Engaging Section 7

• Author: Hamish Stewart
• Profession: Faculty of Law, University of Toronto
• Pages: 21-96

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CHAPTER 2

ENGAGING SECTION 7

A. INTRODUCTION

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

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

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

several types, 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 corpora-

tions, are available to all natural persons who are subject to Canadian

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

to life, liberty, and security of the person and a second, distinct right

to be treated in accordance with the principles of fundamental justice;

instead, it interpreted section 7 as guaranteeing the right not to be

deprived of life, liberty, and security of the person except in accord-

ance with the principles of fu ndamental justice. Thus, to demonstrate a

violation of her section 7 rights, a Charter applicant must demonstrate

the following elements:

(1) there is some state conduct to which the Charter applies;

(2) the applicant is a natural person or has standing to invoke a nat-

ural person’s section 7 rights;

(3) the state conduct affects the applicant’s (or natural person’s) life,

liberty, or security of t he person; and

FUNDAMENTAL JUSTICE

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

damental justice.

The f‌irst three elements engage section 7; that is, if the applicant can

demonstrate them, then section 7 applies to t he matters in di spute. The

f‌irst element arises in all Charter litigation, while the second and third

are particular to section 7. This chapter discusses these t hree elements.

The fourth element — whether the state conduct conforms to the prin-

ciples of fundamental justice — is considered in Chapters 3 through 5.

If all four elements are established, t hen the applicant’s section 7 rights

are violated.

B. STATE CONDUCT

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

tion 32:

32(1) This Charter applie s

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

ters within the authority of Parliament includ ing all matters relating

to the Yukon Territory and the Northwe st Territories; and

(b) to the legislature and government of each province in respect of

all matters w ithin the authority of the legislature of each province.

Given this wording, the potential range of the Charter’s application

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

timately, “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

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

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

Private Person s?” (1985) 63 Can Bar Rev 148; David Beatty, “Constit utional

Conceits: The Coercive Author ity of Courts” (1987) 37 UTLJ 183.

2 Retail, Wholesale a nd Department Store Union, Loca l 580 v Dolphin Delivery Ltd,

[1986] 2 SCR 573 [Dolphin Delivery]. See also t he discussion in Robert J Sh arpe

& Kent Roach, The Cha rter of Rights and Freedoms , 4th ed (Toronto: Irwin L aw,

2009) at 98–100; Peter W Hogg, Const itutional Law of Canad a, 5th ed supple-

mented (Scarborough, ON: Thomson C arswell, 2007) ch 37.

Engaging Sect ion 723

application of the Charter to various types of laws and disputes, with

particular attention to cases where section 7 was invoked.

1) Statutes and Regulations

It is clear that 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 individual or between

two private individuals.3 Therefore, any statute or regulation that de-

prives a person of one of the three interest s protected by section 7 (life,

liberty, or security of the person) must comply with the principles of

fundamental justice, whether or not the legal relationship governed by

the statute or regulation involves the state. The legislative en actment of

the statute in question, or the mak ing of a law under a delegated power,

usually provides the element of state action that makes the Charter

applicable.

Many statutes have been scrutinized under section 7. Examples

include statutes concerning crime,4 child protection,5 immigration,6

extradition proceedings,7 public health insurance,8 and adoption

records.9 Similarly, there are many examples of regulations, municipal

bylaws, and other forms of delegated legislation being challenged under

the Charter. The subordinate legislation challenged includes regulations

3 Dolphin Delivery, ibid at 6 01–2.

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

def‌initions of mur der in the Criminal Code); R v Malmo-Levine, 2003 SCC 74

[Malmo-Levine] (s 7 challenge to t he offence of simple possession of ma rijuana).

5 For example, Winnipeg Child and Family Ser vices v KLW, 2000 SCC 48 (s 7 chal-

lenge to statutory prov isions def‌ining a power of wa rrantless apprehens ion of a

child).

6 For example, Charkaoui v Canad a (Citizenship and Immigratio n), 2007 SCC 9

[Charkaoui] (s 7 challenge to t he statutory scheme for determi ning 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 v Fer ras, 2006 SCC 33 (s 7 challenge to the proce-

dures for commit tal for extradit ion).

8 For example, Chaoulli v Quebec (AG), 2005 SCC 35 [Chaoulli] (a s 7 challenge to

a statutory prohi bition on certain forms of priv ate health insurance).

9 For example, Cheskes v Ontario (AG), [2007] OJ No 3515, 2007 CanLII 38387

(SCJ) [Cheskes] (a s 7 challenge to a statute a llowing access to cert ain informa-

tion concerni ng adoptions without the consent of t he person being identif‌ied).