Engaging Section 7

AuthorHamish Stewart
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.
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
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
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].

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