No Canada: The EM vs Liberty and Security

Charter s.21(1) is a gem amongst the Charter’s human rights:

(1) Every person has the right to liberty and security.

Unlike so many of the Charter’s rights, it isn’t weighed down by caveats (like arbitrariness, unlawfulness, reasonableness or responsibilities) that are common in the ICCPR. I’ve argued elsewhere that the Charter’s drafters did a poor job in removing all such language from the ICCPR’s rights when translating them into Victorian legislation. There is no need for these caveats, because the Charter, unlike the ICCPR, has a general limitations provision in Charter s. 7(2).

In Canada, the first jurisdiction to use a general limitations provision, the equivalent to Charter s. 21(1) is s7 of its Charter:

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.

The words ‘liberty’ and ‘security’ have each been given broad interpretations by the Supreme Court of Canada. ‘Liberty’ has been held to cover a person’s ‘personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance’  and security to cover ‘both the physical and psychological integrity of the individual’. These definitions has relied upon in cases on hot-button culture wars topics like abortion and medical marihuana.

However, these bold consequences may not flow through to Victorians via Charter s.21(1). Why? Because of the Explanatory Memorandum to Charter s21(1) (emphasis added):

Sub-clause (1) establishes a person’s right to liberty and security….This clause is modelled on articles 9 and 11 of the Covenant and embodies safeguards that are well recognised in international law. It is a right concerned primarily with physical liberty! It is intended to operate in a different manner to article [sic] 7 of the Canadian Charter of Rights and Freedoms which guarantees the right to “life, liberty and security of the person” in that the Victorian provision is not intended to extend to such matters as a right to bodily integrity, personal autonomy or a right to access medical procedures!!!

I’ll go out on a limb (albeit a fairly sturdy one) and say that this would have the be the single most rights-reducing EM clause ever. Here are ten reasons why it should be ignored:

1. The EM runs counter to the express words of the Charter. Charter s. 32(2) provides that:

International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

The EM to this section leaves no doubt that Canada is one such foreign jurisdiction:

A number of jurisdictions have incorporated international human rights into domestic law. Decisions from courts in these jurisdictions including the Australian Capital Territory, Canada, New Zealand, South Africa and the United Kingdom may be relevant.

(A bit sad that Hong Kong didn’t make the cut!) Of course, the use of such judgments is subject to a test of ‘relevance’, but it is not clear why Canada’s s.7 fails that test. In particular:

2. The EM draws a false distinction between the ICCPR’s Article 9.1 and Canada’s s.7. Both are clearly drawn from the same source, Article 3 of the Universal Declaration of Human Rights, which says that:

Everyone has the right to life, liberty and security of person.

The Charter’s debt (in common with other charters) to the UDHR was highlighted in its Second Reading Speech, which concludes:

As with all human rights charters, the bill owes much to the vision enshrined in the Universal Declaration of Human Rights that arose in response to the horrors of the Second World War. Emerging from the shadow of so many atrocities and acts of inhumanity, the global community recognised that civilised societies needed a lasting statement of the fundamental values shared by everyone. Because they are so fundamental for the freedom and good government of our communities, those human rights are still relevant today. It is with this background and legacy that this bill brings human rights to the Victorian community in a relevant and practical way. It enshrines values of decency, respect and human dignity in our law, and lays the foundation for protecting human rights in the daily lives of all Victorians.

Article 3, in turn, recalls a still more famous human rights documents, USA’s Declaration of Independence, albeit with Jefferson’s lyrical ‘pursuit of happiness’ replaced by the dour ‘security of person’.

3. The EM promotes a curiously narrow reading of the ICCPR’s Article 9.1 (whose terms are reflected, over multiple sections, in Charter ss. 21 (1) to (3)):

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

The EM’s view seems to be that the second and third sentences of this Article (on arrest and detention) limit the first one. However, Article 9.1 lacks the language of other multi-section articles (e.g. Articles 7, 19.1, 21, 22.2) where the later sentences contain language (‘in particular’, ‘this right’) that refer back to the previous sentence. This view is also held by the UN Human Rights Committee, which commented:

Article 9 which deals with the right to liberty and security of persons has often been somewhat narrowly understood in reports by States parties, and they have therefore given incomplete information. The Committee points out that paragraph 1 is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc

According to Nowak, the first sentence of Article 9 was inserted as the result of a British proposal, which sought to link the narrower issue of arrest to the broader protections of UDHR Article 3. Despite Israeili objections,  a Polish amendment along these lines was adopted. An Australian proposal to joint together the second and third sentences was overwhelmingly defeated.

4. Similarly, the Charter itself – when it splits these multi-section articles across various sub-sections – also includes – and, in the case of the fair hearing right, introduces – language to link them. The exception is , of course, Charter s. 21:

(1) Every person has the right to liberty and security.

