Charter appli-

cant must demonstrate the following elements:

(1) there is some state conduct to wh ich the Charter applie s;

(2) the applica nt is a natural pers on or otherwise ha s standing to

invoke a natural pers on’s section 7 rights;

(3) the state conduct affects t he applicant’s (or natural person’s) life,

liberty, or securit y of the person; and

(4) the state conduct is not in accordance w ith the principles of fun-

damenta l justice.

The f‌irst three elements engage section 7; that is, if the applicant ca n dem-

onstrate them, then section 7 applies to the matters in dispute. The f‌irst

element arises in al l Charter litigation. The second element, the standing

requirement, also ar ises in all Charter lit igation, though the dependence of

the claim on the stand ing of a natural person does not. The third element

is particul ar to section 7. This ch apter discusses these th ree elements. The

fourth element — whether the state conduct conforms to the principles of

fundamental justice — is considered in Chapters 3 through 5. If all four

elements are established, then the applicant’s section 7 rights are violated.

B. STATE CONDUC T

The application of the Charter is, in the f‌ir st instance, governed by sec-

tion 32:

32(1) Thi s Charter applies

(a) to the Parl iament and government of Canad a in respect of all mat-

ters withi n the authority of Parliament i ncluding all matters rel at-

ing to the Yukon Territory and the Nort hwest Ter ritories; and

(b) to the legislature a nd government of each province in re spect of

all matters w ithin the authority of the leg islature of each province.

Given this wording, the potential ra nge of the Charter’s applic ation is

very broad. Since every matter that can be regulated by law is, ultim-

ately, “within the authority of” either the federal Parliament or the

provincial legislatures, it might be argued that the Charter applies in

every legal dispute.1 But the Supreme Court of Canada has rejected t hat

1 See, for example, Br ian Slattery, “Charter of Rights and Freedom s: Does It Bind Pri-

vate Persons?” (1985) 63 Canadian Bar Revie w 148; David Be atty, “Constitutional

FUNDAMENTAL JUSTICE24

interpretation, holding instead t hat there must be some element of state

action before the Charter applies.2 In the rest of Section B, I discuss the

application of the Charter to various types of laws and di sputes, with

particular attent ion to cases where section 7 was invoked.

1) Statutes and Regulations

All statutes and regulations have to comply with the Charter, and this

is so whether the statute or regulation comes into play in a dispute

between the state and a private indiv idual or between two private indi-

viduals.3 Therefore, any statute or regulation that deprives a person of

one of the three interests protected by sect ion 7 (life, liberty, or security

of the person) must comply with the principles of fundament al justice,

whether or not the legal relationship governed by the statute or regula-

tion involves the state. The legislative enactment of the statute in que s-

tion, or the making of a law under a delegated power, usually provides

the element of state action that makes the Charter applicable.

Many statutes have been scr utinized under section 7. Examples

include statutes concerning cri me,4 ch ild protection,5 immigration,6 extra-

dition proc eedings,7 public health in surance,8 environmental protection,9

Conceits: The Coercive Author ity of Courts” (1987) 37 University of Toronto Law

Journal 18 3.

2 Retail, Wholesale an d Department Store Union, Local 580 v D olphin Delivery Ltd,

[1986] 2 SCR 573 [D olphin Delivery]. See also the discus sion in Robert J Sharpe

& Kent Roach, The Cha rter of Rights and Freedoms, 6 th ed (Toront o: Irwin L aw,

2017) at 103–5; Peter W Hogg, Constitu tional Law of Canada, 5th ed s upple-

mented (Scarborough, ON: Thomson Ca rswell, 2007) ch 37.

3 Dolphin Delivery, above note 2 at 601–2.

4 For example, R v Martineau, [1990] 2 SCR 633 (s 7 challenge to one of the

def‌initions of mur der in the Criminal Code); R v Malmo-Levine; R v Caine, 2003

SCC 74 [Malmo-Levine] (s 7 challenge to the offence of si mple possession of

marijuana).

5 For example, Winnipeg Child and Family Ser vices v KLW, 20 00 SCC 48 (s 7 challenge

to statutory prov isions def‌ining a power of wa rrantless apprehen sion of a child).

6 For example, Charkaoui v Canada (Citizenship an d Immigration), 20 07 SCC 9

[Charkaoui] (s 7 challenge to t he statutory scheme for determin ing the rea-

sonableness of m inisterial cert if‌ication that a perma nent resident or foreign

national is a t hreat to the securit y of Canada).

7 For example, United States of Ame rica v Ferras, 2006 SCC 33 (s 7 challenge to

the procedure s for committal for ext radition).

8 For example, Chao ulli v Quebec (AG), 20 05 SCC 35 [Cha oulli] (a s 7 challenge to

a statutory prohib ition on certain forms of priv ate health insurance).

9 Dixon v Ontario (Director, Ministry of the Environme nt), 2014 ONSC 7404 [Dixon].