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Charter s.7 'Life, Liberty and Security of the Person'
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. Leroux v. Ontario
In Leroux v. Ontario (Ont CA, 2023) the Court of Appeal considered an appeal of a class action certification refusal from the Divisional Court, here regarding SSPSIPDDA applicants. The alleged causes of action were negligence and s.7 Charter.
These quotes deal with the Charter s.7 'tort' claims, which were reinstated by the Court of Appeal - at least on a class action certification basis:(3) Section 7 Charter Claim
i. Position of the Parties
[73] The appellant argues that the Divisional Court erred in finding it was plain and obvious that her s. 7 Charter claim had no reasonable chance of success. The appellant agrees that to establish a s. 7 violation there must be: state conduct, a deprivation of a s. 7 right, and the deprivation must not be in accordance with the principles of fundamental justice. But the appellant submits that the Divisional Court incorrectly interpreted the claim as asserting that the s. 7 breach consisted of Ontario not fulfilling a positive obligation to provide the class members economic and human needs. The appellant argues that the claim does not simply assert a deprivation of the class members’ s. 7 rights flowing from Ontario’s failure to provide Developmental Services or from the very existence of a waitlist. The claim also alleges a deprivation of the class members’ right to security of the person based on the manner in which Ontario has managed DSO waitlists for Developmental Services for persons it has assessed and approved to receive services. This state conduct allegedly interferes with the right to security of the person by undermining the physical and psychological integrity of class members.
[74] Ontario contends that the Divisional Court correctly struck the s. 7 claim. In its view, the Divisional Court was bound by previous s. 7 jurisprudence where claims were rejected on the basis that they sought to impose a positive obligation on the state to provide financial benefits − there is no obligation on the government to do so even in the case of benefits that accord with or enhance Charter values. The failure to provide benefits, or the existence of a waitlist for those benefits, cannot successfully ground a s. 7 claim. Ontario also argues that the appellant does not particularize how the deprivation fails to accord with a principle of fundamental justice, which is fatal to the viability of the s. 7 claim.
ii. The Law
[75] To demonstrate a violation of s. 7 of the Charter, a claimant must first demonstrate that the impugned state action interferes with or deprives them of their life, liberty, or security of the person. Once a s. 7 right has been engaged, they must show that the deprivation is not in accordance with the principles of fundamental justice: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 55. The pleadings must allege both constituent elements to disclose a viable s. 7 claim: Bowman v. Ontario, 2022 ONCA 477, 162 O.R. (3d) 561, at para. 97.
[76] In Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 81, the majority highlighted that s. 7 is focussed on a right “not to be deprived” and that nothing in the jurisprudence up to that time imposed a positive obligation on the state to ensure that each person enjoys life, liberty, or security of the person. However, the majority expressly left open the possibility that a positive obligation under s. 7 to sustain life, liberty or security of the person may be made out in special circumstances: at para. 83.
[77] In light of Gosselin, this court has consistently held that, to make out a deprivation of a s. 7 right, claimants cannot point to the government’s failure to provide a financial benefit, even if such a benefit may be necessary to sustain life, liberty, or security of the person: see Wynberg, at paras. 218-220; Flora v. Ontario (Health Insurance Plan, General Manager), 2008 ONCA 538, 91 O.R. (3d) 412, at para. 108. This court has upheld the striking of a s. 7 claim at the pleadings stage when the claim alleged that the deprivation stemmed from the state’s failure to provide access to publicly-funded autism therapy services for children since “[g]overnment action in not providing specific programs … cannot be said to deprive [the claimants] of constitutionally protected rights”: see Sagharian v. Ontario (Education), 2008 ONCA 411, 172 C.R.R. (2d) 105, at paras. 52-53, leave to appeal refused, [2008] S.C.C.A. No. 350 (emphasis in original).
[78] However, this court has also held that claimants may be able to make out a s. 7 deprivation that stems from delay in receiving essential financial benefits for which they are statutorily entitled: see Wareham, at paras. 16-17. As Doherty J.A. wrote, at para. 17, “[t]here is a potential argument to be made that [such] delay … could engage the right to security of the person where that delay has caused serious physical or psychological harm”.
iii. Discussion
[79] I agree with the appellant that the Divisional Court erred in finding the s. 7 claim was doomed to fail because it is completely foreclosed by existing jurisprudence.