(2) A person must not be subjected to arbitrary arrest or detention.

(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law…

5. Anyway, even if the meaning of ‘liberty’ is limited to deprivations caused by arrest and detention (as Nowak argues), why the limit to ‘physical’ liberty? Arrest and detention have effects on personal autonomy that go far beyond the ability to move about, including all manner of controls over personal decision-making, e.g. what to eat, when to wash, what to wear, when to sleep, when to shout, when to take drugs, when to have an abortion…

6. The EM’s assertion that Charter s. 21 is primarily concerned with ‘physical liberty’ sits poorly indeed with the protection offered by Charter s. 21(1) to ‘security’ (and contrasts with s. 22 of the NZBORA, which omits the reference to security in its right to liberty, instead placing it alongside life.) Even if one accepts that arrest and detention are mainly concerned with ‘physical’ liberty rather than other sorts of liberty, where does security fit in? What impact does arrest have on security, exactly? Surely, the likely effect is on a person’s body and health. Why, then, would the right not extend to ‘bodily integrity… or access to medical procedures’? The UN Human Rights Committee (not to mention Nowak) certainly takes the view that the right to security is not constrained by the rest of Article 9:

The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of paragraph one could lead to the view that the right to security arises only in the context of arrest and detention. The travaux préparatoires indicate that the discussions of the first sentence did indeed focus on matters dealt with in the other provisions of article 9. The Universal Declaration of Human Rights, in article 3, refers to the right to life, the right to liberty and the right to security of the person. These . elements have been dealt with in separate clauses in the Covenant. Al though in the Covenant the only reference to the right of security of person is to be found in article 9, there is no evidence that it was intended to narrow the concept of the right to security only to situations of formal deprivation of liberty. At the same time, States parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because that he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them.. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.

7. The EM’s assertion that Charter s. 21(1) doesn’t extend to ‘bodily integrity, personal autonomy or right to access to medical procedures’ makes little sense in the context of the wider Charter. These subject-matters are covered – albeit less simply – by other rights, such as life, privacy and freedom from degrading or cruel treatment. While some of these rights (e.g. privacy) are subject to caveats about arbitrariness or unlawfulness, it’s doubtful that these really differ much in substance from Charter s. 7(2)’s general limitation provision. The main effect of the EM to Charter s. 21(1) is to make these protections more cumbersome (so, I guess, it’d be fairer for me to call it rights-obscuring rather than rights-reducing.) (Nor is the EM needed to avoid the effect of Canadian abortion law. Charter s. 48 does that trick quite nicely.)

8. Who wrote the EM to Charter s. 21(1) and why? What was behind the concern about Canada’s s.7? Or was there any concern at all? The EM to the Charter – while impressively detailed and explanatory in some respects – also contains errors, notably the incorrect date in the EM to Charter s. 49(2). The EM to Charter s. 21 itself contains an error in relation to the discussion of the Canadian Charter, clumsily referring to s. 7 as Article 7. How do we know that the ‘not’ in the final sentence of the EM wasn’t supposed to be in front of the first instance of the word ‘intended’, rather than the second? (Of course, this is unlikely. But it underlines the difficulty of relying on the EM to read down a human right so dramatically.)

9. The EM to Charter s.21(1) – or the spectre of Canada’s decisions on its s.7 – was not mentioned in parliament at any point, nor was it noted in SARC’s report on the Charter. There is, therefore, no evidence that any politician was even aware of what it said. Likewise, the Community Consultation Committee’s report makes no mention of any need to limit Charter s. 21(1) in this way, nor is concern expressed about any of the relevant Canadian decisions. Instead, it just appears to be the opinion of a faceless bureaucrat, now permanently attached to a parliamentary statute. It’s not even clear to me that Parliament could ‘repeal’ or ‘amend’ the EM to get rid of this purported reading down of Charter s. 21(1).

10. Surely it is completely inappropriate for an EM to limit a rights provision. EMs are supposed to explain complex, legalistic provisions – like the various machinery provisions in the Charter – not principled broad language like that used in the various human rights. To hold that the Part 2 are capable of being narrowed by an EM is to detract from the fundamental nature of Part 2 of the Charter, which is described as settting out those rights. The EM to the ACTHRA, in a telling contrast, does not attempt to explain any of the individual rights in that statute’s Part 3, instead contenting itself to a general overview of the sources of those rights (including the UNHDR) and noting what was omitted and why. It is a pity that the mysterious drafter of the Charter’s EM didn’t similarly recognise that Part 2 of the Charter is not a Dog Act.

Full disclosure. I wasn’t aware of the EM to Charter s. 21 until recently, much to my embarrassment. For an interesting instance of where the EM to Charter s. 21 may (or may not) make a difference to a human rights issue in Victoria, see here and here.

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