Arguing Constitutional Violations of Security of Person under Section 7 of the Charter

         Canadian Charter of Rights and Freedoms

Life, liberty and security of person

7. 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.

It is not every qualification or compromise of a person`s security that comes within the reach of s. 7 of the Charter. The qualification or compromise must be significant enough to warrant constitutional protection. To suggest that any qualification or compromise of security of the person engages s. 7 risks trivializing the protections of the Charter: Cunningham v. Canada, [1993] 2 S.C.R. 143, at p. 151.

Security of the person protects both the physical and psychological integrity of the individual: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 55; R. v. Morgentaler, [1988] 1 S.C.R. 30, at pp. 56 and 173; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 64 & 71. For a restriction of security of the person to be established, the state action in issue must have a serious and profound effect on a person’s psychological integrity: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at paras. 59-60.

The descriptive “serious state-imposed psychological stress” fixes two requirements that must be met before the security of the person interest protected by s. 7 becomes engaged.

First, the psychological harm must be state imposed, that is to say, the harm must result from actions of the state.

 Second, the psychological harm or prejudice must be serious. It follows that not every form of psychological prejudice or harm will constitute a violation of s. 7: Blencoe, at para. 56-57. In other words, there is something qualitative about the type of state interference that ascends to the level of a s. 7 infringement: G. (J.), at para. 59; Blencoe, at paras. 56-57. Nervous shock or psychiatric illness are not necessarily required, but something greater than “ordinary stress or anxiety” is: G. (J.), at paras. 59-60.

The effects of the state interference are to be assessed objectively. Their impact is to be gauged on the psychological integrity of a person of reasonable sensibility, not one of exceptional stability or of peculiar vulnerability: G. (J.), at paras. 59-60.

In R. v. Donnelly, 2016 ONCA 988, for instance, the Court of Appeal for Ontario held that the trial judge applied the wrong standard in considering the effects of the alleged state misconduct on the particular accused, a person with enhanced susceptibility to anxiety and stress as a result of OCD. The state conduct must have a serious and profound effect on a person’s psychological integrity. And these effects are to be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility.
                                                                                     R. v. Donnelly, 2016 ONCA 988, at para 120, 121.

If disclosure by the police of an individual’s HIV status is said to infringe s. 7, it must meet this standard to qualify as a breach. Where a trial judge assumes the section 7 infringement based on any disclosure of private medical information, he or she fails to apply the correct standard.

                                                                                      R. v. Gowdy, 2016 ONCA 989, at para 110.