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Charter - s.7 Legal Rights (7). Drover v. Canada (Attorney General)
In Drover v. Canada (Attorney General) (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here from an application seeking "a declaration that residency requirements for returning officers and other senior election officials in the Elections Act are contrary to s. 7 of the Charter". The case stemmed from a returning officer moving out of the riding and challenging this rule [under s.22(4) of the Canada Elections Act].
The court historically (and extensively) canvasses Charter s.7 doctrine, here particularly the now-discounted (and narrower) 'administration of justice' theme (ie. meaning "only in the context of adjudicative or administrative proceedings" - that is: 'administrative and court litigation'):[129] The Supreme Court of Canada has ruled that the right to liberty in s. 7 of the Charter protects an irreducible, core sphere of personal autonomy wherein individuals may make fundamental and inherently private choices free from state interference. This ambit of the s. 7 right to liberty reflects the foundational principle that Charter rights should be interpreted in a progressive and purposive manner, as mandated by the Supreme Court in and the Court’s rejection of an understanding of s. 7 rights as a mere extrapolation of other legal rights in ss. 8 to 14 of the Charter. The right to liberty in s. 7 does not prevent the state from restricting lifestyle choices, even if those choices may be subjectively important for some individuals. It restricts the state from depriving individuals from exercising those choices inherent to personal autonomy and dignity where such deprivation is contrary to the principles of fundamental justice and not demonstrably justifiable in a free and democratic society.
[130] As the text of s. 7 states, the control over the scope of the protected right to liberty is the requirement that a claimant prove that the state deprived them of the right contrary to the principles of fundamental justice. The concept of fundamental justice has come to be understood to encompass not only procedural guarantees in the context of adjudicative proceedings involving the state, but a safeguard from state restrictions on personal liberty that are arbitrary, overbroad, or vague. An “administration of justice” threshold requirement was proposed as a limiting principle before our current understanding of the concept of fundamental justice had developed. Recent s. 7 appellate decisions have not applied such a threshold.
[131] To date, the Supreme Court has not determined whether the right to liberty in s. 7 protects an individual’s choice of residence. I conclude that it should, and does, for reasons I will explain below. Although the concurring reasons of La Forest J. in Godbout v. Longueuil (City), 1997 CanLII 335 (SCC), [1997] 3 S.C.R. 844, are not binding precedent, I am persuaded that an individual’s right to decide where to live is essential to maintain personal autonomy and dignity, and it therefore falls within the core sphere of deeply personal decisions protected by s. 7.
[132] I am also of the view that the residency requirement imposed by the Elections Act is overbroad, and therefore inconsistent with the principles of fundamental justice. On its face, s. 24(4) continues to require returning officers to live in the electoral district to which they are appointed despite the amendment to s. 22(4). The requirement in s. 24(4) is overbroad because it requires the termination of the appointment of qualified elections officers, like Mr. Drover, despite the respondent’s acknowledgment that their place of residence is not what qualifies them to exercise their functions under the Act. As a result, the application of s. 24(4) deprived Mr. Drover of a s. 7 liberty right contrary to the principles of fundamental justice. The respondent has not established that this violation was justified under s. 1 of the Charter.
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[139] In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 47, the Supreme Court held that a court must conduct a two-stage analysis when government action is challenged under s. 7. First, the court must determine whether the interest asserted falls within the ambit of s. 7. Second, the court must determine whether an individual’s s. 7 right is infringed in a manner not in accordance with the principles of fundamental justice.
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[147] The caselaw on the scope of the right to liberty supports the view that s. 7 is subject to broad and progressive interpretation. It reveals an evolution from an understanding of the right as one of mainly procedural guarantees to a bulwark against indiscriminate or overbroad state action that deprives individuals of their freedom to make deeply private decisions on matters of core importance. This evolution has paralleled the development of a clearer understanding of the concept of fundamental justice. As a result, in assessing whether a claimant has advanced a viable s. 7 liberty claim under the two-stage Blencoe analysis, courts must consider, first, whether an impugned state action or law threatens the claimant’s liberty to freely make decisions that fall within a core sphere of personal autonomy and, second, whether the state conduct or law causing the deprivation of the claimant’s liberty contravenes the principles of fundamental justice. This test, on its face and considered in light of the evolution of the scope of s. 7 in the jurisprudence, does not include an “administration of justice” threshold.