[80] The Divisional Court interpreted the claim as imposing a positive constitutional obligation on Ontario to provide Developmental Services to the class members.
[81] But when one reads the pleading generously, the appellant’s s. 7 claim includes an allegation of deprivation of the security of the person that stems from the manner in which Ontario administers DSO waitlists for Developmental Services for persons it has already assessed and approved. In other words, it does not simply allege that the failure to receive Developmental Services or the existence of the waitlist deprives class members of a s. 7 right. It alleges that the conduct of Ontario in assessing, approving, and then placing class members into an incoherent and irrational waitlist process visits harm to their security of the person. Read in this light, the complaint is not simply about state inaction or delay – i.e., the failure to alleviate the class members’ vulnerabilities that already exist due to their developmental disabilities. The complaint is about harm to their security of the person, including their psychological integrity, that is alleged to occur from state action.
[82] As such, the claim can be distinguished from the claims in Wynberg, Flora, and Sagharian. In those cases, the claimants identified their s. 7 deprivation as originating from legislative limitations on the scope of a benefit or the mere existence of a waitlist, and thus their claims could be characterized as seeking to impose a positive obligation on the state.
[83] Here, the appellant points to state action (the ad hoc, unreasonable administration of a waitlist of individuals with approval for essential services) that she alleges causes a form of psychological harm sufficiently profound to deprive class members of the right to security of the person. The claim lists “mental anguish” and the “development of new mental, psychological or psychiatric disorders” as some of the harms stemming from the impugned state conduct. The appellant argues that this psychological harm surpasses the “ordinary stress and anxiety” that the Supreme Court has held to be insufficient to constitute a deprivation of the security of the person: New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, at para. 60.
[84] As the motion judge noted, it is true that the pleading also asserts that state inaction and delay in providing Developmental Services itself constitutes a deprivation of the security of the person because the benefits are essential to the class members. To the extent the pleading does so, it sails close to asserting a positive constitutional obligation in favour of these class members. But given that the claim read generously goes beyond this, the question is whether it should be allowed to proceed or considered doomed to fail.
[85] Although I share the motion judge’s scepticism about the ultimate success of the s. 7 claim, I agree with the result he reached that the claim should be allowed to proceed. It is not plain and obvious that, if proven, the psychological harm allegedly caused by Ontario’s management of DSO waitlists for Developmental Services to the vulnerable class members could not amount to a deprivation of the security of the person.
[86] And even to the extent the claim goes beyond that, it is important to recognize that claims should be struck with care: Imperial Tobacco, at para. 21. Novel claims that may incrementally develop the law should be allowed to proceed: Babstock, at para. 19. This may be particularly true for novel Charter claims that explore the scope of a right, as such claims often require a trial and an evidentiary record to fully understand the nature of the impugned state action and the harms experienced by claimants: Lorne Sossin and Gerard J. Kennedy, “Justiciability, Access to Justice and the Development of Constitutional Law in Canada”, (2017) 45:4 Fed. L. Rev. 707, at p. 719.
[87] It is worth repeating that in Gosselin, the majority of the Supreme Court left open the possibility of a positive obligation under s. 7 to sustain life, liberty, or security of the person being made out in special circumstances. While this court has held that this possibility alone is normally an insufficient basis for allowing novel positive obligation claims under s. 7 to proceed to trial, this claim is arguably distinct because the class members have already been assessed and approved for Developmental Services pursuant to the 2008 Disabilities Act. This feature arguably shares some similarities to the features of the s. 7 claim in Wareham that was permitted to proceed. As such, the positive obligation dimension of this claim may likewise warrant further consideration at trial.
[88] Finally, I reject Ontario’s argument that the pleadings do not sufficiently identify a principle of fundamental justice with which the appellant’s alleged deprivation fails to accord. The appellant alleges arbitrariness, with her pleadings asserting that Ontario has created an “arbitrary” system for administrating the waitlist for Developmental Services. Taken at its highest, the appellant’s s. 7 claim argues that the deprivation of the security of the person experienced by class members has no rational connection to the purpose of the state action.
