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Charter - s.7 General. Heegsma v. Hamilton (City)
In Heegsma v. Hamilton (City) (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against the dismissal of a JR Charter s.7 and s.15 "challenge the City of Hamilton’s by-law that prohibits installing tents and sleeping in public parks in the City and to challenge the City’s actions removing them from public parks in Hamilton during the relevant period" seeking declarations and damages.
Here the court briefly considers a Charter s.7 ['life, liberty and security of the person'] issue:[76] In order to establish a breach of s. 7, a claimant must first show that state action deprived the person of life, liberty or security of the person, and, if so, that the deprivation was not in accordance with the principles of fundamental justice: Carter v. Canada (Attorney General), 2015 SCC 5, 1 S.C.R. 331, at para. 55; Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 93. . Cycle Toronto v. Ontario (Attorney General) [extending beyond 'administration of justice']
In Cycle Toronto v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown appeal, this brought against the granting of a JR which found that requiring "the removal of bicycle lanes from three downtown Toronto streets" under HTA s.195.6 ['Existing lanes in the City of Toronto, direction to restore'] and related regulations breached Charter s.7 ['life, liberty and security of the person'].
Here the court considers the recent case of Drover v Canada (Attorney General) (Ont CA, 2025) which provides a parallel to the present case on whether Charter s.7 "applies beyond matters involving the administration of justice":1. Drover and the threshold for the application of s. 7
[27] The scope of s. 7 of the Charter – specifically, whether it applies beyond matters involving the administration of justice – has not been resolved definitively by the Supreme Court. In Drover v. Canada (Attorney General), 2025 ONCA 468, 177 O.R. (3d) 561, leave to appeal granted, [2025] S.C.C.A. No. 392, a majority of this court held that s. 7 applies beyond individuals’ interactions with the administration of justice, at least in the context of the liberty interest. In that case, the majority held that a legislative requirement that electoral returning officers reside in the ridings in which they were appointed – a requirement that clearly did not implicate the administration of justice – deprived the applicant of his liberty in a manner that was not in accordance with the principles of fundamental justice.
[28] The appellants did not ask this court to reconsider its decision in Drover but sought instead to confine its holding to the liberty right in s. 7. If s. 7 applies to deprivations of life or security of the person only in the context of the administration of justice, then the application judge’s decision is plainly erroneous, for there is no question that the impugned legislation does not involve the administration of justice. It established no offence or sanction, civil or criminal. It merely required the removal of bicycle lanes from three Toronto streets.
[29] However, it is not clear that it is possible to interpret Drover as the appellants suggest. The proper scope of s. 7 will ultimately have to be decided by the Supreme Court, and I note that since this appeal was argued, the court has granted leave to appeal in Drover.
[30] In these circumstances, I will proceed on the assumption that s. 7 may be engaged beyond the administration of justice context. As I will explain, even assuming that s. 7 may be engaged in the wider context that Drover suggested, it is not engaged in this case. The impugned legislation does not effect a deprivation of life, liberty, or security of the person. Even if it did, any such deprivation would be consistent with the principles of fundamental justice. . Cycle Toronto v. Ontario (Attorney General)
In Cycle Toronto v. Ontario (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown appeal, this brought against the granting of a JR which found that requiring "the removal of bicycle lanes from three downtown Toronto streets" under HTA s.195.6 ['Existing lanes in the City of Toronto, direction to restore'] and related regulations breached Charter s.7 ['life, liberty and security of the person'].
The court summarizes this intensively-political Charter s.7 case, here involving the issue of Toronto bicycle lanes:[1] The Ontario legislature exercised its law-making authority over highway traffic in the province to require the removal of bicycle lanes from three downtown Toronto streets. This is the sort of decision legislatures make routinely without attracting any concerns about the constitutionality of their actions.
[2] The application judge saw things differently. He concluded that the removal of the bicycle lanes constituted a serious violation of the most basic and fundamental rights in the Canadian Charter of Rights and Freedoms: it deprived bicyclists not only of security of the person but also of the right to life itself, and it did so in a manner that violated the principles of fundamental justice. He found, in particular, that the purpose of removing the bicycle lanes – reducing traffic congestion – was not supported by the government’s internal advice or expert evidence tendered in the application and would not be achieved by the legislation. The application judge went on to conclude that this was a violation of s. 7 of the Charter that could not be saved by s. 1.
[3] The application judge’s decision presents as a straightforward application of orthodox s. 7 principles. But the application of those principles, divorced from a broader understanding of the constitution of which they are a part, has led to a surprising outcome: the conclusion that routine legislation regulating road usage is unconstitutional.
[4] Something has gone wrong.