[148] In two early s. 7 cases, Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486 (“Motor Vehicle Reference”) and Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123 (“Prostitution Reference”), Lamer J. (later Lamer C.J.) acknowledged that s. 7’s scope was not confined to criminal matters, but expressed the view that it should be read together with ss. 8-14 of the Charter to “protect individuals against the state when it invokes the judiciary to restrict a person’s physical liberty through the use of punishment or detention, when it restricts security of the person, or when it restricts other liberties by employing the method of sanction and punishment traditionally within the judicial realm”: Prostitution Reference, at pp. 1173-74.
[149] In B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315, the scope of the s. 7 liberty right continued to be a live issue. The respondent, a children’s aid society, had obtained a temporary wardship order to apprehend an infant for a blood transfusion, contrary to her parents’ wishes. The parents, who were Jehovah’s Witnesses, challenged the provisions of the Child Welfare Act, R.S.O. 1980, c. 66 that permitted the aid society to obtain the order, arguing their right to choose medical treatment for their infant in accordance with their faith was protected under s. 2(a) and s. 7 of the Charter. The Court unanimously upheld the impugned provisions.
[150] The bench split, however, on the issue of whether the s. 7 liberty interest protected the parents’ right to decide which medical treatment should be administered to their infant. Justice La Forest, joined by three other members of the Court, endorsed Wilson J.’s approach to the scope of the s. 7 liberty right in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, stating at p. 368 of B.(R.) that:Freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good. The state undoubtedly has the right to impose many types of restraints on individual behaviour, and not all limitations will attract Charter scrutiny. On the other hand, 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. [151] In La Forest J.’s view, the Child Welfare Act deprived the parents of their right to liberty under s. 7 because it intruded into “a protected sphere of parental decision-making ... rooted in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is ill-equipped to make such decisions itself.” He further explained that including this form of decision-making within the ambit of s. 7 did not end the matter:This is not to say that the state cannot intervene when it considers it necessary to safeguard the child’s autonomy or health. But such intervention must be justified. In other words, parental decision-making must receive the protection of the Charter in order for state interference to be properly monitored by the courts, and be permitted only when it conforms to the values underlying the Charter. [152] On the facts of B. (R.), La Forest J. concluded that the state’s actions did not deprive the parents of their rights in a manner that was contrary to the principles of fundamental justice, for two reasons. First, the common law recognizes the state’s parens patriae jurisdiction to intervene to protect children whose lives are in jeopardy and to promote their well-being. Second, the procedure under the Child Welfare Act was consistent with the principles of fundamental justice, for example by putting the onus on the state to prove why it was necessary to intervene, and by giving the parents notice and an opportunity to present evidence and argument.
[153] Chief Justice Lamer, writing for himself, concluded that s. 7 did not guarantee parents the right to make educational or medical decisions on behalf of their children without undue interference by the state. He reiterated his view that the principles of fundamental justice qualified the right to life, liberty and security of the person, and that s. 7’s inclusion under the heading of “Legal Rights” in the Charter reflected its limited purpose. This led him to conclude that:The liberty in question must … be one that may be limited through the operation of some mechanism that involves and actively engages the principles of fundamental justice. Principles of fundamental justice pertain to the justice system. They are designed to govern both the means by which one may be brought before the judicial system and the conduct of judges and other actors once the individual is brought within it. [154] Consequently, in Lamer C.J.’s view, “the type of liberty s. 7 refers to must be the liberty that may be taken away or limited by a court or by another agency on which the state confers a coercive power to enforce its laws”.
