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Charter - s.7 Legal Rights (6). Power Workers’ Union v. Canada (Attorney General)
In Power Workers’ Union v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here relating to "the validity of pre-placement and random alcohol and drug testing which were imposed by the Canadian Nuclear Safety Commission (the Commission) as a license condition to persons licensed to operate high security—or Class I—nuclear facilities".
Here the court considers the Charter s.7 ['life, liberty and security of the person'] challenge to this drug testing:[31] The Application Judge then examined the appellants’ section 7 claim. Although he felt that the claim was better captured by section 8, he proceeded to examine it on the merits and concluded that the appellants had failed to meet either prong of section 7’s security of the person test. That test, he said, requires demonstration that the impugned state action: (i) interferes with bodily integrity and autonomy, including deprivation of control over one’s body; or (ii) causes serious state-imposed psychological stress (Decision at paras. 163−64).
[32] The Application Judge found that the threshold for demonstrating a section 7 breach on the basis of employment "“is significant and requires more than the non-invasive taking of saliva, urine or breath samples to check for evidence of drugs or alcohol as a measure to protect the broader public.”" He stated that section 7 does not protect property or predominantly economic interests, adding that the "“adverse effect of not working one’s preferred position at a nuclear plant”" is not protected by section 7 (Decision at paras. 164−66).
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(2) Section 7
[149] The appellants contend that the Application Judge erred in "“two fundamental ways”" in concluding that section 7 was not engaged by the Impugned requirements, first by focussing his analysis on the safety-critical workers’ economic interests, which had not been advanced, and then by finding that the taking of bodily samples does not constitute interference with bodily integrity.
[150] They further contend that the Impugned provisions are not in accordance with the principles of fundamental justice because:a) being suspicious-less, they are arbitrary and overbroad as they capture workers not suspected of being impaired; and
b) given all the measures already in place to monitor impairment in nuclear facilities, they are grossly disproportionate. [151] I disagree. The Application Judge did consider the appellants’ contention that the Impugned requirements engaged section 7 by compromising the safety-critical workers’ bodily integrity and, thereby, their security of the person. First, he held that the two cases the appellants relied on to advance that claim, Jackson v. Joyceville Penitentiary (T.D.), 1990 CanLII 13005 (FC), [1990] 3 F.C. 55 (Jackson) and Cruikshanks v. Stephen (1992), 1992 CanLII 1929 (BC CA), 16 B.C.A.C. 59 (B.C. C.A.) (Cruikshanks), were either distinguishable (Jackson) or simply had no precedential value because no section 7 analysis had been conducted (Cruikshanks) (Decision at paras. 158–62). Besides, Cruikshanks was not raised in this Court.
[152] With respect to Jackson, the Application Judge noted that the primary concerns in that case were that inmates refusing to be subjected to a demand for a urine sample could be punished at the whim of prison staff, or that the tests obtained following a demand could conceivably be used as a tool to coerce inmates to do certain acts or as a form of punishment outside the applicable statutory disciplinary regime. It is in that particular context, he said, that the inmates’ security of the person and liberty interest were held to be engaged.
[153] I agree. The safety-critical workers’ situation in the present matter is wholly different. While state action that has an impact on an individual’s psychological integrity may engage section 7’s security of the person, in order to do so, however, that impact must be "“serious and profound”" and be measured "“objectively”", that is from the perspective of the "“person of reasonable sensibility”" (Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62 (CanLII), [2014] 3 S.C.R. 176 at para. 125, quoting from New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 at para. 60. See also Canadian Council for Refugees at para. 90).
[154] From the point of view of the person of reasonable sensitivity, I do not believe that the relatively non-invasive nature of the seizure permitted by the Impugned requirements, coupled with the absence of any adverse disciplinary consequences resulting from a positive test, rise to the level of serious and profound state-imposed psychological stress that engages section 7’s security of the person protection.