[89] Accordingly, I am satisfied that the appellant’s pleadings allege the constituent elements to make out a viable s. 7 Charter claim and should be allowed to proceed to trial. . Canada (Attorney General) v. Nasogaluak
In Canada (Attorney General) v. Nasogaluak (Fed CA, 2023) the Federal Court of Appeal briefly stated the requirements of a s.7 Charter violation:[69] To establish that a law or other government action violates section 7 of the Charter, a claimant must show that the law or action interferes with, or deprives him or her of, life, liberty or security of the person and that the deprivation is not in accordance with the principles of fundamental justice: Ewert v. Canada, 2018 SCC 30 at para. 68. . R. v. Nelson
In R. v. Nelson (Ont CA, 2023) the Court of Appeal considers the Charter s.7 treatment of lost criminal evidence:4) Lost Evidence Application
[27] The police have a duty to preserve relevant material in their possession, and the failure to do so can result in a s. 7 Charter breach. That said, as the Supreme Court has recognized, “owing to the frailties of human nature, evidence will occasionally be lost”: R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at para. 20. A s. 7 breach will only be established where evidence was lost due to unacceptable negligence, or in “extraordinary circumstances” where the lost evidence is “so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial”: La, at para. 24; R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153; R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.).
[28] The critical question was whether the police took reasonable steps to preserve the evidence for disclosure. The trial judge considered all of the surrounding circumstances, and in the end reasonably found that the footage was not intentionally lost nor lost because of “unacceptable negligence”. In any event, a judicial stay of proceeding is to be granted only in the clearest of cases. It is a remedy of last resort. Here, the lost evidence did not impact the appellants’ right to a fair trial. We therefore reject this ground of appeal. . Shaulov v. Law Society of Ontario
In Shaulov v. Law Society of Ontario (Ont CA, 2023) the Court of Appeal drew part of the line between criminal and non-criminal s.7 Charter rights:(2) Dismissal of the appellant’s s. 7 Charter claims against the LSO
[12] The motion judge correctly determined that the appellant’s claims against the LSO under s. 7 of the Charter were doomed to failure because the appellant’s pursuit of a profession through the completion of the LSO’s licensing requirements is not a protected interest under s. 7 of the Charter: Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 CanLII 48653 (ON CA), 74 O.R. (3d) 1 (C.A.), at paras. 39-43; R. v. Schmidt, 2014 ONCA 188, 119 O.R. (3d) 145, at para. 38, leave to appeal refused, [2014] S.C.C.A. No. 208; and Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482, 156 O.R. (3d) 675, at paras. 35-45, leave to appeal refused, [2021] S.C.C.A. No. 350. Nor do these licensing requirements qualify as state interference with an individual interest of fundamental importance that results in a serious psychological incursion: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 82. The motion judge correctly concluded that the appellant had failed to allege any recognized deprivation of right to liberty and/or security of the person. . United States v. Creighton
In United States v. Creighton (Ont CA, 2023) the Court of Appeal considered when surrender of a person under extradition would offend Charter s.7 and the Extradition Act:[2] The Minister’s decision to surrender for extradition is entitled to substantial deference: Lake v. Canada, 2008 SCC 23, at para. 41. The Minister must apply the correct legal principles and engage in the proper legal analysis. The Minister must also reach a “defensible” conclusion on the application of the relevant principles to the facts as found by the Minister: United States of America v. Leonard, 2012 ONCA 622, at para. 48, leave to appeal refused, [2012] S.C.C.A. No. 490.
[3] If the applicant cannot demonstrate a material legal error, this court will interfere with the Minister’s decision only if that decision is outside a range of reasonable outcomes.
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[9] Surrender of a person for extradition in circumstances that would “shock the conscience of the community” contravenes that person’s rights under s. 7 of the Charter: United States v. Burns, 2001 SCC 7, at para. 60; Canada v. Fischbacher, 2009 SCC 46. The Minister must also refuse to surrender a person if, in all the circumstances, the surrender would be “unjust or oppressive”: Extradition Act, s. 44(1)(a). The constitutional standard and the statutory provision overlap: Lake, at para. 24, Fischbacher, at para. 39. . 3510395 Canada Inc. v. Canada (Attorney General)
In 3510395 Canada Inc. v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal considered an appeal of CRTC orders under Canada's Anti-Spam Legislation dealing with email spam. One of the issues involved some basics of a Charter s.7 analysis:E. Does CASL Violate Section 7 of the Charter?