[155] None of the remaining four justices in B. (R.) fully endorsed the view expressed by either La Forest J. or Lamer C.J. on the ambit of the right to liberty under s. 7. Justices Iacobucci and Major, joined by Cory J., agreed that s. 7 could encompass the right of parents to have input into the education and medical treatment of their child, but were of the view that it could not extend to a right to deny a child medical treatment for which there is no legitimate alternative. Justice Sopinka, writing for himself, was of the view that it was unnecessary to determine if the s. 7 liberty interest was engaged because “the threshold requirement of a breach of the principles of fundamental justice was not met”. He otherwise agreed with La Forest J.
[156] In the Court’s 1997 decision in Godbout, a majority of judges again declined to consider whether the right to liberty in s. 7 of the Charter was engaged. Justice La Forest, in his reasons, noted that, a plurality of the Court in B. (R.) had agreed that s. 7 must be interpreted “in light of the values reflected in the Charter as a whole, and not just those embodied by the other provisions described as ‘legal rights’”: Godbout, at para. 63. He reiterated about the scope of s. 7 at para. 66:[T]he 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 … 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 … 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. [Emphasis added.] [157] In 1999, in New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 (“G. (J.)”), a majority of the Court again declined to determine the ambit of the liberty right in s. 7. The Court unanimously held that the province was under a constitutional obligation to provide state-funded counsel in certain child protection proceedings to ensure a fair hearing consistent with s. 7 of the Charter. Chief Justice Lamer, writing for the majority, found that proceedings in which the state seeks to obtain custody of a parent’s child implicate the parent’s security of the person, and s. 7 guarantees them the right to a fair hearing. But he expressly declined to address whether the parent’s right to liberty was also engaged, as “there [had] been differing views expressed about the scope of the right to liberty in the Court’s previous judgments”. Justice L’Heureux-Dubé, writing for three justices, endorsed the ambit of s. 7 liberty interests advocated by Wilson J. in Morgentaler and La Forest J. in B. (R.) and Godbout.
[158] In Blencoe, Bastarache J., writing for the majority, affirmed that s. 7’s protection is not confined to the penal context, citing the reasons of Lamer C.J. in G. (J.) for the proposition that s. 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’”: Blencoe, at para. 46. This passage arguably implied that a connection with the administration of justice was required to mount a s. 7 claim.
[159] Yet, two years later in Gosselin v. Québec (Attorney General), 2002 SCC 84 (CanLII), 2002 SCC84, [2002] 4 S.C.R. 429, the Court distanced itself from this proposition. Writing for the majority, McLachlin C.J. acknowledged the past debate about the scope of protected rights under s. 7. She considered Lamer C.J.’s narrow interpretation in G. (J.), which saw the purpose of s. 7 as guarding against deprivations of life, liberty and security of person “as a result of an individual’s interaction with the justice system and its administration”, that is, “the state’s conduct in the course of enforcing and securing compliance with the law”: Gosselin, at para. 77.
[160] Although McLachlin C.J. characterized this narrow interpretation of s. 7 as the “dominant strand”, she concluded that the ambit of the s. 7 liberty right was not a settled point of law. On her reading of the s. 7 jurisprudence, “an adjudicative context might be sufficient, but we have not yet determined that one is necessary in order for s. 7 to be implicated”: Gosselin, at para. 78 (emphasis in original). She instead endorsed a careful, incremental approach:In my view, it is both unnecessary and undesirable to attempt to state an exhaustive definition of the administration of justice at this stage, delimiting all circumstances in which the administration of justice might conceivably be implicated. The meaning of the administration of justice, and more broadly the meaning of s. 7, should be allowed to develop incrementally, as heretofore unforeseen issues arise for consideration. The issue here is not whether the administration of justice is implicated — plainly it is not — but whether the Court ought to apply s. 7 despite this fact.
