Redressing the Harms of Government (In)Action: A Section 7 Versus Section 15 Charter Showdown

Jennifer Koshan

Abstract


When considering the recent Charter claims of vulnerable individuals seeking to redress the harms of government action or inaction, there are two related trends in the appellate case law on sections 7 and 15 that merit attention.1 First, the Supreme Court has undertaken new approaches to equality rights under section 15(1) and 15(2) of the Charter, with a marked lack of success of claims in spite of (or perhaps because of) these approaches. The cases of Kapp,2 Withler,3 and Cunningham4 will be discussed in Part II as illustrations of this trend, along with cases where section 15 was given scant attention, such as Hutterian Brethren,5 AC v Manitoba,6 and Fraser.7 Second, there has been relative success of Charter claims under section 7 where there is strong evidence of harm to life, liberty or security of the person in circumstances where the government action was arbitrary, grossly disproportionate, or overbroad. In Part III, the cases of PHS Community Services,8 Adams,9 and Bedford10 will be shown to reflect this trend.11 These cases present an opportunity to discuss whether section 7 holds advantages over section 15 as a tool for disadvantaged persons challenging the harms of government (in)action, which will be addressed in Part IV. I conclude that while framing government harms as violations of life, liberty or security of the person may be a winning strategy for some Charter claimants, not all such harms can be presented in those terms, and the particular harms captured by section 15 must be given their due.

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