[5] The application judge erred in law in interpreting and applying s. 7. But his decision is wrong in a more profound sense, for it subverts a fundamental principle of our democratic constitutional order: a legislature cannot bind its successors. Legislatures in the Westminster tradition are free to undo legislation by amending or repealing it as they see fit. That is the nature of democratic lawmaking in our constitutional order. Of course, all laws are subject to the Charter, but this does not preclude the amendment or repeal of legislation the legislature was under no constitutional obligation to have passed in the first place. Amendment or repeal of legislation may breach the Charter only if the breach can be established independent of the prior state of the law.
[6] The Charter does not require the legislature to establish bicycle lanes. Thus, the Ontario legislature is as free to establish bicycle lanes as it is to remove them or authorize their removal. The Charter has nothing to say about whether bicycle lanes are a good or a bad idea – wise or unwise policy. These judgments are no business of the courts. The government is not constitutionally obligated to make policy decisions that accord with policy advice it receives from its advisors, nor is the legislature obligated to legislate in accordance with that advice – let alone the advice of academic experts.
[7] The bottom line is this: there is no constitutional obligation to regulate the use of roads in any particular manner – no constitutional obligation to build bicycle lanes or to retain any that have been built. The legislature is free to legislate to remove a bicycle lane from a road – indeed, it may remove a road entirely – without implicating the Charter, and in particular, without implicating anyone’s rights under s. 7 of the Charter.
[8] The appeal must be allowed. . R. v. Kloubakov
In R. v. Kloubakov (SCC, 2025) the Supreme Court of Canada dismissed a criminal appeal, this from an Alberta CA ruling that allowed a Crown appeal against an Alberta QB decision in which "the trial judge held that these offences [SS: 'receiving a material benefit from sexual services and of procuring': CCC 286.2 and 286.3] prohibited the safety measures contemplated in Bedford [SS: Canada (Attorney General) v. Bedford (SCC, 2013)] and therefore infringed s. 7 of the Charter".
Here the court considers Charter s.7 broadly:(1) Legal Framework Under Section 7
[136] Section 7 of the Charter states that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
[137] A claim that legislation breaches s. 7 of the Charter proceeds in two steps. At the first step, the claimant must establish that the impugned legislative provision deprives them of life, liberty, or security of the person. This requires showing a sufficient causal connection between the legislation and the alleged interference with or negative impact on the s. 7 interest. A risk of such a deprivation suffices to engage s. 7 (Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, at para. 56; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 62). At the second step, the claimant must show that this deprivation is not in accordance with the principles of fundamental justice. This requires establishing that an impugned provision conflicts with basic constitutional values, including the values against a law being arbitrary, overbroad, or grossly disproportionate (Bedford, at paras. 57-58, 75-76, 93-96 and 123; Carter, at para. 72; Canadian Council for Refugees, at paras. 56 and 60; J.J., at para. 116).
[138] A law is arbitrary if “there is no connection between the effect and the object of the law” (Bedford, at para. 98; see also paras. 99-100). A law will be considered arbitrary for the purposes of s. 7 if it imposes limits on life, liberty, or security of the person “that have no connection to [the law’s] purpose” (R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602, at para. 23; P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 47:24; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at para. XII-6.66).
[139] A law is overbroad when it is “so broad in scope that it includes some conduct that bears no relation to its purpose” (Bedford, at para. 112 (emphasis in original); J.J., at para. 136; Appulonappa, at para. 26; Carter, at para. 85; Canadian Council for Refugees, at paras. 126-63; Hogg and Wright, at § 47:25; Brun, Tremblay and Brouillet, at para. XII-6.65). A claimant must show that there is “no rational connection between the purposes of the law and some, but not all, of its impacts” (Bedford, at para. 112 (emphasis in original); J.J., at para. 136). As a matter of constitutional principle, a “law must not go further than reasonably necessary to achieve its legislative goals” (Safarzadeh-Markhali, at para. 50). A law is overbroad if it “overreaches in a single case” (Canadian Council for Refugees, at para. 141, citing Bedford, at paras. 113 and 123, and Ndhlovu, at para. 78). The overbreadth principle “allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others” (Bedford, at para. 113; Appulonappa, at para. 26; Carter, at para. 85).
[140] Finally, a law will be grossly disproportionate only “in extreme cases”, if the seriousness of the s. 7 deprivation is “totally out of sync with the objective of the measure”, such that the law “cannot rationally be supported” (Bedford, at para. 120; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 143; Hogg and Wright, at § 47:26; Brun, Tremblay and Brouillet, at paras. XII-6.58 and XII-6.66). An example is a “hypothetical . . . law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk” (Bedford, at para. 120). The draconian impact of such a law would “be entirely outside the norms accepted in our free and democratic society” (para. 120).
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