FIRST READING: The seven words in the Charter yielding all of Canada’s wackiest court decisions

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When a B.C. court declared this week that Canadians had a Charter-protected right to traffic in illicit drugs, any veteran court-watcher would have been able to guess the precise section of the Constitution that underlay the new right.  

It was Section 7 of the Charter of Rights and Freedoms, which guarantees the right to “life, liberty and security of the person and the right not to be deprived thereof.”

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Like the rest of the Charter, Section 7 is only 44 years old. And it was written mostly as a means of ensuring fair trials and guarding against unreasonable detention. One early Section 7 decision, for instance, deemed it unconstitutional to automatically jail Canadians for driving with a suspended licence, as the driver might not know their licence was suspended.

But particularly over the past 15 years, Section 7 has wound up doing the heaviest lifting of any other section of the Constitution, with its provisions being used to strike down virtually any law or government action that might theoretically have some adverse impact on life, liberty or personal security.

Legal scholar Dave Snow has called Section 7 an “unconstrained” mechanism for Canadian courts to shape public policy. Snow has also noted that Section 7 challenges are a substantial chunk of what the Supreme Court of Canada deals with each year. In any given year, roughly one third of cases on the Supreme Court docket are challenging some aspect of civil society deemed to be a violation of “life, liberty and security of the person.”

Below, a cursory summary of just some of the new rights that Canadian judges have derived from the words “life, liberty and security of the person.” 

A Charter right to run a brothel  

In the 2013 Bedford v. Canada decision, the Supreme Court of Canada unanimously struck down three laws aimed at criminalizing pimps and brothels, including Criminal Code bans on operating a “bawdy house” or “living off the avails of prostitution.”

But the top court accepted the argument that if brothels weren’t allowed, it would force prostitutes to work on the street, which was more dangerous. Thus, the state was violating their right to “life” and “security of the person.”

“By imposing dangerous conditions on prostitution (laws prohibiting bawdy houses) prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks,” the judgment read, adding “I conclude, therefore, that the bawdy-house provision negatively impacts the security of the person of prostitutes.”

A Charter right to die

Canada is not the only country with doctor-assisted suicide, but it is the one country where rates of assisted suicide have grown fastest and where safeguards are lowest. This is due largely to the fact that Canada was forced to legalize MAID after a rather sweeping 2015 Supreme Court decision, Carter v. Canada.

And at the decision’s core is the right to “life, liberty and security of the person.”

While a right to life may seem to contradict a right to die, the Carter decision held that if the state didn’t allow Canadians to die by suicide legally, they might be tempted to do so illegally, which violated their “right to life.”

Or, as the decision put it, “the prohibition on physician-assisted dying had the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable.”

It added, “on that basis … the right to life was engaged.”

A Charter right to bike lanes

This is the famous one. The one that gets cited most often in critiques of Section 7 overreach.

Toronto cycling activists took the Ontario government to court, arguing that a provincial initiative to remove bike lanes violated their Section 7 rights. And, in Cycle Toronto v. Ontario, a judge in Ontario’s Superior Court of Justice agreed.

The whole case hinged on the argument that removing the lanes could make cycling less safe, thus increasing the cyclist’s risk of dying. “If the removal of the lanes increases risk of harm, this supports the applicants’ position that the rights to life and security of the person are infringed,” it read.

Although, this particular Section 7 right did end up being a step too far. In August, the Ontario Court of Appeal not only struck down the “Charter right to bike lanes” decision, but did it with flair.

Justice Grant Huscroft wrote that while “judges may be tempted to comment on matters of policy,” it was ultimately “illegitimate” to do so.

Wrote Huscroft, “policy is for politics.”

A Charter right to do drugs basically everywhere

This week’s decision from B.C. finding a Section 7 right to traffic in drugs is far from the first time that Section 7 has been used to liberalize the trafficking and consumption of illicit drugs.

In fact, if Canadian downtowns seem more plagued by drug disorder than ever before, that can largely be placed at the feet of a whole category of Section 7 court decisions that has kneecapped the ability of governments to sanction drug use.

The most famous was the 2011 Supreme Court decision that found a Charter right to safe injection sites. The argument being that the absence of a safe injection site might cause drug users to inject in an environment that was less safe, thus infringing their Section 7 rights.

Several subsequent decisions have similarly ruled that it is a Charter violation for the state to take any action that could conceivably make it more dangerous to do illicit drugs. A 2023 B.C. Supreme Court ruling struck down a measure that specifically prohibited drug users from shooting up in playgrounds or splash parks.

B.C. Supreme Court Chief Justice Christopher Hinkson ruled that it risked “irreparable harm” to drug users if the government of B.C. were to follow through with a plan of asking those users to instead do drugs in a slightly different area of the park.

A Charter right to homeless encampments

It is now becoming almost routine that a Canadian municipal government will move to clear a homeless encampment on public land, only to be told this is an unconstitutional violation of Section 7.

The first example came out of B.C. in 2008, with a B.C. Supreme Court decision overruling a City of Victoria bylaw forbidding homeless encampments in city parks, as the bylaw might prompt dispersed campers to seek more dangerous shelter options, thus endangering their right to “life, liberty and security of the person.”

Subsequent decisions have followed the same basic template: Unless a municipal government can offer free shelter to everyone pitching a tent on public land, it’s a Section 7 violation to require them to disperse.

The most recent being an Ontario Superior Court of Justice decision that blocked the provincial government from clearing a Waterloo, Ont., homeless encampment standing in the way of a public transit expansion.

Even though the province argued that there were enough shelter spaces to accommodate everyone in the encampment, the decision argued that they might not want to, which would engage their “security of the person” rights.

“Emergency shelters are not always appropriate or available for people who lack capacity, have serious mental health, and/or substance use issues,” it read.

This week is the Quebec election, and the most likely outcome is that Premier Christine Fréchette is blown out so thoroughly that her party may not even have a caucus in the Quebec National Assembly. She released this video to her social media on Friday, saying that although she may not be a good “debater,” she remains a good “dealmaker.” The comment was delivered in French, although the key words were uttered in English with just enough French inflection that they rhymed. The comment is a likely reference to her lacklustre performance in the campaign’s last leaders’ debate, which appears to have sealed her party’s fate.

First Reading is a Canadian politics newsletter curated by the National Post’s own Tristin Hopper. To get an early version sent directly to your inbox, sign up here.

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