Can s. 7 apply to protect rights or interests wholly unconnected to the administration of justice? The question remains unanswered. [Emphasis added.] [161] In Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, three members of the Supreme Court held that the administrative restriction imposed by Quebec on purchasing private medical insurance violated s. 7 and could not be justified not under s. 1. Another three held that it would be a “rare case where s. 7 will apply in circumstances entirely unrelated to adjudicative or administrative proceedings” but did not conclusively resolve the matter since they found the claimants had not identified a breach of a principle of fundamental justice. Justice Deschamps, writing for herself, declined to address the Canadian Charter.
[162] The three judge-plurality that would have dismissed the s. 7 claim nevertheless held that “the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system”, quoting from Lamer C.J.’s reasons in the Motor Vehicle Reference, at p. 512 (emphasis added in Chaoulli, at para. 198 (per Binnie, LeBel and Fish JJ.)). It explicitly rejected the idea Lamer C.J. articulated in the Prostitution Reference, that the scope of s. 7 is dictated by its placement under the heading of “Legal Rights” in the Charter, as this would be “unduly formalistic and inconsistent with the large, liberal and purposive interpretation of s. 7 that has been the hallmark of this Court’s approach”: Chaoulli, at para. 198. It concluded that: “The real control over the scope and operation of s. 7 is to be found in the requirement that the applicant identify a violation of a principle of fundamental justice. The further a challenged state action lies from the traditional adjudicative context, the more difficult it will be for a claimant to make that essential link”: Chaoulli, at para. 199 (emphasis in original). This statement shows acceptance of a wider concept of the liberty right and the idea that the “heavy lifting” in circumscribing the right falls to the principles of fundamental justice.
[163] Finally, in Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, [2017] 2 S.C.R. 456, at para. 49, the majority cited Gosselin and Chaoulli and reaffirmed that: “The extent to which s. 7 of the Charter applies outside the context of the administration of justice has yet to be settled in this Court”.
[164] The result of this shift in focus is apparent in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670 (“Cunningham”). After the claimants’ right to membership in a Métis settlement was revoked because they had registered as status Indians, they sought a declaration that the statutory provisions that underlay the revocation offended their rights under ss. 15, 7 and 2(d) of the Charter. The Court held that it did not need to decide whether place of residence is a protected liberty interest under s. 7, as any impact on the claimants’ liberty in that case had not been shown to be contrary to the principles of fundamental justice. It did not, however, refer to an administration of justice threshold, and the revocation did not involve an adjudicative process. It ultimately reinstated the trial judge’s decision, who had held that: “In Chaoulli, the majority of the court accepted that s. 7 can apply outside of the context of the administration of justice, but suggested that, the more distant a challenged action is from the adjudicative context, the more difficult it will be for the claimant to make the essential link to s. 7”: Peavine Métis Settlement v. Alberta (Minister of Aboriginal Affairs & Northern Development), 2007 ABQB 517, 424 A.R. 271, at para. 113.
[165] Likewise, in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, a challenge to the constitutionality of Criminal Code provisions that criminalized aiding and abetting suicide, the Court limited its s. 7 analysis to the effects of those provisions on the rights of individuals who were never at any risk of prosecution. The Court did not conclude that an administration of justice threshold precluded their s. 7 claim. Rather, it found that, by interfering with the ability of people suffering from grievous and irremediable medical conditions to make decisions concerning their bodily integrity and medical care, the impugned provisions trenched on their liberty and impinged on their security of the person: at paras. 66-68, and 70. While the Court recognized the liberty interests of those who could be prosecuted for assisting another’s suicide may have been engaged by the threat of criminal sanctions, it declined to address this issue when it was not the focus of the arguments raised at trial: at para. 69.
