OCLA Executive Director Joseph Hickey, PhD and Researcher Denis Rancourt, PhD have authored a new report (OCLA Report 2022-3) explaining that the present interpretation of Section 7 of the Canadian Charter of Rights and Freedoms is incorrect and non-compliant with the Charter because it causes violations of the right to life, liberty, and security of the person that do not need to be justified by the government.
From the Conclusion:
In the present “penal” interpretation of Section 7 of the Canadian Charter of Rights and Freedoms used by the courts and administrative tribunals, an individual subjected to an infringement of the right to life, liberty and security of the person has the onus to show that implementation of the infringement is unjust. Due to this onus, egregious rights violations are permitted by decision makers without the government being required to demonstrably justify that its actions or laws causing the said violations are reasonable.
State coercion to receive medical injections is a prominent contemporary example, as illustrated in the Quebec Superior Court case of Syndicat des métallos. In that case, the injections were found on an evidentiary basis to be definitely coercive and to infringe the right to life, liberty, or security of the person, yet s. 7 was determined not to have been violated because the implementation was not contrary to principles of fundamental justice.
The Canadian s. 7 jurisprudence is in need of a reboot that respects the text and spirit of the Charter. Justice Wilson’s interpretation of s. 7 expressed in her concurring decision in Re B.C. Motor Vehicle Act would accomplish this and should be considered as a replacement for the penal interpretation.
