Safety regulations could be up for debate, Court of Appeal warns
The October 2nd issue of The Lawyers Weekly reports on a recent decision of the Ontario Court of Appeal, in which a truck driver challenged safety legislation that forces truck drivers to put speed limiters on their vehicles. When Gene Michaud was charged under the Highway Traffic Act for setting the speed limiter at 109 km/hr. instead of the mandated 105 km/hr., he asserted that the requirement violated his right to security of the person under s. 7 of the Canadian Charter of Rights and Freedoms. Section 7 of the Charter provides that “Everyone 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.” Michaud claimed that, in some circumstances, exceeding 105 km/hr. would allow a truck driver to avoid a dangerous situation, and would be consistent with the legislation’s objective of improving highway safety.
The Court of Appeal held that it was “compelled to find that the appellant has established the legislation deprived him of his right to security of the person in a manner that violated one of the negative principles of fundamental justice, thereby breached his s. 7 Charter rights” as a result of the Supreme Court of Canada’s decision in Canada (Attorney General) v. Bedford. In Bedford, the Supreme Court held that s. 7 is meant to assess “the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law.” As a result, the social benefit of the law is to be considered only under s. 1 of the Charter, when a court determines whether a Charter breach can be justified as a “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The Court of Appeal ultimately determined that the safety legislation in this case was a reasonable limit under s. 1 of the Charter. However, it expressed some concerns with the Bedford approach, stating that the “typical features of safety regulation do not truly engage either deprivation of security of the person or the constitutional principles of fundamental justice”:
It seems strangely incongruous to consider highway safety regulation, or any safety regulation, as “depriving” anyone of “security of the person” or of engaging the “principles of fundamental justice” in the sense demanded by s. 7, especially since it is regulatory and not criminal law.
The Lawyers Weekly spoke to Daniel Sheppard about the Michaud case:
Given that the Supreme Court has never upheld a s.1 justification of a s.7 breach, the Ontario court’s decision in this case highlights the impact Bedford has had on constitutional issues, said Daniel Sheppard, an associate with Goldblatt Partners who works extensively on Charter challenges.
Prior to Bedford, s.7 jurisprudence operated on the understanding that the state “didn’t have to tailor the law exactly perfectly in every circumstance because that was just an unrealistic expectation,” said Sheppard.
But with the Bedford analysis raising the spectre of widely supported safety regulations being struck down on the basis of their impact on one person, he says the use of a s.1 justification to uphold legislation is not surprising.
“It’s really hard to do it the first time, but now that Michaud has done it, I think that courts going forward are going to be less hesitant to go down the s.1 route,” said Sheppard, expressing concern that the case may signal a judicial retreat away from the more recent aggressive use of s.7 to strike down prostitution and assisted suicide legislation in cases like Bedford and Carter v. Canada (Attorney General)  S.C.J. No. 5.
“(This decision) really has set back the jurisprudence quite a bit, particularly for those equality-seeking groups that have real concerns about their life, liberty and security of the person and who only have s.7 available to them to try and vindicate their rights,” said Sheppard.
The decision “taps into a real concern that’s emerged out of Bedford ” and raises big picture questions that need to be answered about the consideration of context within a s. 7 analysis, said Sheppard.
“I think it’s going to be interesting to see how the Supreme Court responds to Justice Lauwers’ critique,” he said. “I think Bedford introduced an entirely new universe of questions into s.7 jurisprudence and it’s going to take us the next five to 10 years to figure them out.