Engaging Section 7
| Author | Hamish Stewart |
| Profession | Faculty of Law, University of Toronto |
| Pages | 21-96 |
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CHA PTER 2
ENGAGING SECTION 7
A. INT RODUC TION
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 t hat
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 nat ural persons who are subject to Canadi an
law. Third, the Court rejected the view that section 7 created one right
to life, liberty, and security of the per son and a second, distinct right
to be treated in accordance wit h 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 per son except in accord-
ance with the principles of fu ndamental justice. Thus, to demonstrate a
violation of her section 7 rights, a Charte r applicant must demonstrate
the followi ng elements:
(1) there is some state conduct to wh ich the Charter applies;
(2) the applicant is a nat ural person or has st anding to invoke a nat-
ural person’s section 7 rig hts;
(3) the state conduct affects t he 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 pr inciples of fun-
damenta l justice.
The first three elements engage section 7; that is, if the applicant ca n
demonstrate them, then section 7 applies to t he matters in di spute. The
first element arises i n all Charter litigation, while the second and third
are particula r 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 viol ated.
B. STATE CONDUC T
The application of the Charter is, in the fir st 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 withi n the authority of Parliament includ ing all matters relating
to the Yukon Territory and the Northwe st Territories; and
(b) to the legislature and govern ment of each province in respe ct of
all matters w ithin the aut hority of the legislatu re of each province.
Given this wording, the potential ra nge of the Charter’s applic ation
is very broad. Since every matter t hat can be regulated by law i s, ul-
timately, “within the authority of ” either the federal Parliament or the
provincial legislatures, it might be argued that the Char ter 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 7 23
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
It is clear that all statutes and regulations have to comply with the
Charter, and this is so whether the statute or regul ation comes into
play in a dispute between the state and a pr ivate individual or between
two private indiv iduals.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 pri nciples 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 scr utinized under section 7. Examples
include statutes concerning cri me,4 child protection,5 immigration,6
extradition procee dings,7 public hea lth insur ance,8 and adopt ion
records.9 Similarly, there are many examples of regulations, municipal
bylaws, and other forms of delegated legislation being ch allenged under
the Charter. The subordinate legislation chal lenged 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
[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
chi ld).
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).
dures for commit tal for extradit ion).
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).
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