Section 7 of the Charter: The Right to Life, Liberty and Security of the Person

Section 7 of the Charter declares 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.”  Section 7 should be read in light of Canadian values and longstanding conceptions of individual wellbeing, community welfare, and the role of the state in safeguarding those interests within Canadian society.[1]

In reviewing how Canadian courts have applied section 7 to issues of poverty, Louise Arbour, in her capacity as the UN High Commissioner on Human Rights, found that: “The first two decades of Charter litigation testify to a certain timidity – both on the part of litigants and the courts – to tackle head on the claims emerging from the right to be free from want.”[2]

The Supreme Court continues to declare its willingness to entertain such Charter claims and that it has been careful to leave open the possibility that section 7 protects socio-economic rights.[3]

 Rights to Adequate Housing and Protection from Poverty under Section 7

In its 1989 judgment in Irwin Toy v Quebec (AG),[4] the Supreme Court of Canada distinguished what it characterized as “corporate-commercial economic rights” which were excluded from the Charter, from human rights of the kind recognized under the ICESCR.[5]  As Chief Justice Dickson explained:

Lower courts have found that the rubric of “economic rights” embraces a broad spectrum of interests, ranging from such rights, included in various international covenants, as rights to social security, equal pay for equal work, adequate food, clothing and shelter, to traditional property — contract rights.  To exclude all of these at this early moment in the history of Charter interpretation seems to us to be precipitous.  We do not, at this moment, choose to pronounce upon whether those economic rights fundamental to human life or survival are to be treated as though they are of the same ilk as corporate-commercial economic rights.  In so stating, we find the second effect of the inclusion of “security of the person” to be that a corporation’s economic rights find no constitutional protection in that section.[6]

In Gosselin v Quebec (AG), the Supreme Court considered a challenge to a provincial social assistance regulation that reduced the level of benefits payable to recipients under the age of thirty by two-thirds, to approximately $145/month, unless they were enrolled in workfare or training programs.  Justice Arbour found that the section 7 right to ‘security of the person’ places positive obligations on governments to provide those in need with an amount of social assistance adequate to cover basic necessities.[7] Although the majority found such an interpretation to be inapplicable on the facts of Gosselin, viewing the impugned welfare regime as a defensible means of encouraging young people to join the workforce, the majority of the Court nonetheless left open the possibility that this interpretation of section 7 could be applied in a future case.  Chief Justice McLachlin stated in this regard:

The question therefore is not whether s. 7 has ever been — or will ever be — recognized as creating positive rights.  Rather, the question is whether the present circumstances warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards.  I conclude that they do not.  With due respect for the views of my colleague Arbour J., I do not believe that there is sufficient evidence in this case to support the proposed interpretation of s. 7.  I leave open the possibility that a positive obligation to sustain life, liberty, or security of the person may be made out in special circumstances.[8]

As noted by the B.C. Supreme Court in Victoria (City) v Adams, statements made by Canadian governments in their reporting to UN human rights treaty monitoring bodies support an interpretation of section 7 that would provide remedies to violations of the right to housing and to an adequate income, as proposed by Arbour J. in the Gosselin case.[9]  In response to a question from the CESCR in the context of Canada’s second periodic review before the UN CESCR, the federal government assured the Committee that “[w]hile the guarantee of security of the person under section 7 of the Charter might not lead to a right to a certain type of social assistance, it ensured that persons were not deprived of the basic necessities of life.”[10] This position was again asserted by the Canadian government in responding to questions from the CESCR relating to its 1998 report on Canada’s compliance with its social and economic rights obligations under the ICESCR.[11]

In its recent decision in Canada (Attorney General) v. PHS Community Services Society (Insite), the Court reaffirmed that where a law creates a risk to health, this amounts to a deprivation of the right to security of the person, and that “where the law creates a risk not just to the health but also to the lives of the claimants, the deprivation is even clearer.”[12]

In Chaoulli v Quebec (AG),[13] a majority of the Supreme Court found that the province’s failure to ensure access to healthcare of “reasonable” quality within a “reasonable” time engaged the right to life and security of the person and triggered the application of section 7 and the equivalent guarantee under the Quebec Charter of Rights and Freedoms.[14]  The dissenting justices likewise accepted the trial judge’s finding that “that the current state of the Quebec health system, linked to the prohibition against health insurance for insured services, is capable, at least in the cases of some individuals on some occasions, of putting at risk their life or security of the person.”[15] The dissenting Justices disagreed, however, with the majority’s conclusion that the province’s ban on private health insurance was arbitrary, concluding instead that “Prohibition of private health insurance is directly related to Quebec’s interest in promoting a need-based system and in ensuring its viability and efficiency.”[16]

With increased understanding of the significant health consequences of homelessness and poverty, it has become obvious that governments’ failure to ensure reasonable access to housing and to an adequate standard of living for disadvantaged groups undermines section 7 interests – certainly as directly as the regulation of private medical insurance.  In a recently filed Charter application in the Ontario Superior Court (Tanudjaja v Canada)[17], a number of individuals who have experienced the effects of homelessness and inadequate housing are challenging the federal and provincial governments’ failure to adopt housing strategies.  They are arguing not only that governments’ action but also government inaction amount to a violation of their Charter rights, including to security of the person under section 7.