[226] The appellant briefly refers to CASL’s violation of both section 7 and section 8 of the Charter (Appellant’s Constitutional Memorandum at paras. 84(a), 87).
[227] The appellant’s section 7 argument must fail because, as the preceding sections of these reasons make clear, the appellant does not face penal proceedings. The appellant, as a corporation, therefore has no standing to bring a claim under section 7 of the Charter.
[228] It is well established that "“everyone”", as that term appears in section 7, "“exclude[s] corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include[s] only human beings.”" (Irwin Toy at 1004; see also Dywidag Systems International Canada Ltd. v. Zutphen Brothers Construction Ltd., 1990 CanLII 140 (SCC), [1990] 1 S.C.R. 705, 68 D.L.R. (4th) 147 at 709 [Dywidag Systems]). A corporation cannot, as a general principle, avail itself of the protections provided by section 7.
[229] The exception to this rule is that a corporation charged with a penal provision may challenge that provision on the basis that it violates a human being’s section 7 rights. This exception was first articulated in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 and has been reaffirmed by the Supreme Court on several occasions (see, for example, Irwin Toy at 1004; Dywidag Systems at 709; R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154, 84 D.L.R. (4th) 161 at 179 [Wholesale Travel]). In light of my finding that the appellant corporation is not defending against a criminal charge, "“[t]here are no penal proceedings pending in the case at hand, so ""the principle articulated in ""Big M Drug Mart"" is not involved.”" (Irwin Toy at 1004). The appellant thus remains constrained by the general principle that corporations may not avail themselves of the protections offered by section 7 of the Charter. The appellant’s section 7 claim must therefore fail. . Blencoe v. British Columbia (Human Rights Commission)
In Blencoe v. British Columbia (Human Rights Commission) (SCC, 2000) the Supreme Court of Canada considers the non-criminal role of charter s.7 "life, liberty and security of the person" rights:(b) Applicability of Section 7 Outside the Criminal Context
45 Although there have been some decisions of this Court which may have supported the position that s. 7 of the Charter is restricted to the sphere of criminal law, there is no longer any doubt that s. 7 of the Charter is not confined to the penal context. This was most recently affirmed by this Court in New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46, where Lamer C.J. stated that the protection of security of the person extends beyond the criminal law (at para. 58). He later added (at para. 65):... s. 7 is not limited solely to purely criminal or penal matters. There are other ways in which the government, in the course of the administration of justice, can deprive a person of their s. 7 rights to liberty and security of the person, i.e., civil committal to a mental institution: see B. (R.), supra, at para. 22. 46 Thus, to the extent that the above decisions of Nisbett and Canadian Airlines stand for the proposition that s. 7 can never apply outside the criminal realm, they are incorrect. Section 7 can extend beyond the sphere of criminal law, at least where there is “state action which directly engages the justice system and its administration” (G. (J.), at para. 66). If a case arises in the human rights context which, on its facts, meets the usual s. 7 threshold requirements, there is no specific bar against such a claim and s. 7 may be engaged. The question to be addressed, however, is not whether delays in human rights proceedings can engage s. 7 of the Charter but rather, whether the respondent’s s. 7 rights were actually engaged by delays in the circumstances of this case. Various parties in this case seem to have conflated the delay issue with the threshold s. 7 issue. However, whether the respondent’s s. 7 rights to life, liberty and security of the person are engaged is a separate issue from whether the delay itself was unreasonable. I will now examine whether the s. 7 threshold requirements have been met and whether the respondent has demonstrated a breach of his s. 7 rights.
(c) Section 7 – General Principles
47 Section 7 of the Charter provides 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.” Thus, before it is even possible to address the issue of whether the respondent’s s. 7 rights were infringed in a manner not in accordance with the principles of fundamental justice, one must first establish that the interest in respect of which the respondent asserted his claim falls within the ambit of s. 7. These two steps in the s. 7 analysis have been set out by La Forest J. in R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at p. 401, as follows:To trigger its operation there must first be a finding that there has been a deprivation of the right to “life, liberty and security of the person” and, secondly, that the deprivation is contrary to the principles of fundamental justice. Thus, if no interest in the respondent’s life, liberty or security of the person is implicated, the s. 7 analysis stops there. It is at the first stage in the s. 7 analysis that I have the greatest problem with the respondent’s s. 7 arguments.