[155] In Deacon, for instance, it was conceded by the government that imposing the taking of medication as a condition of release of long-term offenders amounted to a deprivation of bodily integrity, resulting in a violation of the offender’s "“liberty”" and "“security of the person”" within the meaning of section 7 of the Charter (Deacon at para. 49). On its face, this, in my view, entails, for a person of reasonable sensitivity, a different kind of state-imposed psychological stress than the relatively non-intrusive taking of breath, urine or saliva samples.
[156] While the Application Judge also discussed the appellants’ section 7 claim from an employment perspective, presumably for the sake of completeness, I am satisfied that he addressed the appellants’ security of the person’s main contention and that he committed no reversible errors in concluding that section 7 is not engaged in this case.
[157] Having found no deprivation of the safety-critical workers’ security of the person, the Application Judge ended the section 7 analysis. He was correct (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (CanLII), [2000] 2 S.C.R. 307 at para. 47). Therefore, I see no reason to embark, as the appellants invites the Court to do, in a stage 2 analysis of section 7, which focusses on whether the alleged deprivation of life, liberty or security of the person has occurred in accordance with the principles of fundamental justice. This is so especially where, as here, an appeal court does not have the benefit of the lower court’s views on the issue.
[158] It is also unnecessary in my view to engage in the issue of whether the appellants’ section 7 concerns ought to only have been considered under section 8 on the basis that these concerns are necessarily encompassed in the section 8 analysis and are, therefore, redundant. This is better left for another day. . Mitanidis v. Ontario (Transportation)
In Mitanidis v. Ontario (Transportation) (Div Court, 2024) the Divisional Court resolves a Charter s.7 ['life, liberty and security of the person'] argument, here regarding a driver's license suspension:[18] .... In Horsefield v. Reg. of Motor Vehicles, 1999 CanLII 2023 (ON CA), 44 O.R.(3d) 73, the Ontario Court of Appeal confirmed that s. 7 of the Charter does not include the right to drive a motor vehicle. A driver’s licence is not a “liberty” or “security of the person” interest guaranteed by the Charter and the suspension of a drivers licence does not engage the principles of fundamental justice. . Mathur v. Ontario
In Mathur v. Ontario (Ont CA, 2024) the Ontario Court of Appeal allowed a novel applicant's appeal, here as to whether "the alleged failure of Ontario to comply with its voluntarily imposed statutory obligations to combat climate change amount to a breach of the appellants’ ss. 7 and 15 rights under the Canadian Charter of Rights and Freedoms".
In this context, the court considers the applicants' Charter s.7 ['right to life, liberty and security of the person']:(d) Section 7 of the Charter
[42] Section 7 of the Charter provides that everyone 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. The Supreme Court formulated the analysis under s. 7 as a two-step test: first, claimants must show that the law interferes with, or deprives them of, their life, liberty or security of the person; and second, they must show that the deprivation in question 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.
[43] The right to life is engaged where the impugned law or state action imposes death or an increased risk of death on a person, either directly or indirectly: Carter, at para. 62. The right to security of the person is engaged when the impugned law or state action negatively impacts or limits the claimant’s security of the person: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 58-60.
[44] The application judge found, correctly in our view, that based on the evidence before her, “it is indisputable that, as a result of climate change, the [appellants] and Ontarians in general are experiencing an increased risk of death and an increased risk to the security of the person”. She framed the “relevant question” before her as follows: “whether subsection 3(1) of the CTCA and the Target impose an increased risk of death, directly or indirectly, and/or whether they negatively impact or limit the [appellants’] security of the person.”
[45] She rejected the appellants’ argument that the Target authorizes or creates the very level of greenhouse gases that will lead to the catastrophic effects of climate change for Ontarians because she found that the Target was aiming for the reduction of greenhouse gas emissions in Ontario and that the appellants’ “real complaint” is that “Ontario did not aim sufficiently high when setting the Target.” At the same time, she rejected Ontario’s argument that the Target was meaningless and found that “[t]he setting of the Target was a state action taken pursuant to a statute” and “meant to guide and direct subsequent state actions with respect to the reduction of [greenhouse gases] in Ontario.”
