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Charter - s.7 General. R. v. Kloubakov
In R. v. Kloubakov (SCC, 2025) the Supreme Court of Canada dismissed a criminal appeal, this from an Alberta CA ruling that allowed a Crown appeal against an Alberta QB decision in which "the trial judge held that these offences [SS: 'receiving a material benefit from sexual services and of procuring': CCC 286.2 and 286.3] prohibited the safety measures contemplated in Bedford [SS: Canada (Attorney General) v. Bedford (SCC, 2013)] and therefore infringed s. 7 of the Charter".
Here the court considers Charter s.7 broadly:(1) Legal Framework Under Section 7
[136] Section 7 of the Charter states that “[e]veryone 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.”
[137] A claim that legislation breaches s. 7 of the Charter proceeds in two steps. At the first step, the claimant must establish that the impugned legislative provision deprives them of life, liberty, or security of the person. This requires showing a sufficient causal connection between the legislation and the alleged interference with or negative impact on the s. 7 interest. A risk of such a deprivation suffices to engage s. 7 (Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, at para. 56; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 62). At the second step, the claimant must show that this deprivation is not in accordance with the principles of fundamental justice. This requires establishing that an impugned provision conflicts with basic constitutional values, including the values against a law being arbitrary, overbroad, or grossly disproportionate (Bedford, at paras. 57-58, 75-76, 93-96 and 123; Carter, at para. 72; Canadian Council for Refugees, at paras. 56 and 60; J.J., at para. 116).
[138] A law is arbitrary if “there is no connection between the effect and the object of the law” (Bedford, at para. 98; see also paras. 99-100). A law will be considered arbitrary for the purposes of s. 7 if it imposes limits on life, liberty, or security of the person “that have no connection to [the law’s] purpose” (R. v. Smith, 2015 SCC 34, [2015] 2 S.C.R. 602, at para. 23; P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 47:24; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at para. XII-6.66).
[139] A law is overbroad when it is “so broad in scope that it includes some conduct that bears no relation to its purpose” (Bedford, at para. 112 (emphasis in original); J.J., at para. 136; Appulonappa, at para. 26; Carter, at para. 85; Canadian Council for Refugees, at paras. 126-63; Hogg and Wright, at § 47:25; Brun, Tremblay and Brouillet, at para. XII-6.65). A claimant must show that there is “no rational connection between the purposes of the law and some, but not all, of its impacts” (Bedford, at para. 112 (emphasis in original); J.J., at para. 136). As a matter of constitutional principle, a “law must not go further than reasonably necessary to achieve its legislative goals” (Safarzadeh-Markhali, at para. 50). A law is overbroad if it “overreaches in a single case” (Canadian Council for Refugees, at para. 141, citing Bedford, at paras. 113 and 123, and Ndhlovu, at para. 78). The overbreadth principle “allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others” (Bedford, at para. 113; Appulonappa, at para. 26; Carter, at para. 85).
[140] Finally, a law will be grossly disproportionate only “in extreme cases”, if the seriousness of the s. 7 deprivation is “totally out of sync with the objective of the measure”, such that the law “cannot rationally be supported” (Bedford, at para. 120; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 143; Hogg and Wright, at § 47:26; Brun, Tremblay and Brouillet, at paras. XII-6.58 and XII-6.66). An example is a “hypothetical . . . law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk” (Bedford, at para. 120). The draconian impact of such a law would “be entirely outside the norms accepted in our free and democratic society” (para. 120).
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