iii) Fundamental Justice and Arbitrary State Responses to Poverty and Homelessness

Section 7 of the Charter requires that any deprivation of the right to life, liberty or security of the person “must be in accordance with the principles of fundamental justice Principles of fundamental justice “are informed by Canadian experience and jurisprudence, and take into account Canada’s obligations and values, as expressed in the various sources of international human rights law by which Canada is bound.”[18]

A core component of fundamental justice under section 7 is the principle that governments cannot arbitrarily limit rights to life, liberty and security of the person.  Prior to the recent Insite case,[19] the Court’s consideration of arbitrariness had been largely confined to the question of whether provisions of existing laws that infringe rights to life, liberty and security of the person, were arbitrary.  The Court had not been called upon to consider whether a government’s failure to take action, or to adopt positive measures to protect the right to life or security of the person, were arbitrary and so fundamentally unjust within the meaning of section 7.  After rejecting the claim that the federal Controlled Drugs and Substances Act[20] itself violated section 7[21] the Court considered whether the Minister of Health’s failure to grant an exemption, as provided under the Act, was in accordance with principles of fundamental justice.[22]  Reviewing the overwhelming evidence of the benefits of Insite’s safe injection and related health services to those in need of them, and the effects of a failure to ensure the continued provision of those services, the Court found that the Minister’s failure to grant an exemption was arbitrary.  In particular, the Court concluded that: “The effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.”[23]

[1] See generally Martha Jackman, “The Protection of Welfare Rights under the Charter” (1988) 20:2 Ottawa L Rev 257 [Jackman, “Welfare Rights”].

[2] Louise Arbour, “‘Freedom from want’ – from charity to entitlement” (LaFontaine-Baldwin Lecture, delivered at the Institute for Canadian Citizenship, Quebec City, 3 March 2005), online: UNHCHR [Arbour, “Freedom from want”].

[3] Irwin Toy v Quebec (AG), [1989] 1 SCR 927 [Irwin Toy].

[4] Ibid.

[5] Ibid at 1003-4.

[6] Ibid.

[7] Gosselin v Quebec (AG), [2002] 4 SCR 429 at para 332 [Gosselin].

[8] Ibid at para 82. See also Martha Jackman, « Sommes nous dignes? Légalité et l’arrêt Gosselin » (2006) 17 RFD 161; Gwen Brodsky, et al, “Gosselin v Quebec (Attorney General)” (2006) 18:1 CJWL / RFD 189; Gwen Brodsky, ”Gosselin v. Quebec (Attorney General): Autonomy With a Vengeance” (2003) 15:1 CJWL / RFD 194; Shelagh Day et al, Human Rights Denied: Single Mothers on Social Assistance (Vancouver: Poverty and Human Rights Centre, 2005).

[9] Victoria (City) v Adams, 2008 BCSC 1363 at para 98, 299 DLR (4th) 193 [Adams]. Canada also stated to the United Nations Human Rights Committee that the right to life in the ICCPR imposes obligations on governments to provide basic necessities. See Supplementary Report of Canada in Response to Questions Posed by the United Nations Human Rights Committee, 1983, UN Doc CCPR/C/1/Add.62 at 23.

[10] United Nations Committee on Economic, Social and Cultural Rights, Summary Record of the Fifth Meeting, UNCESCROR, 1993, UN Doc E/C.12/1993/SR.5 at paras 3, 21.

[11] United Nations Committee on Economic, Social and Cultural Rights, Responses to the Supplementary Questions to Canada’s Third Report on the International Covenant on Economic, Social and Cultural Rights, 1998, UN Doc HR/CESCR/NONE/98/8 at questions 16, 53.

[12] Canada (Attorney General) v PHS Community Services Society, [2011] 3 SCR 134 at para 93 [PHS Community Services].

[13] Chaoulli v Quebec (AG), [2005] 1 SCR 791 [Chaoulli].

[14] Ibid at para 105. The majority went on to find that the ban on private insurance violated section 7 principles of fundamental justice and could not be justified under section 1 of the Charter. For a critique of the Chaoulli decision see Martha Jackman, “‘The Last Line of Defence for [Which?] Citizens’: Accountability, Equality and the Right to Health in Chaoulli“ (2006) 44 Osgoode Hall LJ 349; Colleen Flood, Kent Roach & Lorne Sossin, eds, Access to Care, Access to Justice: The Legal Debate over Private Health Insurance in Canada (Toronto: University of Toronto Press, 2005); Marie-Claude Prémont, “L’affaire Chaoulli et le système de santé du Québec: cherchez l’erreur, cherchez la raison” (2006) 51:1 McGill LJ 167.

[15] Chaoulli, supra note 255 at para 200.

[16] Ibid at para 256.

[17] Tanudjaja v Canada, Ont Sup Ct File no CV-10-403688 (2011) [Tanudjaja].

[18] Canada (Prime Minister) v Khadr, 2010 SCC 3 at paras 23, 48, [2010] 1 SCR 44.

[19] PHS Community Services, supra note 251.

[20] SC 1996, c 19.

[21] PHS Community Services, supra note 251 at paras 112-115.

[22] Ibid at paras 127-136.

[23] Ibid at para 133.

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