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

Constitutional Forum, Forthcoming

24 Pages Posted: 10 Feb 2013

See all articles by Jennifer Koshan

Jennifer Koshan

University of Calgary - Faculty of Law

Date Written: February 8, 2013

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. First, the Supreme Court has undertaken new approaches to equality rights under section15(1) and 15(2) of the Charter, with claims having a marked lack of success in spite of (or perhaps because of) these approaches. The cases of Kapp, Withler, and Cunningham are discussed as illustrations of this trend, along with cases where section 15 was given scant attention, such as Hutterian Brethren, AC v. Manitoba, and Fraser. Second, Charter claims under section 7 have had relative success 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. The cases of PHS Community Services, Adams, and Bedford are analyzed as reflecting this trend. The paper explores the possible advantages section 7 holds over section 15, and concludes that although 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.

Suggested Citation

Koshan, Jennifer, Redressing the Harms of Government (In)Action: A Section 7 versus Section 15 Charter Showdown (February 8, 2013). Constitutional Forum, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2214173

Jennifer Koshan (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Drive NW
Calgary, Alberta T2N 1N4
Canada

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