48 McEachern C.J.B.C. collapsed the s. 7 interests of “liberty” and “security of the person” into a single right protecting a person’s dignity against the stigma of undue, prolonged humiliation and public degradation of the kind suffered by the respondent. In Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177, at pp. 204-5, Wilson J. emphasized that “life, liberty and security of the person” are three distinct interests, and that it is incumbent on the Court to give meaning to each of these elements. This statement was endorsed by Lamer J. for a majority of this Court in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 500. In addressing the issue of whether the respondent’s s. 7 rights have been breached in this case, I also prefer to keep the interests protected by s. 7 analytically distinct to the extent possible. For the purposes of this appeal, the outcome is dependent upon the meaning to be given to the interests of “liberty” and “security of the person”.
(d) Liberty Interest
49 The liberty interest protected by s. 7 of the Charter is no longer restricted to mere freedom from physical restraint. Members of this Court have found that “liberty” is engaged where state compulsions or prohibitions affect important and fundamental life choices. This applies for example where persons are compelled to appear at a particular time and place for fingerprinting (Beare, supra); to produce documents or testify (Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425); and not to loiter in particular areas (R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761). In our free and democratic society, individuals are entitled to make decisions of fundamental importance free from state interference. In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315, at para. 80, La Forest J., with whom L’Heureux‑Dubé, Gonthier and McLachlin JJ. agreed, emphasized that the liberty interest protected by s. 7 must be interpreted broadly and in accordance with the principles and values underlying the Charter as a whole and that it protects an individual’s personal autonomy:... liberty does not mean mere freedom from physical restraint. In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance. 50 In R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, Wilson J., speaking for herself alone, was of the opinion that s. 251 of the Criminal Code violated not only a woman’s right to security of the person but her s. 7 liberty interest as well. She indicated that the liberty interest is rooted in fundamental notions of human dignity, personal autonomy, privacy and choice in decisions regarding an individual’s fundamental being. She conveyed this as follows, at p. 166:Thus, an aspect of the respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state. This right is a critical component of the right to liberty. Liberty, as was noted in Singh, is a phrase capable of a broad range of meaning. In my view, this right, properly construed, grants the individual a degree of autonomy in making decisions of fundamental personal importance. The above passage was endorsed by La Forest J. in B. (R.), supra, at para. 80. This Court in B. (R.) was asked to decide whether the s. 7 liberty interest protects the rights of parents to choose medical treatment for their children. The above passage from Wilson J. was applied by La Forest J. to individual interests of fundamental importance in our society such as the parental interest in caring for one’s children.
51 In Godbout v. Longueuil (City), 1997 CanLII 335 (SCC), [1997] 3 S.C.R. 844, at para. 66, La Forest J., writing for L’Heureux‑Dubé J. and McLachlin J. (as she then was), reiterated his position that the right to liberty in s. 7 protects the individual’s right to make inherently private choices and that choosing where to establish one’s home is one such inherently personal choice:The foregoing discussion serves simply to reiterate my general view that the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference. I must emphasize here that, as the tenor of my comments in B. (R.) should indicate, I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs. Indeed, such a view would run contrary to the basic idea, expressed both at the outset of these reasons and in my reasons in B. (R.), that individuals cannot, in any organized society, be guaranteed an unbridled freedom to do whatever they please. Moreover, I do not even consider that the sphere of autonomy includes within its scope every matter that might, however vaguely, be described as “private”. Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. As I have already explained, I took the view in B. (R.) that parental decisions respecting the medical care provided to their children fall within this narrow class of inherently personal matters. In my view, choosing where to establish one’s home is, likewise, a quintessentially private decision going to the very heart of personal or individual autonomy. [Emphasis added.] La Forest J. therefore spoke in Godbout of a narrow sphere of inherently personal decision-making deserving of the law’s protection. Choosing where to establish one’s home fell within that narrow class according to three members of this Court.
