Does s. 7 of the Charter bestow a positive obligation on the state to provide for life, liberty, and security of the person?
The common understanding is that it doesn't. This understanding is accepted, despite the fact that the SCC specifically left open the possibility that it bestows obligations in the case of Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429 when it stated that the Court "leave[s] open the possibility that a positive obligation to sustain life, liberty, or security of the person may be made out in special circumstances" [para 83].
Well, that possibility could soon be considered in a class action. The representative class are disabled individuals looking to access services through Ontario's Social Inclusion Act 2018 but who have been placed on waitlists and provided no time-estimate for the provision of services they have been deemed to be entitled to. Many of these individuals have experienced a disruption in services, as applicable laws change when disabled individuals reach the age of 18.
The Ontario Court of Appeal, in Marc Leroux as Litigation Guardian of Briana Leroux v. His Majesty the King in Right of the Province of Ontario[Indexed as: Leroux (Litigation guardian of) v. Ontario], 166 O.R. (3d) 321 , held that this is a special case, and that the positive obligation dimension of the claim made by the class in this instance may warrant further consideration at trial. And so, if this class action makes it to trial, the court is likely to consider argument on whether s. 7 contains a positive obligation for the state to provide for life, liberty, and security of the person.
In January of 2024, the SCC refused leave by Ontario to reassess the validity of the certification of the class action. The class therefore remains certified and able to proceed to trial.
What do you think? Should s. 7 be interpreted to require the provision of services that are necessary for life, liberty, and security of the person? Or is this too interventionist an interpretation, and should s. 7 continue to be understood as requiring the state not to 'deprive' individuals of life, liberty and security of the person?