[46] The application judge concluded that “[b]ecause of the nature of both the Target and the [appellants’] complaint, the question of whether the Target imposes an increased risk of death and/or negatively impacts or limits the [appellants’] security of the person raises the issue of whether section 7 imposes positive obligations on the state.” As a result, she concluded that “[the application] is seeking to place a freestanding positive obligation on the state to ensure that each person enjoys life and security of the person, in the absence of a prior state interference with the [appellants’] right to life or security of the person”.
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[49] The application judge erred in treating this as a positive rights case. Although she concluded the appellants’ rights to life and security of the person were engaged after assuming, without deciding, that positive obligations can be imposed under s. 7 in the special context of climate change, her incorrect framing of the application as a positive rights case coloured her analysis.
[50] This incorrect framing also affected the application judge’s consideration of whether the deprivations she found were in accordance with the principles of fundamental justice. The application judge correctly noted that a law is arbitrary where “there is no connection between the effect of a provision and its purpose”: Sharma, at para. 111; or “where there is no rational connection between the object of the law and the limit it imposes on life, liberty or security of the person”: Carter, at para. 83. She defined the objective of the Target as: “To reduce [greenhouse gases] in Ontario to address and fight climate change.”
[51] The application judge was unable to find that the Target was arbitrary because she erroneously considered the question through the lens of a positive claim case, stating: “In my view, the principle against arbitrariness is not well-adapted to a positive claim case under section 7 as it is premised on there being a state interference limiting the right to life, liberty or security of the person, and not a failure on the part of the state to do something.” Although concluding that “the Target falls short and its deficiencies contribute to increasing the risks of death and to the security of the person”, the appellants’ complaint was that “the Target does not go far enough”.
[52] The application judge’s analysis of the issue of gross disproportionality was similarly flawed. She correctly instructed herself that gross disproportionality asks whether the “seriousness of the deprivation is totally out of sync with the objective of the measure” by comparing the law’s purpose, “taken at face value”, with its negative effects on the rights of the claimant: Carter, at para. 89. However, she again mischaracterized the issue as the appellants’ complaint that Ontario’s Target did not go far enough concluding that “the principle against gross disproportionality cannot have any application in a case like this one where the issue under section 7 is that the government did not go far enough.”
[53] The question before the application judge was not whether Ontario’s Target did not go far enough in the absence of a positive obligation to do anything. Rather, she should have considered whether, given Ontario’s positive statutory obligation to combat climate change that it had voluntarily assumed, the Target was Charter compliant. She erred by failing to consider the correct question. . R. v. Maric
In R. v. Maric (Ont CA, 2024) the Ontario Court of Appeal considered criminal evidence disclosure doctrine, and it's interaction with Charter s.7 ['Life, Liberty and Security of the Person']:[171] In R. v. Bradford (2001), 2001 CanLII 24101 (ON CA), 52 O.R. (3d) 257 (C.A.), at para. 4, application for leave to appeal dismissed, [2001] S.C.C.A. No. 131, citing R. v. B(F.C.) (2000), 2000 NSCA 35 (CanLII), 142 C.C.C. (3d) 540 (N.S.C.A.), at p. 547, leave to appeal refused, [2000] S.C.C.A. No. 194, this court affirmed that:a) The Crown has an obligation to disclose all relevant information in its possession.
b) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.
c) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.
d) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.
e) In its determination of whether there is a satisfactory explanation by the Crown, the court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.
f) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 rights. ....
[173] .... The bottom line is, the police have no duty to obtain, disclose or preserve records that are in the possession of another: McNeil, at para. 22; R. v. Pascal, 2020 ONCA 287, 387 C.C.C. (3d) 236, at para. 103, leave to appeal refused, [2020] S.C.C.A. No. 214. ...
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