52 Dissenting at the New Brunswick Court of Appeal in G. (J.), I also favoured a more generous approach to the liberty interest that would protect personal rights that are inherent to the individual and consistent with the essential values of our society (New Brunswick (Minister of Health and Community Services) v. J.G. (1997), 1997 CanLII 14563 (NB CA), 187 N.B.R. (2d) 81, at para. 49). In this vein, the parental interest in raising and caring for one’s children would be protected. I however agreed with La Forest J.’s caution that the liberty interest would encompass only those decisions that are of fundamental importance.
53 Professor Hogg, supra, at p. 44-9, supports a more cautious approach to the interpretation of s. 7 such that s. 7 does not become a residual right which envelopes all of the legal rights in the Charter. Professor Hogg also addresses the deliberate omission of “property” from “life, liberty and security of the person” in s. 7, and states, at p. 44-12:It also requires . . . that those terms [liberty and security of the person] be interpreted as excluding economic liberty and economic security; otherwise, property, having been shut out of the front door, would enter by the back. 54 Although an individual has the right to make fundamental personal choices free from state interference, such personal autonomy is not synonymous with unconstrained freedom. In the circumstances of this case, the state has not prevented the respondent from making any “fundamental personal choices”. The interests sought to be protected in this case do not in my opinion fall within the “liberty” interest protected by s. 7.
(e) Security of the Person
55 In the criminal context, this Court has held that state interference with bodily integrity and serious state-imposed psychological stress constitute a breach of an individual’s security of the person. In this context, security of the person has been held to protect both the physical and psychological integrity of the individual (Morgentaler, supra, at p. 56, per Dickson C.J., and at p. 173, per Wilson J.; Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at p. 587, per Sopinka J.; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, at p. 1177, per Lamer J.). These decisions relate to situations where the state has taken steps to interfere, through criminal legislation, with personal autonomy and a person’s ability to control his or her own physical or psychological integrity such as prohibiting assisted suicide and regulating abortion.
56 The principle that the right to security of the person encompasses serious state-imposed psychological stress has recently been reiterated by this Court in G. (J.), supra. At issue in G. (J.) was whether relieving a parent of the custody of his or her children restricts a parent’s right to security of the person. Lamer C.J. held that the parental interest in raising one’s children is one of fundamental personal importance. State removal of a child from parental custody thus constitutes direct state interference with the psychological integrity of the parent, amounting to a “gross intrusion” into the private and intimate sphere of the parent-child relationship (at para. 61). Lamer C.J. concluded that s. 7 guarantees every parent the right to a fair hearing where the state seeks to obtain custody of their children (at para. 55). However, the former Chief Justice also set boundaries in G. (J.) for cases where one’s psychological integrity is infringed upon. He referred to the attempt to delineate such boundaries as “an inexact science” (para. 59).
57 Not all state interference with an individual’s psychological integrity will engage s. 7. Where the psychological integrity of a person is at issue, security of the person is restricted to “serious state-imposed psychological stress” (Dickson C.J. in Morgentaler, supra, at p. 56). I think Lamer C.J. was correct in his assertion that Dickson C.J. was seeking to convey something qualitative about the type of state interference that would rise to the level of infringing s. 7 (G. (J.), at para. 59). The words “serious state-imposed psychological stress” delineate two requirements that must be met in order for security of the person to be triggered. First, the psychological harm must be state imposed, meaning that the harm must result from the actions of the state. Second, the psychological prejudice must be serious. Not all forms of psychological prejudice caused by government will lead to automatic s. 7 violations. These two requirements will be examined in turn.
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(f) Conclusion on Liberty and Security of the Person
97 To summarize, the stress, stigma and anxiety suffered by the respondent did not deprive him of his right to liberty or security of the person. The framers of the Charter chose to employ the words, “life, liberty and security of the person”, thus limiting s. 7 rights to these three interests. While notions of dignity and reputation underlie many Charter rights, they are not stand-alone rights that trigger s. 7 in and of themselves. Freedom from the type of anxiety, stress and stigma suffered by the respondent in this case should not be elevated to the stature of a constitutionally protected s. 7 right.
98 My conclusion that the [HRC] respondent is unable to cross the first threshold of the s. 7 Charter analysis in the circumstances of this case should NOT be construed as a holding that state-caused delays in human rights proceedings can never trigger an individual’s s. 7 rights. It may well be that s. 7 rights can be engaged by a human rights process in a particular case. I leave open the possibility that in other circumstances, delays in the human rights process may violate s. 7 of the Charter.
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