[166] This court has similarly analyzed s. 7 liberty claims without any reference to the need for an administration of justice context. For example, in Doe v. Canada (Attorney General), 2007 ONCA 11, 84 O.R. (3d) 81, the appellant argued that Ontario’s assisted conception regime infringed her right to liberty and security of the person under s. 7 of the Charter by restricting her right to determine who would father her child. At para. 32, MacPherson J.A. stated that the s. 7 liberty interest “is engaged when state compulsions or prohibitions affect fundamental life choices” such as a woman’s right to choose with whom to conceive a child, citing Morgentaler, Blencoe, and R. v. Malmo Levine; R. v. Caine, 2003 SCC 74, [2003] 3 S.C.R. 571. He nonetheless concluded that s. 7 does not protect a right “to attempt to conceive using a semen donor’s semen through assisted conception without that semen being screened or tested for infectious diseases” and that the impugned regime was neither overbroad nor arbitrary: Doe, at paras. 33, 36. There is no mention of an administration of justice threshold requirement anywhere in the court’s decision. Nor is there any such reference in other recent decisions of our court that have addressed the essential elements of a viable s. 7 claim, such as Leroux v. Ontario, 2023 ONCA 314, 166 O.R. (3d) 321, leave to appeal refused, [2023] S.C.C.A. No 284 and Mathur v. Ontario, 2024 ONCA 762, 173 O.R. (3d) 81, leave to appeal refused, [2025] S.C.C.A. No. 534. At paras 167-185 the court further considers the 'administration of justice' theme on this case's facts:[185] Section 7 circumscribes claims that may be asserted by requiring claimants to show that the state has deprived them of their rights in a manner that is contrary to the principles of fundamental justice. An administration of justice threshold would have functioned as a proxy for the principles of fundamental justice when they were understood to apply only in the context of adjudicative or administrative proceedings. But the principles of fundamental justice that have driven the outcome of more recent cases where the Supreme Court recognized a s. 7 breach, such as overbreadth, gross disproportionality and arbitrariness could, in principle, apply to review any justiciable state conduct. An administration of justice threshold is therefore out of step with contemporary s. 7 jurisprudence binding on this court, and serves no real purpose except to debar otherwise viable s. 7 claims. . Toth v. Canada (Mental Health and Addictions)
In Toth v. Canada (Mental Health and Addictions) (Fed CA, 2025) the Federal Court of Appeal allowed an appeal of an unsuccessful JR, that against decisions "reiterating the reasoning of the notices of intent to refuse" "requests to Health Canada under subsection 56(1) [SS: 'Exemption by Minister'] of the CDSA for exemptions from section 4 of the Act to allow them to possess, transport, and consume psilocybin mushrooms for a PSAP training program".
Here the court considers whether Charter s.7 applies to this medical treatment issue:[42] The purpose of section 7 is to protect against the "“deprivation”" by the government of a life, liberty or security interest. There is no deprivation here; rather, the HCPs’ asserted Charter interests arise only because they have asked for the right to possess a controlled substance. They have voluntarily chosen to put themselves in jeopardy.
[43] The appellants rely heavily on Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 (PHS). In PHS, health care providers operated a government-sanctioned safe injection site and, by reason of that, could face prosecution under section 4 for carrying out their duties (at paras. 87, 101). Absent an exemption, the site could not continue, and the health care providers could not offer medical care.
[44] The circumstances in this case are far removed from those in PHS. The appellants are not engaged or retained to deliver a sanctioned medical service and consumption and possession of psilocybin is not required as part of the HCPs’ duties. As the Minister noted, the HCPs can offer PSAP without experiential training. The Minister disagreed with the proposition that experiential training resulted in safer or more effective care.
[45] Reliance is also put on R. v. Parker, 2008 FC 33 (Parker), which dealt with the consumption of marijuana for medical purposes. Again, there are key points of distinction between Parker and the case before us. In Parker, the section 7 issue was adjudicated on a factual finding that there was an established medical need for cannabis for the treatment of the applicant’s own medical condition. In this case, those with a medical condition have not applied for an exemption.
[46] Nor can the HCPs be the torch bearers or proxies of the section 7 interests of third parties who may, someday, be their patients. They cannot inflate their own section 7 interests in immunity from prosecution under section 4 of the CDSA by pointing to the section 7 interests of the patient appellants. Charter rights are personal and can only be claimed by the person whose right has been infringed or denied.
