Public Health Hazards and Section 7 of the Charter

Government decisions that give rise to a health risk to the public at large may have a very real impact on the right to life, liberty and security of the person of individuals and the public at large. Surprisingly, there has been comparatively little litigation examining whether s. 7 of the Canadian Charter of Rights and Freedoms places limits on the ability of government that create or authorize such health risks. After a review of the relevant Canadian court decisions, decisions from other jurisdictions with similar constitutional provisions and relevant international instruments, the author concludes that the scope of s. 7 does extend to protecting members of the public against government decisions that create a serious public health risk. The author then examines what types of government decisions could be vulnerable to such a challenge and concludes that government authorization of private actions that threaten public health must comply with the principles of fundamental justice. The article concludes with an examination of what "principles of fundamental justice" apply to a government decision impacting on public health. The author argues that in some cases the impact on the public’s s. 7 rights is so egregious as to "shock the conscience of the nation," and will violate the principles of fundamental justice. In other cases, s. 7 will require that procedural protections be put in place to notify the public of the potential health risks, to provide the public with an opportunity to be heard, and to ensure that an unbiased decision-maker assesses the health risk and makes an informed and cautious decision.