[47] While it is beyond dispute that section 7 protects the ability of a person to make reasonable medical choices without fear of criminal sanction, the HCPs’ professional interest in becoming better health care providers and to deliver "“optimum results”" is not a recognized Charter right. To draw an analogy, cancer patients could argue that the government should establish more residency positions in oncology, so that there will be a greater pool of qualified oncologists to respond to the section 7 interests of cancer patients. Courts have consistently rejected the argument that section 7 compels Ministerial discretion to be exercised to give effect to what might be characterized as positive rights (Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78; Cambie Surgeries Corporation v. British Columbia (Attorney General), 2022 BCCA 245).
[48] There was evidence before the Minister that HCPs do not need experiential training to appreciate what the patient experiences, and that patient appellants undergoing PSAP do not need to be treated or assisted by HCPs who themselves have experiential training. Apart from one letter, affixed as an exhibit to an affidavit, by one HCP who had undergone experiential training and found it beneficial, the balance of the evidence did not support the view that PSAP delivered by an HCP who has gone through TheraPsil’s training programs (or similar programs) will be more effective. As the Federal Court judge noted, the HCPs’ exemption requests stated that "“for optimal results”" qualified practitioners should have experience with psilocybin. There is nothing that suggests that TheraPsil’s training program is mandated by either Health Canada or provincial regulatory bodies. As the Federal Court stated, "“the foundation for the ""Charter arguments is not supported by the evidence”" (Reasons, at para. 100).
[49] In this case, the Charter argument arises in the context of a narrow, specific question in an emerging field of medical science. The Minister founded her Decisions on certain facts and certain reasonably-held opinions that, in essence, disagreed with the factual premise that underlies the appellants’ Charter arguments. Pallotta J. found that the Minister addressed the Charter arguments implicitly "“by addressing their very foundation, which is that [HCPs] need experiential training to provide the most safe and effective care to patients”" (Reasons, at para. 112). I agree.
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[53] There is, therefore, a direct connection between the public health objectives of the CDSA and the consideration of the interests of the appellants (TWU, at para. 5; Canada (Attorney General) v. Bedford, 2013 SCC 72, at para. 111). Turning to overbreadth, in R. v. Malmo-Levine, 2003 SCC 74 the Supreme Court of Canada held that a prohibition on the recreational use of controlled substances was not arbitrary where the claimants had failed to establish a need for personal consumption. That is the case here.
[54] Lance was decided after the Federal Court’s judgment was issued in these proceedings and prior to this appeal. In Lance, Fothergill J. found the Minister’s decision to deny a patient access to psilocybin through the Special Access Program unreasonable, in part due to the Minister’s failure to engage with the applicant’s section 7 Charter arguments. The applicant’s "“invocation of the Charter was intended to assist in overcoming [the] potential obstacles [to his Special Access Program request],”" including the availability of lawful alternatives and the inconclusiveness of the science relating to the use of psilocybin in his condition (Lance, at para. 89). Lance bears no similarly to this case, if only by reason of the fact that the applicant in Lance applied for his own exemption under a different regulatory pathway.
[55] Finally, the Decisions do not prevent a person with an established and reasonable medical need from accessing psilocybin, nor do they prevent an HCP from providing PSAP. The Decisions note these alternative pathways to access.
[56] To conclude, the obligation to address the Charter arguments can be no greater than the nature of the Charter interests themselves. The Decisions do not engage the section 7 interests of the HCPs nor the patient appellants and therefore there was no requirement that they be expressly addressed. I would add that even if they were engaged, the Decisions reflect a proportionate balancing of considerations consistent with the Doré /Loyola/TWU framework.
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[83] I have explained why this case is different from PHS. The only Charter interest that is in play here is that of the potential prosecution of the HCPs – a prosecution that would only arise from the HCPs’ voluntarily choosing to possess and consume psilocybin. They are not in the same position as the medical staff running the Insight clinic in PHS who, in the course of conducting their lawful duties, ran the risk of prosecution.
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